Blackwood, R (on the application of) v Secretary of State for the Home Department

J U D G M E N T

1. MR JUSTICE COLLINS: This is an application by Tawana Blackwood, a 22-year old Jamaican who has lived in this country since she was ten, for judicial review of a decision of the Secretary of State through the National Asylum Support Service, that she should be subject to dispersal in order to obtain the support which the law provides should be given to her.

2. Miss Rahman, on behalf of the Secretary of State, has submitted that that does not necessarily mean that she will be removed from London, but that is totally unrealistic in the light of the material before me and also in the light of the Policy Bulletin (No. 31) to which I have been referred. This makes it plain that one of the purposes behind the dispersal policy is to relieve the pressure on London and the South East, where a supply of accommodation is not available, and place asylum seekers (as they are called) in areas where there is accommodation available. That stems from the provisions of section 97(1)(b) of the Immigration and Asylum Act 1999 which provides:

"When exercising his power under section 95 to provide accommodation, the Secretary of State must have regard to...

(b) the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation."

That essentially means that accommodation will be provided under the dispersal policy outside London and the South East.

3. This is, on the facts, quite clearly an exceptional case. This claimant is not a person who would be regarded by the general public, I suspect, as an asylum seeker. What happened was that she was brought to this country at the age of 10, in 1991, having spent a year in Holland. She was brought in by an aunt. Unfortunately, it seems, no one now knows precisely how it came about that she was able to remain in this country. She joined her mother and initially lived with her in London. She attended school in south London. Fairly soon after she began to live with her mother things went wrong. It seems that her mother was violent towards her. She suffered from a degree of lack of care, which in due course meant that she was placed in foster care in South East London; that happened in 1992. She moved back to live with her mother a year later, but that did not work out. In 1994 she moved to live with a friend who apparently was able to look after her. She then attended school until 1996. Thereafter, she sought work. She was granted a national insurance number and once she was 18 was put on the electoral register, because the authorities apparently assumed that she was lawfully in this country and was entitled to be registered as a voter. She had some family left in Jamaica. Sadly, in May 1998, her brother was murdered in Jamaica. It seems that her father had disappeared off the scene some time before.

4. In November 1998 she was given a council flat by Southwark Council. She went to and completed a GNVQ business course. She had hopes at that stage that she would eventually obtain employment and train to be an air hostess. However, for a short time she worked in a shoe shop, but was not paid for some reason and, as a result, went to the benefits agency. In January 2001 she was offered a job by the benefits agency. She was asked to produce the relevant documentation. When checks were made, a question arose as to her true immigration status. It was then appreciated that it might be that she was not here lawfully, in the sense that she had never been given permission to remain in the country.

5. That, of course, was not in any way her fault. She had been brought in at the age of 10, when she could not be expected to know anything about the details of the immigration requirements. She had remained in this country and had assumed (and it had been assumed not only by her but by the local authority, and it seems by virtually everyone else) that she was here lawfully and that she was making her life here.

6. In spring 2001 she fell pregnant. Unfortunately, the father has not maintained any contact with her and has not been prepared to have any financial responsibility for the child who was born on 7th December 2001.

7. In November 2001 she applied for indefinite leave to remain in the United Kingdom, she having taken advice from solicitors about that matter. The solicitors set out the history, as I have described, and submitted the relevant documentation. At the end of their letter they stated:

"We would be grateful if you would process and grant this application as a matter of urgency. If you do not grant this application we put you on notice that we intend to rely on Article 3 of the Human Rights Act in that Miss Blackwood's return to Jamaica will amount to inhumane or degrading treatment or punishment. We will also rely on Article 8 in that her return would also breach her private and family life ."

It is that that makes her an asylum seeker within the meaning of the 1999 Act and that is why I have said that she would not be perhaps regarded by the general public as someone who they would think of as an asylum seeker. She is entitled to the support of NASS because she has made a claim that to return her would breach her rights under the European Convention on Human Rights.

8. It is not for me to consider whether there is any merit in the claim under Article 3 of the Convention. Certainly it would seem somewhat unlikely to succeed. But there is clearly a potential claim under Article 8 in relation to removal which may depend to an extent upon what might face her if she were to return to Jamaica and what effect that might or would have upon her well-being.

9. Be that as it may, there was an initial request to NASS to pay subsistence and to pay the rent on the council flat that was provided to her in November 1998. It seems that she had been paying the rent perfectly properly until she was unable to work, because since her status was put in doubt she has been unable to work. Whether she is forbidden from working is not entirely clear, although normally that would be the position with an asylum seeker. But she certainly has not been able to obtain any employment. Until her application is decided, she is in a position where she is not able to obtain any support other than through NASS. In fact NASS decided to commence payments in May 2002 but refused to pay rent. Initially, they made a mistake because they put it on the basis that they did not pay rent to private landlords or for private accommodation. It was pointed out that this was not private accommodation but was council accommodation.

10. The first letter which was sent by NASS to the claimant's solicitors, stating that they were not prepared to pay her rent but that she would have to be subject to the dispersal policy, is dated 24th June 2002. The information before NASS included the representations made by her solicitors and the original application form in which she applied for indefinite leave to remain. In that she stated under "Other Information":

"I have lived in London since I was 10 years old. I am now 21 years old. My mother lives in London and I am trying to build a relationship with her after many years estrangement. I have friends and social support in London. I have a baby born one month premature on 7.12.01.

I have a secure tenancy from Southwark council. I have lived here for 3 years. I do not want to lose the tenancy which is valuable to me."

There is then reference to a letter to the Refugee Council. That was a letter sent by her solicitors dated 27th December 2001. So it was, as I say, that the letter of 24th June was sent. That stated that all the factors of the application had been carefully considered and all issues raised in the representations had been noted, particularly the request that she be supported by NASS in her current accommodation. It went on:

"The Secretary of State however, for the reasons stated below, is of the view that dispersal to a suitable area would be appropriate and that there are insufficient compelling or compassionate reasons why Miss Blackwood cannot be allocated dispersal accommodation."

One paragraph further on this is said:

"Moreover Miss Blackwood appears to enjoy no family support in London. She would appear to have never had a relationship with her mother, who indeed failed to provide her with any kind of support when she was pregnant and most in need, and by your own account is scarcely able to care for herself, let alone her daughter. Although your client may have attempted to make contact with her mother recently, unless you are able to provide evidence to the contrary, there is nothing to suggest that the situation is likely to change substantially in the future. Her baby is now 6 months old and would of course be allocated accommodation with her. The fact that she has 3 friends in the London area is not of sufficient weight to affect the Secretary of State's decision to disperse her. The Secretary of State considers that his decision would not therefore constitute a breach of Article 8 of the ECHR."

One remarkable thing about that paragraph is the total failure on the face of it to deal properly with the point that she had lived in that particular area of London all her life, that she did indeed have no proper relationship with her mother but that she was hoping to achieve one and that the friends upon whom she relied were essential to her well-being. To say the fact that she has 3 friends in the London area is not of sufficient weight totally fails, on the face of it, to grapple with the points that were being made on her behalf. So it was that the solicitors the following day wrote a letter asking for the matter to be reconsidered. They stated as follows:

"In the fourth paragraph of your letter you say '...Miss Blackwood appears to enjoy no family support in London...' This is factually inaccurate. Our client has resumed her relationship with her mother since the birth of her child. It is a tentative and fragile relationship but it is a relationship worth nurturing. Our client will be unable to do this if she is dispersed to another part of the country. She will not have the resources to maintain contact. Our client also as a cousin Claudette who has provided considerable support to her. Details are set out in our previous correspondence to you.

We would remind you that our client has had a very difficult upbringing. She is extremely shy and does not make new friends easily. She is a very young women with a small baby and requires social and emotional support. She currently receives this from her two friends in London and a [prayer] group that she attends every Friday. If she is dispersed to another part of the country, our client will not be able to replicate these support networks very easily. This will leave a very young woman and a small baby in very difficult social circumstances for a number of years. Given that our client has already established links and accommodation in London, we cannot see the purpose of dispersing her at this point. To do so would surely have a detrimental effect upon her and her child's well being.

Our client does have a family life worth preserving for the reasons stated above. You are wrong to say that she will not lose anything by leaving London because she does not have any social contacts here."

That elicited a reply on 28th June, and what is said about that aspect is:

"We understand that Miss Blackwood has benefited from the support of a few friends in the London area and that she may recently have renewed some tentative contact with her mother, with whom she had not been in contact for some years. However the Secretary of State does not consider this to be a compelling or compassionate reason of sufficient weight to justify a departure from his general policy of dispersal."

11. That is perhaps a somewhat surprising decision: it is certainly one which I find difficult to understand. Nonetheless, the submission is that I cannot interfere unless it is an unlawful decision, and it will only be an unlawful decision if it is perverse or, as now must be the test, disproportionate within the meaning of the House of Lords' decision in Daley.

12. My attention has been drawn to the Policy Bulletin which recognises that discretion must be exercised where compelling or exceptional circumstances exist. Paragraph 2.6 states:

"Each application should be examined on its own merits. Careful consideration must be given to the individual circumstances of each case and when deciding whether it is reasonable to allocate dispersed accommodation particular attention should be given to the following:

. Medical treatment

. Special needs

. Family ties

. Education

. Ethnic group

. Religion Employment

. Legal advice

. Language."

Then paragraph 2.8:

"If an applicant states on their application form that they want to stay in a particular area and it is decided to allocate accommodation elsewhere, caseworkers should give written reasons for their decision."

Then paragraph 5 of the Policy Bulletin, under the heading "Family Ties" refers to Article 8 and states that regard must be had to Article 8 when deciding cases where requests are being made to be accommodated or to remain near family or friends, and that that must be carefully taken into account. It states that caseworkers should be alert to exceptional circumstances of individual cases which might make it appropriate to depart from these general guidelines.

13. The submission is made that those guidelines have been properly followed in the circumstances of this case. Harsh though it may seem, there is no error of law in the decision that this claimant should be the subject of dispersal. It must be remembered that Article 8 is not limited to family life; it extends to respect for private life and that includes the physical and psychological integrity of the individual. Thus, regard has to be had to the likely effect upon the claimant and, in a case such as this, her child, because the child's rights are also rights which have to be considered were the dispersal policy to be applied.

14. One well understands the reason behind the dispersal policy and nothing that I say is intended to criticise the policy as such; indeed it is required by the primary legislation. But regard must be had to the individual circumstances of a particular person. This is, as I said at the outset, quite plainly an exceptional case. It is most unusual because here is a claimant who has herself done nothing wrong, who has been in this country since she was ten, has set down roots in a particular part of this country, has made friends in that part, has relied upon those friends for support because, sadly, her relationship with her mother has broken down, is trying at the relevant time to re-establish, insofar as possible, the relationship with her mother, who has to look after a young child, who was working, hoped to work, and saw no reason why she should not continue to work, who had been provided with a flat and was able to pay and was paying the rent as it fell due and was only disabled from paying it because of the question mark about her status, who has been waiting an unconscionably long time for the Home Office to reach a decision upon her application to be allowed to remain here. All those amount, as it seems to me, to exceptional circumstances. I cannot see how any one could rationally decide that the circumstances were not exceptional. This is a rare sort of asylum seeker case. It is exceedingly unusual, I will not say unique because that is dangerous. It must be exceedingly unusual for this sort of situation to exist. To brush it aside by saying the fact that she has 3 friends in London and the fact that she has no proper relationship with her mother means that the policy should be applied, seems to me to fail to have regard to the reality of the situation. Thus, as it seems to me, on a general common law approach to these matters, this decision is one which cannot stand.

15. But it goes further than that, because there is a very strong case that Article 8 is breached in the circumstances. True it is that at the time the Secretary of State made his initial decision through NASS there was no direct medical evidence of the effect that dispersal was likely to have upon this claimant. However, it would not, I would have thought, have required much imagination to have appreciated that it was likely to have a substantially adverse effect upon her having regard to her background, the history and the circumstances of being required to bring up a baby with no family support but with the support of close friends who were available to her in the area.

16. The absence of any direct evidence of the effect has since been remedied by the provision in December of last year of a psychology report from Mr McNulty. That, putting it broadly and briefly, indicates that it is the opinion of Mr McNulty that to disperse this claimant would indeed have a damaging effect upon her mental state, and that she would be likely to suffer significantly and there would be a worsening of her levels of depression from which, unsurprisingly, she was in any event suffering to some extent. There would, therefore, be an increase in her dependency on social and mental health care support services if she were dispersed. Furthermore, there would likely to be a damaging effect upon the child because of the effect upon her. Again, that is a matter which common sense indicates is likely to be the position.

17. The Secretary of State has considered that fresh material, and I have before me a statement by Mr Brows of NASS, who is a project manager. He deals with that in paragraph 6 where he says:

"Mr McNulty concludes in his assessment of the Claimant's account that it is likely that the Claimant's mental state would suffer if she was dispersed away from her support group within her immediate neighbourhood and that she would have greater dependency on social and mental health care support services. However, the Claimant does not view her condition to be such that she is in need of, or has sought, any such professional services. Further, NASS dispersal accommodation is procured in areas where voluntary and community structures are in place or can be developed and the Claimant would be able to access in a dispersal area such support as was necessary."

18. The second sentence seems to me totally to miss the point. What Mr McNulty was saying was that to remove her from the access that she now has to her friends, and to the support that she was receiving from them, and indeed to remove her from the area in which she has grown up, would be likely to have an adverse effect upon her mental state. She is not at present in need of, nor has she sought, professional services. The point is that if dispersed she would need such support and such services. I find it surprising that the attitude appears to be that if you are made ill provided there is a doctor available it does not matter. That seems to be what underlies what is set out in Mr Brows' statement.

19. The reality is, of course, that such an adverse effect upon an individual does engage Article 8 because it does directly affect their psychological well being. That is a matter which was touched on by Lightman J in the case of R(Hetoja) v Secretary of State[2002] EWHC 2146 (Admin) (unreported dated 24th October 2002). In that, in paragraph 28, the learned judge points out that Article 8 enjoins, amongst other things, respect for private and family life and home, and this includes physical and psychological integrity. In assessing the claim against the relevant facts he makes the point that there was no evidence that the proposed arrangements in that case would compromise the claimant's or anyone else's physical or psychological integrity. That is of course not the position in the circumstances of this case. Accordingly, the receipt of the psychological report should have made the Secretary of State recognise that this was a case where to disperse would be likely to breach Article 8. But, as I have said, the decision, even without that, was one which could not stand for the reasons that have I indicated.

20. That does not mean of course that NASS is required to pay the rent on the flat. It may be that as a matter of reality, once it is recognised that the claimant cannot properly be dispersed, that is the only sensible course. Indeed, the most economical approach would probably be to enable her, certainly for the time being, to remain in the flat provided the circuit judge or Southwark Council who deals with the possession action can be persuaded that the payment of the current rent with perhaps a little bit of the arrears would be the appropriate way of dealing with the matter until the claimant's status is established. If of course she is refused, it may be that this could last for some time because, I do not doubt, that she would appeal and, of course, she remains eligible for support until any appeal is finally disposed of; that means an appeal to the Adjudicator and then, if that fails, possibly to the Tribunal. However, it is said that there is a very strong case that the Secretary of State should grant the application that she be permitted to remain. On the face of it that is undoubtedly so. But I do not know the full circumstances and I cannot prejudge that matter.

21. Mr Wise sought to persuade me that I should allow an amendment to enable him to seek an order that the decision be reached within 14 days, or certainly within a very short time. I refused that application because, as Miss Rahman very properly indicated, and indeed it is obvious, the Secretary of State would want to submit evidence about it if that application were to be made. In any event, although it has taken an unconscionably long time, so unfortunately do many such applications, because of the pressure on the Home Office.

22. However, it is obvious that this application ought to be dealt with as soon as possible. I am pleased to note that in November the Secretary of State did indicate that it would be dealt with shortly. 'Shortly' is of course a vague word: two months have now passed since it was said it would be dealt with shortly. It is a little difficult to see how any substantial further time can be justified because that clearly would not fall within any sensible definition of the word "shortly". However, as I have said, I am not in a position to make any specific direct order in the context of these proceedings and I do not do so.

23. Accordingly, the decisions of NASS will be quashed. They will be directed to reconsider whether this is a proper case for the dispersal policy to apply in the light of the judgment that I have given. I would, I am bound to say, be surprised if they felt able to justify adherence to that approach in this case, but provided they apply the right tests, the decision is of course for NASS and not for me.

This application therefore succeeds.

24. MR WISE: I am much obliged, my Lord. Two matters: costs and detailed assessment of my client's public funding certificate.

25. MR JUSTICE COLLINS: I cannot do the detailed assessment.

26. MR WISE: Not summary assessment, for detailed assessment.

27. MR JUSTICE COLLINS: For it, but you want costs. Miss Rahman, you cannot resist that?

28. MISS RAHMAN: My Lord, I cannot resist that.

29. MR JUSTICE COLLINS: Yes, with costs. The usual order for detailed assessment.

30. MR WISE: I am much obliged, my Lord.

31. MR JUSTICE COLLINS: Presumably, a form has been lodged.

32. MISS RAHMAN: My Lord, may I make a quick application?

33. MR JUSTICE COLLINS: You want leave to appeal, is that what you want?

34. MISS RAHMAN: Yes, my Lord.

35. MR JUSTICE COLLINS: Do you want to tell me why?

36. MISS RAHMAN: My Lord, you have concluded this is a decision which no reasonable decision-maker could make, the basis of appeal would be that that was not the appropriate decision.

37. MR JUSTICE COLLINS: I am very surprised to hear that application. I would have thought that the Home Office would have appreciated that this is a one-off case, there is no precedent created by it and that a little bit of compassion might at this stage creep into the decision making process. No, leave to appeal is refused.

38. MISS RAHMAN: My Lord, in conjunction with that, clearly you have expressed a view which the Home Office will want to look at and I wonder if I could ask you to order an expedited transcript?

39. MR JUSTICE COLLINS: Yes, expedited.