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The Immigration Act 2014 and the law of unintended consequences

The Immigration Act 2014 and the law of unintended consequences

Legislation meant to make life tougher for immigrant families accessing services may instead have brought some small relief. R (U and U) v Milton Keynes Council [2017] EWHC 3050 (Admin) was an application to judicially review Milton Keynes’ decision not to accommodate two Nigerian children, aged seven and eight. under section 17 Children Act 1989 because the local authority believed that their mother had funds to rent in the private sector.

The application succeeded, not because the council had arrived at its assessment of the mother’s finances unfairly, but because it failed to take account of sections 20 and 21 Immigration Act 2014. Those sections prevent those without immigration status becoming party to a residential tenancy agreement. Even if the mother had funds, she still couldn’t put a roof over her children’s heads, so the local authority had a duty under section 17 to do so.

The usual suspects

The claimant’s two main grounds were that the council had not fulfilled its ongoing duty to investigate when new information was provided, with the Immigration Act 2014 argument apparently as a back-up.

Milton Keynes took the timeworn local authority route of attacking the credibility of the mother’s account of her life in the UK, arguing that she must have had sources of support in order to survive so long in the UK, and that she could and should rely on these in the future.

It is unfortunate for her that she had not produced much solid evidence to refute this.

Without access to the correspondence and other file notes one shouldn’t make assumptions about the mother’s motives, but responding “no comment” in an interview with the local authority to questions about her finances harmed her credibility badly.

The defendant argued successfully that her perceived unreliability in interviews for initial assessment by children’s services meant that new information that her solicitor tried to introduce later did not need to be investigated, effectively cancelling the duty make enquiries.

Clients and their children will be interviewed without representation. This may be aggressive and carried out by immigration officers not social workers. However clients should be prepared to answer questions openly. This case demonstrates that unpromising circumstances can end in an unexpected positive result.

A welcome break

To the claimant’s second ground the council put up the argument that the claimant could use her funds to secure either a hotel room or a caravan, as these would not be “residential” tenancies under the terms of the act. However the court rejected this on the ground that any arrangement capable of accommodating the children such that they were no longer in need would be by definition residential.

Clients have reported local authorities encouraging them to look for holiday lets or other B&B accommodation, perhaps anticipating that sections 20 and 21 would have this effect. However it seems that these temporary arrangements will still be caught:

the Defendant’s decision cannot be supported on the basis that BU could have obtained hotel accommodation for a short period without the agreement falling within the provisions of the Act. Assuming that she could have done so, a decision that the family could avoid destitution by short term occupation of hotel accommodation and so would have move from one hotel to another in a series of short-term stays, would raise questions about the suitability of such an arrangement for the children and therefore whether it could properly be relied on as a way of avoiding them becoming children in need.

This means that one route to discharging a duty to accommodate immigrant families – that of showing that they possess funds to rent in the private sector – has for now anyway been closed.

There is at present a political conversation around the unforeseen consequences of withdrawing funding from one service when a related service picks up the slack. The Immigration Act 2014 seems to be a more acute form of governmental self-harm. We were told that it would help create a “hostile environment” for immigrants, so that they will think twice about coming here and using our services. Instead it has ensured that more of the public purse will be spent housing them.

And to think many practitioners were against it.

John Murphy is a trainee solicitor with a London firm specialising in housing and community care law

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