by Allan Norman
My colleague Yasmeen Qazi - a social worker and solicitor like myself - has recently been able to positively clarify rights to social services when a potential service user's presence here is both settled and stable on the one hand, but illegal on the other.
The case is R (on the application of C) v Birmingham City Council [2008] All ER (D) 171 (Nov). The brief facts are that the issue was whether the family could access support from the statutory social services authority in the form of accommodation and subsistence support under the Children Act 1989. The family comprised a mother who was an overstayer and therefore illegally present, an eldest child in respect of whom an application had been made for settlement under the "seven year concession", and three further British children born between 2004 and 2006.
The court's ruling held that where the immigration authorities had a positive policy and practice towards children based solely on their long residence here, the social services authority could not simply ignore that policy, nor the reasons underpinning it, in determining whether it owed a duty to the family, or whether the family's Article 8 rights to respect for family life were engaged.
The elephant in the room, it seems to me, is the citizenship of the three younger children. I have commented before - see Destitution at Mornington Crescent - on the debate about illegally present parents with British children. There has been some unhelpful caselaw, and I have also commented on the curious doublethink that allows British children to be held in immigration detention - see Every Child - without any Reservation - Matters.
Historically, Article 8 rights gave way to immigration control. But the courts have been moving away from this position. Other cases in the last few months that have eroded the priority given to immigration control are:
- Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 (25 June 2008), in which the court was scathing about situations where bureaucratic niceties were the only barrier to keeping a family together; and
- EM (Lebanon) v Secretary of State For The Home Department [2008] UKHL 64 (22 October 2008), where the court held that removal to the country of origin would involve a flagrant denial of the right to respect for family life.
This most recent case continues the trend of emphasising Article 8 rights notwithstanding immigration control issues. The practical issue for social workers is to be aware of the strength of the underlying immigration application, and not to dismiss too readily the human right to family life.
Allan Norman is Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.
I will like to commend all the contributors to this blog as I have found the information available very helpful.
I happen to be quite confused as to where the decision in the R(on the application of C)v Birmingham CC will lead to.
Are we now to assume that Local Authorities will have to wear the thinking cap of an immigration officer when considering its own matters?
I guess my question here is, will a social worker have to conclude that the family concerned will be eligible for social services support once there is a genuine pending 7 year rule concession application as a result of the so called presumption that the BIA will not normally enforce removal where where a child was born or has lived in the UK for 7 year or more?
Regards,
IN