Kent County Council Children’s Services advised and represented by Invicta Law has won an important asylum case in the High Court

The claimant had entered the UK as an unaccompanied asylum-seeking child and for the last few years, had been looked after by Kent County Council. When he turned 18 he continued to be looked after as a former relevant child until his request for asylum was refused.

Kent County Council then carried out a Human Rights Act assessment and concluded that it was lawful to withdraw the support it had been providing as he was now a failed asylum seeker and no longer entitled to it.

The claimant lodged further submissions for a fresh claim with the Home Office (SSHD), claiming that these submissions once again made him an asylum seeker, as he had a current asylum application under consideration and was therefore once again entitled to support.

Kent rejected this definition of asylum seeker for the purposes of providing support and concluded that the further submissions were ‘manifestly unfounded’. The claimant filed a claim in the High Court, accepting that his further submissions were ‘manifestly unfounded’ but submitted that, nonetheless, he was an asylum seeker.

What Does This Mean?

The significance for Kent Children’s Services of accepting this definition would have had a significant impact on Kent’s duties to the 1200 asylum seeking and former relevant children in the county, as the lodging of further submissions could be done repeatedly to trigger entitlement to support, until the young person turned 25.

The claimants Counsel argued that the UK had not adopted the definition of asylum seeker and asylum application as was intended by the European Council Directive. Kent (Senior Counsel Stephen Knafler QC instructed by Invicta Law) argued that the claimant is undoubtedly an “asylum seeker” as defined in the Council Directive, but that was beside the point for 2 reasons:

  1. The Directive contains its own definition of “asylum seeker”, whereas Schedule 3 to the Nationality Immigration and Asylum Act 2002 contains its own definition of “asylum seeker” for the purpose of defining eligibility for, among other things, support under the CA 1989.
  2. The claimant is not bringing any claim against the defendant under the Directive, as a refusal by the defendant to provide the claimant with accommodation and support does not breach any requirement imposed on the defendant by the Directive, given that accommodation and support was available under section 4 of the Immigration and Asylum Act 1999.

The Judge dismissed the judicial review and the claimant’s application for permission to appeal to the Court of Appeal and reinforced the interpretation of the meaning of the term asylum seeker as being that set out in the case of: R (Nigatu) v SSHD [2004] EWHC 1806, that the statutory support scheme draws a distinction between (i) “asylum seekers”; and (ii) those who were but are no longer are asylum-seekers, albeit that they may have sent the SSHD submissions that they wish him to accept as amounting to a new asylum claim and that this is not in breach of European Law.

The claimant may seek to obtain permission from the Court of Appeal to lodge an appeal and has 28 days from the date of the judgment to do so.

In terms of the future asylum cases, a loss could have meant that no matter how many times the SSHD lawfully rejected an asylum claim, Children’s Services would be required to divert scarce resources towards young adults who were intended to become the responsibility of the SSHD. This win is a step in the right direction in ensuring that these resources are going to those who need them the most.

For more information on our Asylum services, contact: AsylumTeam@invicta.law

For more information on our Child Protection services, contact: ChildProtection@invicta.law

Written by Carmel Maher, Solicitor, Invicta Law

Edited by Olivia Cresswell

 

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