Case No: C1/2004/1410
Neutral Citation Number: [2004] EWCA Civ 1711
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE MITTING

Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday, 16 December 2004
Before :

LORD JUSTICE KENNEDY
LORD JUSTICECHADWICK
and
SIR CHRISTOPHER STAUGHTON
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Between :

	LB of Lambeth	Appellant	
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	Annette Grant	Respondent	

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(Transcript of the Handed Down Judgment of
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Charles Béar QC (instructed by Sternberg, Reed, Taylor & Gill, IG11 8DN) for the London Borough of Lambeth
Stephen Knafler (instructed by Steel & Shamash, SE1 7AA) for Annette Grant

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Judgment
Lord Justice Kennedy : 
1.	This is an appeal by the London Borough of Lambeth (Lambeth) from a decision of Mitting J, sitting in the Administrative Court List, who on 17th June 2004 gave judgment for the claimant and made certain declarations in her favour.  
Background.
2.	The claimant, who was born on 16th March 1969, is a Jamaican.  In November 1992, as Annette Murdock, she entered the United Kingdom with a visitor’s visa which permitted her to remain here for 6 months.  In 1993 and 1994 she made applications for leave to remain which were refused.
3.	In 1995 she married Earl Grant, a British national, and she then applied unsuccessfully for leave to remain on the basis of marriage.  She had given birth to two children in Jamaica, and in 1997 the father of those children died in the United States.  In 1998 those children, Damar Matthan (born 25th January 1989) and Chantel Matthan (born 30th May 1990), came to England to live with their mother.  On 10th November 2000 she gave birth to her third child, Therondo Grant, the son of Earl Grant, who acquired his father’s British nationality.  In July 2002 she separated from her husband, and in late 2002 she sought the assistance of Lambeth in relation to accommodation.
4.	On 14th January 2003 the claimant sought leave to remain on extra-statutory and compassionate grounds, and referred, apparently for the first time, to her children.  We have reason to believe that application was refused on 15th October 2004, but when the matter was heard before us the claimant had yet to receive formal notice of refusal.
5.	Early in 2003 Lambeth agreed to provide the claimant and her children with temporary accommodation pending completion of an assessment of the children’s needs under the Children Act 1989.  The author of the assessment concluded that it would be in the best interests of the claimant and her family for them to go to Jamaica.  Lambeth then threatened to withdraw support, whereupon the claimant obtained permission to apply for judicial review.  The substantive hearing was delayed because of the pending decision of this court in R (M) v Islington LB [2004] EWCA Civ 235 in which judgment was delivered on 2nd April 2004, and the current position, as recorded by Mitting J, is that Lambeth is paying £19,000 per annum to accommodate the claimant and her three children in an hotel in London SW16.  It is not entirely clear whether that figure includes £2,340 per annum which is paid by way of subsistence but for present purposes that does not matter.  The children go to local schools, and the circumstances of the claimant and her children are significantly better than they would be if they were to go to Jamaica, but neither the claimant nor either of her two elder children have any right to be here.  Her Jamaican passport, which is held by the Home Office, has expired.  To renew it would cost money and take 8 to 10 weeks.  She cannot afford air fares, and her solicitors were told by the Home Office that if she were to return to Jamaica her application for indefinite leave to remain would automatically lapse, and would have to be renewed from Jamaica.  
6.	Lambeth’s position has always been that it has no long term obligation to accommodate and support the claimant and her children.  The claimant asserts that it must do so until the Secretary of State determines her most recent application for indefinite leave to remain, and if he rejects it (or has rejected it) until he sets removal directions with which she does  not co-operate.
The decision under challenge.
7.	On 6th April 2004, following the decision of this court in M, Lambeth advised the claimant’s solicitors that its position was unchanged.  It needed to conserve its resources for those most in need.  It was prepared to pay the costs of moving the claimant and her children to Jamaica (including air fares, passport fees, etc) and to bear the costs of accommodation only until travel arrangements could be put in place.  It was that decision of 6th April 2004, as explained by Mark Rapley in his third witness statement dated 7th April 2004, which was quashed in the court below.  The judge then made the following declarations –
“(1) the Defendant is obliged to provide the claimant and her children with accommodation under the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 until whichever is the soonest of the following eventualities:
(a) the claimant and her children obtain funding enabling them to return to Jamaica and all the necessary travel and passport arrangements are in place, or would have been in place if the claimant had taken reasonable steps to that end
(b) the claimant and her children cease to need accommodation
(c) the Secretary of State for the Home Department makes removal directions and the claimant fails to comply with such removal directions
(2) section 2 of the Local Government Act 2000 does not empower the defendant to fund the cost of travel to Jamaica of the claimant and her children.”
8.	Before I turn to the judge’s reasons for his decision it is necessary to look at the statutory background, and at the current legislation which the judge had to apply to this case.
The Statutory background.
9.	In February 1996 the government attempted by secondary legislation to restrict access to state benefits by failed asylum-seekers and by asylum-seekers who did not claim asylum at once on arrival.  In R v Secretary of State for Social Services ex parte JCWI [1997] 1 WLR 275 it was held in this court that the secondary legislation was ultra vires.  Parliament then used schedule I to the Asylum and Immigration Act 1996 to enact in primary legislation the changes which had been attempted earlier in 1996, with the result that asylum-seekers adversely affected turned to local authorities for assistance.  They invoked section 21(1) of the National Assistance Act 1948, as amended, which provided that a local authority -
“To such extent as the Secretary of State may direct, shall make arrangements for providing -
(a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them …..”
The use of that statute in relation to destitute asylum-seekers was approved by this court in R v Westminster City Council ex parte M [1997] 1 CCLR 85.  Then, in R v Wandsworth LBC ex parte O [2000] 1 WLR 2539, this court had to consider the plight of two Africans, both of whom were overstayers, and who had been denied assistance under section 21 by local authorities because they were in this country illegally.  By then destitute asylum-seekers had been to some extent provided for in Part VI of the Immigration and Asylum Act 1999, and it had been held at first instance in R v Brent LBC ex parte D 1 CCLR 234 that in general illegal entrants and overstayers were not entitled to assistance under section 21 because they were relying on their own wrongdoing in choosing to remain in the United Kingdom.  Section 116 of the 1999 Act had amended the 1948 Act by introducing section 21(1A) which applied to, amongst others, those here illegally, and provided that such a person -
“…may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely -
(a) because he is destitute; or
(b) because of the physical effects, or anticipated physical effects, of his being destitute.”
In ex parte O this court applied a strict interpretation to the wording of section 21(1A).  At 2548 G Simon Brown LJ said -
“The word ‘solely’ in the new section is a strong one and its purpose there seems to me evident.  Assistance under the Act of 1948 is, it need hardly be emphasised, the last refuge for the destitute.  If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled.”
In other words if the person claiming benefit could point to something in addition to destitution his claim could be entertained.  At 2552H Simon Brown LJ said -
“Section 21(1) affords the very last possibility of relief, the final hope of keeping the needy off the streets.  Not even illegality should to my mind bar an applicant who otherwise qualifies for support.  For my part I would hold that the local authority has no business with the applicant’s immigration status save only for the purpose of learning why the care and attention ‘is not otherwise available to them’ as section 21(1) requires….. It should be for the Home Office to decide (and ideally decide speedily) any claim for E.L.R. and to ensure that those unlawfully here are promptly removed, rather than for local authorities to, so to speak, starve immigrants out of the country by withholding last resort assistance from those who today will by definition be not merely destitute but for other reasons too in urgent need of care and assistance.”
So the claims of some illegal overstayers were held entitled to consideration under section 21 under the 1948 Act.
10.	In R(J) v Enfield LBC [2002] EWHC 432 (Admin) the applicant was from Ghana.  She was HIV positive, and was an overstayer, who had applied for leave to remain.  She also had a daughter born in the United Kingdom.  She received only child benefit, and her requests for assistance in obtaining accommodation made under section 21 of the 1948 Act and section 17 of the Children Act 1989 were refused.  Elias J held, amongst other things, that there was power under section 2 of the Local Government Act 2000 to provide financial assistance in acquiring accommodation, and if that was the only way to avoid a breach of the applicant’s rights under Article 8 of the European Convention on Human Rights then the local authority was obliged to adopt that course.  Section 2 of the 2000 Act is in very wide terms.  So far is material it provides-
“(1) Every local authority are to have power to do anything which they consider is likely to achieve any one or more of the following objects -
(a) the promotion or improvement of the economic well-being of their areas;
(b) the promotion or improvement of the social well-being of their area, and
(c) the promotion or improvement of the environmental well-being of their area.
(2) The power under subsection (1) may be exercised in relation to or for the benefit of -
(b) all or any persons resident or present in a local authority’s area.”
But section 3 provides -
“(1) The power under section 2(1) does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation of their powers which is contained in any enactment (whenever passed or made).  
(8) In this section ‘enactment’ includes an enactment comprised in subordinate legislation (within the meaning of the Interpretation Act 1978.)”
The Current legislation.
11.	Section 54 of the Nationality Immigration and Asylum Act 2002 gives effect to schedule 3 to the Act, and paragraphs 4 to 7A of the schedule set out the classes of person to whom the schedule applies.  The fourth class, set out in paragraph 7, are those unlawfully in the United Kingdom who are not asylum-seekers, and it is common ground that the respondent in the present case is in that class.  
12.	Paragraph 1 states that a person to whom it applies shall not be eligible for support or assistance under a variety of provisions, including section 17 of the Children Act 1989 (welfare and other powers which can be exercised in relation to adults) and section 2 of the Local Government Act 2000 (promotion of well-being).  That general exclusion from benefits is then made subject to certain exceptions, and paragraph 2, so far as relevant, provides -
“(1) Paragraph 1 does not prevent the provision of support or assistance - 
(a) to a British citizen, or
(b) to a child, or
(c) under or by virtue of regulations made under paragraphs 8, 9 or 10 below …
(5) A local authority which is considering whether to give support or assistance to a person under a provision listed in paragraph 1(1) shall act in accordance with any relevant guidance issued by the Secretary of State ….”
Paragraph 3 then states -
“Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of -
(a) the person’s Convention rights, …”
As already explained paragraphs 4 to 7A identify those to whom the schedule applies - those with refugee status abroad (paragraph 4), citizens of other EEA states (paragraph 5), failed asylum-seekers (paragraph 6), persons unlawfully in the United Kingdom (paragraph 7), and failed asylum-seekers with family (paragraph 7A).
13.	Paragraph 8 provides that the Secretary of State may make regulations providing for arrangements to be made enabling those with refugee status abroad and citizens of other EEA states to leave the United Kingdom.  Paragraph 9 enables him to make regulations providing for arrangements to be made for the accommodation of such persons pending the implementation of the travel arrangements made by virtue of paragraph 8 where the person has a dependant child.  
14.	Paragraph 10 contains the power to make regulations which is relevant in this case.  It provides -
“(1) The Secretary of State may make regulations providing for arrangements to be made for the accommodation of a person if-
(a) paragraph 1 applies to him by virtue of paragraph 7, and
 (b) he has not failed to co-operate with the removal directions issued in respect of him.
(2) Arrangements for a person by virtue of this paragraph -
(a) may be made only if the person has with him a dependant child and
(b) may include arrangements for a dependant child.”
Paragraph 11 states that regulations made under paragraphs 8, 9 or 10 may, amongst other things -
“(e) Require a local authority or another person to have regard to guidance issued by the Secretary of State in making arrangements”.
Paragraph 14 deals with the duty of a local authority to inform the Secretary of State of those in its area who fall within the scope of the schedule because they are failed asylum-seekers, unlawfully in the United Kingdom, or failed asylum-seekers with families.
The Withholding Regulations 2002.
15.	The Regulations made by the Secretary of State pursuant to the powers set out in schedule 3 are the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002, and Regulation 3 provides-
“(1) A local authority may make arrangements (‘travel arrangements’) enabling a person with refugee status abroad or who is an EEA national to leave the United Kingdom to travel to the relevant EEA state.
(2) A local authority may make arrangements for the accommodation of a person in respect of whom travel arrangements have been made or are to be made pending the implementation of those arrangements.
(3) A local authority may make arrangements for the accommodation of a person unlawfully in the United Kingdom who has not failed to co-operate with removal directions issued in respect of him.
(4) Arrangements for a person by virtue of paragraphs (2) or (3)-
(a) may be made only if the person has with him a dependant child, and
(b) may include arrangements for that child.”
Paragraphs (1) and (2) of that Regulation clearly deal with those to whom paragraphs 4 and 5 of schedule 3 refer, but Regulation 3(3) is free-standing, subject to the restrictions set out in paragraph (4) and gives local authorities a discretionary power to accommodate.
16.	Regulation 4 then provides -
“(1) Travel arrangements and arrangements for accommodation must be made so as to secure implementation of those arrangements at the lowest practicable cost to the local authority.
(2) Subject to the requirements of paragraph (1), travel arrangements made in respect of a person must be made so that the person leaves the United Kingdom as soon as practicable.
(3) Travel arrangements and arrangements for accommodation may not include cash payments to a person in respect of whom the arrangements are made and must be made in such a way as to prevent the obtaining of services or benefits other than those specified in the arrangements.
(4) A local authority must have regard to guidance issued by the Secretary of State in making travel arrangements and arrangements for accommodation.”
The Regulations came into force on 8th January 2003 and, as envisaged, the Home Office provided some written guidance.
The Guidance.
17.	The guidance was accompanied by a draft questionnaire for applicants to complete to assist the relevant local authority to decide whether the applicant was eligible for support or assistance and paragraph 25 of the guidance stated -
“Section D (of the questionnaire) questions aim to identify those who are unlawfully present in the UK.  Persons unlawfully present in the UK are ineligible for Schedule 3 support or assistance.  Local authorities should notify their local immigration office of such cases; ….”
That reflects the general position set out in paragraph 1 of schedule 3, then, under the heading “Guidance to assist authorities to determine whether to make travel arrangements/grant temporary short-term accommodation” paragraphs 27 and 28 of the guidance state -
“27.  The Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 (hereafter referred to as “the Regulations 2002”) give limited powers to local authorities to make arrangements for:
(a) Nationals of other EEA members states; and
(b) Those with refugee status in another EEA member state
to travel back to that member state.  No arrangements may be made in respect of failed asylum-seekers and those unlawfully present in the UK – responsibility for making travel arrangements for these groups of persons rests with the Home Office Immigration and Nationality Directorate.
28.  Additionally, local authorities are also granted a power under the Regulations 2002 to grant temporary short-term accommodation to some classes of person listed in schedule 3 pending departure from the United Kingdom.  The powers to grant temporary accommodation are limited to the following classes of person who have with them a dependant child:
(a) Nationals of EEA states other than the UK;
(b) Those with refugee status in another EEA member state; and
(c) Those unlawfully present in the UK.”
The next section of the guidance is headed “Temporary accommodation” and begins with paragraphs 31 and 32 which state -
“31.  Accommodation is purely a temporary measure to allow a person with dependant children to be accommodated pending departure from the UK.  Local authorities should have regard to the desirability of ensuring that the overall cost of accommodation and the return journey is as cost-effective as possible.
32.  For those persons returning to EEA member states, it is preferable if accommodation does not continue for a period of more than a further five days from the date the family first presented for support or assistance to the local authority.  For those returning to other countries, it is preferable if accommodation does not continue for a period of more than a further ten days from the date the family first presented for support or assistance to the local authority.”
Paragraph 35 deals with those who fail to comply with removal directions, and is therefore not directly relevant in the present case, but the approach is instructive.  It reads -
“In respect of individual(s) here unlawfully, the Home Office Immigration and Nationality Directorate will inform local authorities should the individual refuse to co-operate with the removal directions.  In such an event all accommodation must be immediately terminated as set out in the Regulations 2002.  Offers of care may be made to any children under section 20 of the Children Act 1989.  Again, it follows from the Regulations 2002 that no further accommodation, or any other form of support as defined in paragraph 1(1) of schedule 3 of the Nationality, Immigration and Asylum Act 2002 should be provided to the adults.”
Children Act 1989.
18.	The only other statutory provisions to which I need refer are sections 17 and 20 of the Children Act 1989.  So far as material they provide-
“17(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)-–
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families, 
by providing a range and level of services appropriate to those children’s needs.
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare.
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash.
20(1) Every local authority shall provide accommodation for any child in need within their area who appears to require accommodation as a result of –
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.”
In the Administrative Court.
19.	Before Mitting J Mr Knafler, for the claimant, submitted that the starting point must be section 17 of the Children Act 1989, but the judge held that so far as the claimant herself is concerned she can derive no assistance from that section.  That is the effect of schedule 3 to the 2002 Act, as was accepted by all three members of this court in the M case.
20.	The judge then turned to the Withholding Regulations and in particular to the local authority’s discretionary power to accommodate which is set out in Regulation 3(3).  He said that the Article 8 rights of the claimant and each of her children may have the practical consequence of requiring that power to be exercised so as to provide accommodation because the mutual enjoyment by a parent and child of each others company constitutes a fundamental element of family life.  If the family were to become homeless the local authority would have to accommodate the children, pursuant to section 20 of the Children Act, but enforced separation would violate their rights under Article 8.  The judge did not accept Mr Knafler’s principal submission, which was that as immigration is the responsibility of the Secretary of State the local authority is obliged to provide accommodation pursuant to Regulation 3(3) until the Secretary of State decides (if he does) that the claimant and her two elder children should not be permitted to remain, and issues removal directions with which the claimant does not co-operate.  As the judge pointed out, there is no Convention duty to provide support to foreign nationals who are in a position freely to return home (see R (Kimani) v Lambeth LBC [2004] 1 WLR 272), and the right to family life is not infringed because it must be conducted outside the United Kingdom in a country with a lower standard of living (see R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840).  So the judge found, at least by implication, that if the claimant had, or could be provided with, the means to travel to Jamaica with her three children Lambeth would not have to provide accommodation, but he was not persuaded that Lambeth was entitled to invoke section 2 of the Local Government Act 2000 to provide the means.
21.	The judge accepted that the power to be found in section 2 is wide enough, but it is restricted by schedule 3 to the 2002 Act, and section 3 of the 2000 Act makes clear the efficacy of that restriction.  The judge referred to paragraph 27 of the Guidance, and to the absence of any power in Regulation 3(3) of the Withholding Regulations to fund travel arrangements, and he concluded thus -
“40. In my view the statutory scheme contains a restriction, or limitation, on the exercise of Lambeth’s section 2 power to fund travel arrangements for persons who are in the United Kingdom unlawfully and are not asylum-seekers for the following reasons.  First, the words in brackets in section 54 are words of restriction or limitation on local authorities’ powers.  In other words, schedule 3 is to have effect for the purpose of imposing restrictions or limitations on the exercise of those powers.
41. Secondly, the technique used in schedule 3 to impose those restrictions and limitations is to declare that certain categories of person are to be ineligible for support or assistance under the listed local authority and statutory powers.  A local authority cannot provide relevant support or assistance to a person who is ineligible to receive it.
42. Thirdly, regulations could have provided for making arrangements under section 2, but have not, in fact, done so.  There would be no need for regulations for that purpose if the power to make such arrangements was not restricted or limited by schedule 3.
43. Fourthly, the guidance emphasises the restriction or limitation present in the statutory scheme.  
44.  Lest it be argued that it is necessary, to avoid a breach of Convention rights, that the power to fund travel arrangements must exist the answer is to be found in Regulation 3(3) as interpreted by the majority of the Court of Appeal.  The local authority has a power to fund accommodation until the Secretary of State sets removal directions and the claimant does not co-operate with them.  While accommodation is provided, there is no need for the purchase of tickets to avoid a breach of Convention rights.
45.  My conclusion, therefore, is that Lambeth cannot lawfully fund the claimant’s travel arrangements.  If voluntary arrangements are to be put in place, the funding must come from elsewhere.”
In this Court.
22.	For Lambeth Mr Béar QC submitted that the judge fell into error because he assumed that the existence of the power in Regulation 3(3) of the Withholding Regulations meant that the local authority was required to use that power before it could resort to section 2 of the Local Government Act to avoid a breach of Convention rights by incurring a lesser expenditure of a different type.  Mr Béar submitted that the proper approach for the local authority to adopt was to decide whether in all the circumstances it was appropriate to exercise its powers under Regulation 3(3) having regard not only to the immigration status and needs of the claimant and her children but also to its own resources, the other demands upon those resources, and the existence of the power set out in paragraph 3 of schedule 3 to the 2002 Act to invoke its powers under section 2 of the Local Government Act if and to the extent necessary to do so in order to avoid a breach of a Convention right.  That, Mr Béar submitted, was the approach adopted by the local authority in this case, and its conclusion was one with which the judge should not have interfered.  As illegal overstayers the claimant and her two elder children had no right to be accommodated at public expense, although if abandoned or destitute the children would have rights of their own.  The claimant and her children could not provide for themselves and were in need, but the local authority had limited resources subject to heavy demands, and it could enable the claimant and her children to maintain their rights under Article 8 of the Convention and avoid destitution by making arrangements for (1) them to travel to her homeland, and (2) their accommodation for a short time until the travel arrangements could take effect.  The claimant and her children would not be compelled to go.  The local authority had no power to deport her, but if she chose to reject the offer made to safeguard her rights under Article 8 then Lambeth had no duty to accommodate her.  As the judge accepted, if from some independent source the claimant could be provided with the means to travel with her children to Jamaica then Lambeth would be under no obligation to accommodate her, and it would be odd, to say the least, if because there happens to be no such source Lambeth cannot provide it, and must instead accept a much heavier and open-ended financial burden.
23.	Mr Béar submitted that the fact that the Withholding Regulations make specific provision for a local authority to make travel arrangements in relation to certain categories of person does not mean that Lambeth cannot make travel arrangements in relation to others.  The power is within the ambit of section 2 of the Local Government Act, and there is nothing in the 2002 Act or in the Regulations made thereunder which can properly be regarded as a prohibition, restriction or limitation on that power once it is apparent that it is necessary for it to be exercised to avoid a breach of the claimant’s Convention rights (see paragraph 3 of schedule 3 to the 2002 Act).
24.	Mr Knafler, for the claimant, invited us to accept the submission which was rejected by the judge, namely that the effect of the 2002 legislation is to require Lambeth to provide accommodation for the claimant and her children until the Secretary of State decides (if he does) that the claimant and her two elder children cannot be permitted to remain, and issues removal directions with which she does not co-operate.  Mr Knafler also contended that a proper assessment made under the Children Act of the needs of the claimant’s children would have led to the conclusion that they should be accommodated in the United Kingdom, and it would then be conceded that it would be incompatible with the Convention rights of both the claimant and her children not to accommodate all four here.  Mr Knafler submitted that paragraph 3 of schedule 2 to the 2002 Act should be regarded as a long-stop for hard cases, which was not intended to be used to enable a local authority to make travel arrangements for those unlawfully in the United Kingdom.  In that context our attention was invited to paragraph 27 of the Guidance, but that paragraph refers to the Regulations, and the Regulations simply do not address the possibility of travel assistance for those unlawfully in the United Kingdom, nor could they do so having regard to the terms of the enabling legislation (see paragraph 8 of schedule 3 to the 2002 Act).  The fundamental weakness of Mr Knafler’s submission is, as it seems to me, that nowhere in the legislation is there any provision which prevents Lambeth from adopting the course it decided upon to avoid a breach of the Convention rights of the claimant and her children.  The fact that the particular course involved making travel arrangements, and that the 2002 legislation expressly provided for travel assistance to be provided for others in different circumstances is to my mind irrelevant.  
25.	Mr Knafler also took a more general point.  He submitted that if the local authority were to make travel arrangements for the claimant and her children that would undermine the rule of law which reserves to the Secretary of State the power to decide if those illegally here should be allowed to remain, and if not how and when they should be removed.  The claimant, Mr Knafler submitted, has an arguable claim for leave to remain (based only it seems on relatively long residence) and should not be required to abandon it by leaving the jurisdiction.  She should be provided with accommodation until it is decided, and central government should not be able to avoid that obligation by vesting the power to accommodate in local authorities and then requiring or permitting local authorities to restrict the use of that power, especially in a situation which involves consideration of the rights of a British citizen.  
26.	We have not in this case had the benefit of submissions from the Secretary of State, although we have satisfied ourselves that he is aware of these proceedings, but in support of his more general submission Mr Knafler invited our attention to a number of authorities, to most of which I have already referred.  He submitted that in JCWI this court stated that asylum-seekers waiting a final determination of their claims should not be required to leave, and in ex parte O that was extended to non asylum-seekers, a fact which in Kimani was overlooked.  
27.	In my judgment it is clear from an examination of the authorities they do not bear the weight Mr Knafler seeks to place upon them.  In JCWI the court was concerned with how to safeguard the rights conferred on the asylum-seekers by the Asylum and Immigration Appeals Act 1993 in the light of the Regulations which restricted entitlement to benefit, and Simon Brown LJ, as he then was, distinguished the position of asylum-seekers from that of non asylum-seeking immigrants who could return to their country of origin, and who suffered the same loss of benefits.  He described the position of asylum-seekers as unique (page 287 A).  In ex parte O the court did no more than reject the wide interpretation of section 21(1A) of the National Assistance Act 1948 contended for by the local authority and the Secretary of State.  It also rejected the submission that a person otherwise entitled to benefit should not receive it because of his illegal immigration status.  It is true, as Mr Knafler points out, that in that case Hale LJ, as she then was, contrasted the role of the local authority to provide for need with the role of the Secretary of State to deal with immigration status and its consequences, but it is also clear that under the most recent legislation that distinction is less marked.  
28.	That brings me to Kimani, a decision of this court with which Mr Knafler understandably has some difficulty, not least because the case was decided under the legislation with which we are concerned.  The claimant in that case was a Kenyan who came to the United Kingdom in 1998 with her young son and claimed asylum.  That application was refused and her appeal was dismissed.  She then married an Irish National and sought permission to reside in the United Kingdom as the spouse of an EEA national.  That was refused because in the opinion of the Secretary of State she had simply entered into a marriage of convenience.  She appealed against that decision, and separated from her husband.  When the 2002 legislation came into force the local authority, having regard to the terms of schedule 3 to the 2002 Act ceased to pay asylum support and the claimant challenged that decision.  At paragraph 24 the Master of the Rolls, giving the judgment of the court, said –
“The objective of Schedule 3 can readily be inferred from its content.  It is to discourage from coming to, remaining in and consuming the resources of the United Kingdom certain classes of person who can reasonably be expected to look to other countries for their livelihood.”
At paragraph 40 dealing with the submission that the claimant should be permitted to remain in this country to await the outcome of her appeal (a submission echoed by Mr Knafler in the present case) the Master of the Rolls said –
“Respect for family life does not require that the claimant should remain in this country while her appeal is considered.  The European Court of Human Rights has always respected the right of the state, subject to treaty obligations, to control the entry of the non-nationals into its territory; see, for instance, Abdulaziz v United Kingdom [1985] 7 EHRR 471, 497.  Strasbourg jurisprudence would certainly not require this country to permit a claimant, seeking to enter this country for family reasons, to be permitted to enter, or to remain here on public support, pending the resolution of her disputed claim.”
Then, at paragraph 49, the Master of the Rolls said –
“No authority has been placed before us which bears directly on the issue we have to resolve.  We must decide it as a matter of principle.  We do not consider that either Article 3 or Article 8 imposes a duty on the state to provide the claimant with support.  She has not been granted leave to enter or remain in this country.  She has been permitted to remain here to pursue an appeal in which she advances, inter alia, an Article 8 claim, which we consider to be clearly specious.  Even if it were not, no infringement of Article 8 would result from requiring her to return to her own country pending the determination of her appeal.  There is no impediment to her returning to her own country.  A state owes no duty under the Convention to provide support to foreign nationals who are permitted to enter their territory who are in a position freely to return home.  Most people who fall into this category are given leave to enter on condition that they do not have recourse to public funds.”
In the present case it is worth bearing in mind that the breach of Convention rights which the local authority could have envisaged when invoking its powers under section 2 of the 2000 Act is that which would arise in this country if the claimant and her children were deprived of accommodation, and in order to discharge its functions under the Children Act the local authority then had to take the children into care.
29.	It is perhaps surprising that the decision in Kimani was not referred to in any of the judgments in R (M) v Islington LBC and Secretary of State for the Home Department, where the claimant was an overstayer from Guyana who had married an Antiguan with indefinite leave to remain in the United Kingdom, and had a child by him who was a British citizen.  She then separated from her husband, and sought assistance from the local authority which assessed the needs of the child and concluded that her best interests would be served by going with her mother to Guyana.  The claimant challenged that decision, and contended that the local authority should use its powers under Regulation 3(3) of the Withholding Regulations pending the outcome of immigration proceedings.  At first instance the judge held that in the light of the Guidance Regulation 3(3) could only be used to provide accommodation for a short time, but that the assessment made under the Children Act was flawed because it failed to have regard to the child’s relationship with her father (In the present case it is accepted that the child Therondo has no such relationship).  In this court it was held by the majority that the power to accommodate granted by Regulation 3(3) is not restricted in time, and a declaration was made that the local authority had power to provide accommodation for the claimant pending her being in breach of removal directions.  Buxton LJ, in a dissenting judgment, expressed considerable concern about the rights of a child of a British citizen, but as he recognised at paragraph 24 –
“If .. family life can be reproduced in the country of removal, then it is difficult to see how the case could fall under Article 8 at all; because, as made clear in Mahmood at paragraph 55(3) Article 8 creates no right to enjoy family life in one country rather than another.”
In the present case it is important to note the local authority’s attitude to Therondo.  It is set out in paragraph 12 of Mr Rapley’s third witness statement, where he says –
“The council is not requiring Therondo to leave the United Kingdom, and would perform its obligations under the Children Act 1989 for as long as he would remain here.  I cannot accept that the council is automatically obliged to accommodate an entire family, most of whose members are Jamaican, simply because the youngest child of that family is British, especially when at the time of that child’s birth the claimant was already very well aware that her immigration status was precarious.”
30.	The first of the two remaining authorities to which I need refer is R (Ullah) v Special Adjudicator [2004] 3 WLR 23 in which the House of Lords considered the circumstances in which a contracting state would be at risk of incurring liability under the Convention if it were to remove a person to a country where he would be foreseeably at risk of ill treatment proscribed, for example, by Article 3.  It was recognised that other Articles of the Convention might be engaged, but at paragraph 50 Lord Steyn said –
“Where other Articles may become engaged a high threshold test would always have to be satisfied.  It would be necessary to establish at least a real risk of a flagrant violation of the very essence of the right before other Articles could become engaged.”
In R (Razgar) v Home Secretary [2004] 3 WLR 58, which was decided at the same time as Ullah, Lord Bingham said at paragraph 9 –
“Reliance may in principle be placed on Article 8 to resist an expulsion decision, even where the main emphasis is not upon the severance of family and social ties which the applicant has enjoyed in the expelling country but on the consequences for his mental health of removal to the receiving country.  The threshold of successful reliance is high, but if the facts are strong enough Article 8 may in principle be invoked.”
So, as it seems to me, the authorities do not support Mr Knafler’s more general point, and, as Mr Béar pointed out, Jamaica is not an unknown land.  It is a country to which people do return, sometimes willingly and sometimes because realistically they have no other choice.  That should not of itself be a cause for concern.  
Conclusion.
31.	In my judgment, for the reasons I have given when dealing with the submissions made by Mr Knafler, the submissions made by Mr Béar on behalf of Lambeth are correct, and I would therefore allow this appeal, set aside the judgment of the judge and dismiss the claim for relief.  It is to my mind important to recognise from the outset, and not to lose sight of, the fact that the claimant and her two elder children are illegally here, and have no right to be accommodated.  The claimant cannot create such a right by making an application for leave to remain, or by appealing against a decision which has gone against her.  On the other hand Lambeth, which has provided her with accommodation thus far, cannot act in such a way as to interfere with her Convention rights.  The offer it has made seems to me to safeguard those rights.  At present, in my judgment, it need do no more.
Lord Justice Chadwick : 
32.	I agree that the judge was wrong to reach the conclusion that he did.  I, too, would allow this appeal.
33.	The claimant, Mrs Grant, is in the United Kingdom in breach of the immigration laws (within the meaning of section 11 of the Nationality, Immigration and Asylum Act 2002) and is not an asylum-seeker. It is for that reason that she is a person to whom paragraph 1 of schedule 3 to the 2002 Act applies – see paragraph 7 of that schedule. That has two important consequences in the present context: (i) she is a person who (subject to paragraph 3 of schedule 3) is not eligible for support or assistance under any of the statutory provisions listed in paragraph 1(1) – that is to say, she is excluded from what may be described as the mainstream benefits system; and (ii) she is a person in relation to whom – and provided that the other requirements in paragraph 10 of the schedule are satisfied – the Secretary of State may make regulations providing for arrangements to be made for her accommodation.
34.	In the case of Mrs Grant, the requirements in paragraph 10 of schedule 3 to the 2002 Act are satisfied. As I have said, she is a person to whom paragraph 1 of the schedule applies by virtue of paragraph 7. She has not (or, at the least, had not at the relevant time) failed to cooperate with removal directions. We were told that – although a decision to refuse her outstanding application for leave to remain has been made by the Immigration and Nationality Directorate and has been communicated, informally to Lambeth London Borough Council (although not, it seems, to Mrs Grant herself) – no removal directions have been issued pursuant to that decision. And she is a person who has with her dependent children. The arrangements to be made for her accommodation, under regulations made for that purpose, may include arrangements for the accommodation of her dependent children – see paragraph 10(2)(a) of schedule 3 to the 2002 Act.
35.	The relevant regulation, for the purposes of paragraph 10 of schedule 3 to the 2002 Act, is found in the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 (SI 2002/3078). Paragraph (3) of Regulation 3 empowers a local authority to make arrangements for the accommodation of “a person unlawfully in the United Kingdom” who has not failed to co-operate with removal directions issued in respect of him. In that context a person unlawfully in the United Kingdom means a person to whom paragraph 1 of schedule 3 to the 2002 Act applies by virtue of paragraph 7 of that schedule. As I have said, Mrs Grant is such a person. But, as is clear from the regulation itself and from the provisions under which it was made, Regulation 3(3) confers a power; it does not impose a duty. The judge was right when he said, at paragraph 24 of his judgment, that:
“There is no doubt that Lambeth has a power, and not a duty, to accommodate the claimant and her children together until [removal directions were set and the claimant did not co-operate with them]: see M v Islington . . .”
36.	Nor is there is any doubt that, but for the need to give effect to the Convention rights of Mrs Grant and her children – in particular, their rights to respect for family life under article 8, the Council would choose not to exercise the power conferred by regulation 3(3) of the Withholding Regulations. The reason was explained by the Council’s officer, Mr Mark Rapley, in the witness statement (his third) which he made on 7 April 2004. He said this:
“3.	The Council has already recognised that it has a discretion to provide the Claimant and her family with accommodation under [the Withholding Regulations]. The Council is providing such accommodation pending the outcome of this litigation. One of the questions that I had to decide upon was whether the Council should agree to continue such accommodation pending the determination of the Claimant’s outstanding application for leave to remain in the United Kingdom. . . . 
4.	. . . I concluded that the Council should not be willing to accommodate the Claimant on this basis. My main reason for reaching that decision was that it would in my view have represented an inappropriate use of the Council’s scarce  resources. . . .”
After describing the budgetary constraints within which the Council’s Social Services Department had to meet the demands upon its resources, Mr Rapley went on:   
5.	“Against this background, there is a very strong imperative to spend money only on those cases that really call for social services help. It is a question of allocating scarce resources where they are most needed. This means concentrating our core expenditure principally upon disabled children; children at risk of abuse, children who are acting as carers, children who are looked after by the Council; children with mental health needs; adults with mental health needs; adults with special needs; and the elderly.
6	There is nothing about the Claimant’s situation that would normally call for support from a social services department. The only reason why she has a need for accommodation is that she has illegally overstayed her leave to remain in the United Kingdom, currently chooses to remain in the UK rather than returning to Jamaica, and by virtue of her status is excluded from state benefits. In my view the situation of the Council is not such that it can or should provide what is in effect an alternative benefits system for such individuals, in circumstances where Parliament has decided to exclude them from the mainstream benefits system.”
37.	The judge held, in effect, that it was not open to the Council to choose not to exercise the power to make arrangements for accommodation conferred by Regulation 3(3) of the Withholding Regulations. In a passage which immediately follows that to which I have already referred (at paragraph 24 of his judgment), he said this:
“However the Article 8 rights of the claimant and each of her children may, as Maurice Kay and Waller LJJ noted [in R(M) v Islington LBC and another [2004] EWCA Civ 235], have the practical consequence of requiring that power to be exercised so as to provide accommodation. Where, as here, the claimant lacks the means to repatriate herself and her family to Jamaica, and will, in any event, be prevented from doing so for a significant period by administrative delays and has no other means of support, the power must, in my view, be exercised in her favour to avoid a breach of her and her children’s Article 8 rights.”
38.	That reasoning led the judge to the conclusion - expressed at paragraph 32 of his judgment, read in conjunction with paragraph 17 (in which he had set out the rival contentions) - that the Council was correct to identify “as the outer limit of any obligation to provide accommodation for the claimant and her children” the period that it would take her voluntarily and with lawful financial assistance, if provided, to depart with the children to Jamaica. That conclusion is reflected in paragraph 1(a) of the order which he made on 17 June 2004. The Council has no quarrel with that.  
39.	The real issue between the parties is whether the Council has power to provide the financial assistance which would enable Mrs Grant to return to Jamaica with her children. There is no dispute that power to provide financial assistance for that purpose is conferred by section 2 of the Local Government Act 2000; nor that, but for the restriction imposed by paragraph 1(1) of schedule 3 to the 2002 Act, that power would be exercisable in the circumstances of the present case. Nor is there any doubt that the Council would choose to exercise that power, if it can lawfully do so, in order to bring to an end the period during which it is obliged to provide accommodation for Mrs Grant and her children. But it is said on behalf of Mrs Grant that, although she is in the United Kingdom unlawfully, the Council cannot provide her with financial assistance to return to Jamaica. It must continue to provide her with accommodation until the immigration authorities take steps to remove her.
40.	Mr Rapley explained the Council’s position in his witness statement of 7 April 2004. After setting out the reasons why the Council took the view that a return to Jamaica would not, of itself, involve any breach of Mrs Grant’s Convention rights or those of her children, he said this (at paragraph 16):
“Finally, if it would be proper to expect the Claimant to return to Jamaica, in preference to being supported by the Council, if she had resources of her own with which to pay for tickets, it is in my view entirely reasonable for the Council to meet such costs if the Claimant is unable to do so. The cost to the Council, and the consequent diversion of resources, will be substantially less than that involved in continuing to accommodate and support the Claimant. I therefore believe that it will promote the social well-being of the Council’s area, and in particular the social well-being of those local residents who have a need for social services provided by the Council.”
The test - whether the exercise of the power would promote the social well-being of the Council’s area - is taken from section 2(1)(b) of the Local Government Act 2000; and the identification of a class of persons resident in the Council’s area who would benefit from the exercise of the power reflects the requirement in section 2(2)(b) of that Act. 
41.	The judge held that financial assistance could not be provided to Mrs Grant under section 2 of the Local Government Act 2000. His reasoning is found in paragraphs 33 to 44 of his judgment. It may, I think, fairly be summarised as follows: (i) but for section 3 of the Local Government Act 2000, the power conferred by section 2 of that Act would extend to the funding of travel arrangements for Mrs Grant and her children; (ii) section 3 of the Local Government Act limited the power conferred by section 2 - a local authority to do anything under section 2 “which they are unable to do by virtue of any provision, restriction or limitation on their powers which is contained in any enactment (whenever passed or made)”; (iii) the statutory scheme set out in schedule 3 to the Nationality, Immigration and Asylum Act 2002, read with section 54 of that Act and the Withholding Regulations, contains a restriction or limitation on local authority powers; (iv) it is not open to the Council to rely on paragraph 3 of schedule 3 to the 2002 Act – the local authority has power to fund accommodation until the immigration authorities implement removal directions, so that there is no need to exercise powers under the Local Government Act for the purpose of avoiding a breach of Convention rights. 
42.	The judge relied on four matters to support his conclusion that the statutory scheme imposed by the 2002 Act contained a restriction or limitation on the exercise of Lambeth’s power, under section 2 of the Local Government Act 2000, to fund travel arrangements for persons who are in the United Kingdom and are not asylum seekers. Those included the guidance issued under paragraph 11(e) of schedule 3 to the 2000 Act which, as he thought. “emphasises the restriction or limitation present in the statutory scheme”.  
43.	For my part, I do not find assistance in the guidance – which, at paragraph 27, does no more than emphasise that the limited powers to make travel arrangements, conferred by the Withholding Regulations, do not extend to arrangements in respect of persons other than those brought within paragraph 1 of schedule 3 to the 2002 Act by paragraphs 4 and 5 of that schedule. In particular, the power to make travel arrangements conferred by the Withholding Regulations (at Regulation 3(1)) does not extend to persons (such as Mrs Grant in the present case) who are brought within paragraph 1 of schedule 3 by paragraph 7 of that schedule. But that is put beyond doubt by Regulation 3(1) itself and by paragraph 8 of schedule 3, under which, alone, Regulation 3(1) is made. The guidance adds nothing to the schedule and the regulations in this respect.
44.	Nevertheless, leaving the guidance out of account, the judge was plainly right to conclude that the statutory scheme introduced by the 2002 Act contained a restriction or limitation on the exercise of Lambeth’s power, under section 2 of the Local Government Act 2000, to fund travel arrangements for persons who are in the United Kingdom and are not asylum seekers. The restriction is imposed by paragraph 1 of schedule 3 to the 2002 Act (read with section 54). The Withholding Regulations do not, of themselves, impose any further restriction. All that can be said, in my view, is that the Withholding Regulations do not confer power to make travel arrangements in respect of persons in the position of Mrs Grant and her children. But they could not do so, having regard to the limited power to make regulations providing for travel arrangements conferred by paragraph 8 of schedule 3 to the 2002 Act.
45.	Mrs Grant is a person to whom paragraph 1 of schedule 3 to the Nationality, Immigration and Asylum Act 2002 applies; and section 2 of the Local Government Act 2000 is amongst those statutory provisions listed under paragraph 1(1) of schedule 3 to the 2002 Act. Unless the present case comes within paragraph 3 of schedule 3 to the 2002 Act, the power to provide financial assistance so as to enable her to return to Jamaica with her children, conferred by section 2 of the 2000 Act, is not exercisable. 
46.	Paragraph 3 of schedule 3 to the 2002 Act is in these terms, so far as material:
“Paragraph 1 does not prevent the exercise of a power [conferred by one of the provisions listed in paragraph 1(1)] . . . if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of – (a) a person’s Convention rights, . . . ”
47.	The question is not whether the statutory scheme imposed by the 2002 Act contains a restriction on the exercise of Lambeth’s power, under section 2 of the Local Government Act 2000, to fund travel arrangements for persons who are in the United Kingdom and are not asylum seekers. It is plain that it does. Nor is the question whether the Withholding Regulations themselves confer power to make travel arrangements in respect of persons in the position of Mrs Grant and her children. It is plain that they do not; and could not do so. The question is whether, notwithstanding the restriction imposed by the statutory scheme, the power conferred by section 2 of the Local Government Act 2000 is exercisable, in this case, by reason of the saving provision in paragraph 3 of schedule 3 to the 2002 Act. 
48.	That question was addressed by the judge in paragraph 44 of his judgment. He said this:
“Lest it be argued that it is necessary, to avoid a breach of Convention rights, that the power to fund travel arrangements must exist the answer is to be found in regulation 3(3) as interpreted by the majority of the Court of Appeal [in R (M) v Islington LBC]. The local authority has a power to fund accommodation until the Secretary of State sets removal directions and a claimant does not co-operate with them. While accommodation is provided, there is no need for the purchase of tickets to avoid a breach of Convention rights.”
49.	The flaw in the judge’s reasoning, as it seems to me, is that he failed to keep in mind that, although (as he had held) the Council had power to fund accommodation until Mrs Grant had failed to cooperate with removal directions issued by the immigration authorities, there was no duty to exercise that power, save in so far as it was necessary to do so in order to avoid a breach of Mrs Grant’s Convention rights and those of her children. That was the point which the judge had addressed at paragraph 24 of his judgment. The judge had held, in effect, that – because the Council could fund accommodation under Regulation 3(3) of the Withholding Regulations – it was obliged to do so. But the only basis upon which he could reach that conclusion was that (as he thought) it was necessary for the Council to use its powers so as to avoid a breach of Convention rights.  The judge does not seem to have appreciated that, although it was necessary for the Council to exercise its powers so as avoid a breach of Convention rights, it was no more necessary for it to use the power conferred by regulation 3(3) of the Withholding Regulations for that purpose than it was necessary to use any other statutory power conferred by which it could achieve the same purpose. 
50.	In my view, once the Council had reached the conclusion – as, plainly it did in the present case – that it would not use its power to accommodate under arrangements made pursuant to Regulation 3(3) of the Withholding Regulations save and to the extent that it was necessary to do so in order to avoid a breach of Convention rights, it was entitled – indeed, I would say bound - to consider whether there was some other power by the exercise of which a breach of Mrs Grant’s Convention rights could be avoided. The effect of paragraph 3 of schedule 3 to the 2002 Act is that the power conferred by section 2 of the Local Government Act 2000 can be used to the extent necessary to avoid a breach of Convention rights. To my mind there is no reason why, in considering how best to avoid a breach of the Convention rights of Mrs Grant and her children in the circumstances of this case, the Council should not decide to use the powers conferred by section 2 of the 2000 Act and the power conferred by Regulation 3(3) of the Withholding Regulations, in conjunction with each other, to the extent that it considers it necessary to do so in order to achieve that object. 
51.	That is what the Council seeks to do in this case. It takes the view that, in order to avoid a breach of Convention rights, it is necessary to use the power to accommodate only for so long as Mrs Grant and her family are unable (through lack of resources) to return to Jamaica and to use the power to fund travel arrangements so as to enable her to do so. I can see no basis upon which the court should intervene.  
Sir Christopher Staughton.
52.	I agree.