OA, R (on the application of) v London Borough of Camden & Anor

Factual and Procedural Background

This opinion concerns an oral application for permission to bring a judicial review claim by a four-month-old baby, anonymised as "OA," brought by his mother and litigation friend, "AA." OA was born at the Royal Free Hospital in Camden, and AA is a Nigerian national who entered the UK on visitor visas, which have since expired. AA has made two unsuccessful applications for an EEA residence card, both rejected on grounds of insufficient proof of a durable relationship with OA's father, "NA," who holds joint Finnish/Nigerian citizenship and is said to be self-employed in the UK.

Following a section 17 Children Act 1989 assessment by the London Borough of Camden, temporary accommodation was initially provided to AA and OA. However, the authority decided that AA was not destitute and therefore not entitled to further support, requiring her to vacate the accommodation within 14 days. A pre-action protocol letter was sent by AA’s solicitors challenging the decision, including evidence of an application for Finnish citizenship for OA made by his father. The local authority indicated willingness to reconsider but did not address the citizenship application in its final response.

AA vacated the accommodation but subsequently obtained an interim relief order allowing her to return. The judicial review claim challenges the lawfulness of the local authority’s decision to cease support and the procedural fairness of the assessment process.

Legal Issues Presented

1. Whether there was a failure to undertake a lawful section 17 assessment and/or human rights assessment, including procedural unfairness by drawing adverse inferences without affording an opportunity to respond.
2. Whether the local authority unreasonably failed to reconsider its decision in light of fresh evidence, including the application for Finnish citizenship for OA.
3. Whether the period of 14 days' notice to vacate accommodation was unreasonably short, constituting a breach of duty to act reasonably.
4. Whether OA and AA have rights of residence under the Immigration (European Economic Area) Regulations 2016 and related EU law, affecting the local authority’s obligations under Schedule 3 to the Nationality, Immigration and Asylum Act 2002.

Arguments of the Parties

Appellant's Arguments

• The local authority failed to provide a fair procedure by drawing adverse inferences of dishonesty against AA without giving her an opportunity to respond before making the decision.
• The local authority acted irrationally by not properly reconsidering the decision after receiving fresh evidence, notably the Finnish citizenship application for OA.
• The 14-day notice period to vacate accommodation was unreasonably short.
• OA has an arguable right to reside in the UK under the EEA Regulations as the child of an EEA national exercising treaty rights, and AA may derive a right of residence, which affects entitlement to support under the Children Act and Schedule 3 of the 2002 Act.

Respondent's Arguments

• The decision letter of 25 June was not a final decision but an invitation to comment, with the final decision made in the letter dated 5 July.
• The local authority was entitled to draw adverse inferences based on the evidence and did not act unlawfully in its assessment.
• The Secretary of State for the Home Department argued that the EEA Regulations should be read with a requirement that family members must be accompanying or joining the qualified person, though this interpretation was not supported by the claimant’s counsel.
• The 14-day notice period was reasonable given accommodation demand.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the procedural fairness ground, emphasizing established principles that public authorities must give affected persons a fair opportunity to respond to adverse inferences, particularly those suggesting dishonesty. The court found it arguable that the local authority failed to do so by issuing a decision requiring AA and OA to vacate accommodation without prior opportunity to respond to the "chronology of misinformation," a document alleging inconsistencies amounting to deliberate falsehoods.

The court rejected the respondent’s argument that the 25 June letter was not a final decision and held that adverse inferences were drawn before giving AA a chance to respond, contrary to fairness principles. The court stressed that the responses AA eventually provided should have been considered before the decision.

Regarding the failure to reconsider the decision, the court found it arguable that the local authority acted irrationally by not properly considering fresh evidence, specifically the Finnish citizenship application for OA, which could affect rights to reside and entitlement to support. The court noted that the local authority’s final letter omitted any reference to this significant evidence despite earlier acknowledging it.

On the question of rights under the EEA Regulations and EU law, the court accepted that it was arguable OA had a right to reside as the child of an EEA national exercising treaty rights, and AA could derive a right of residence, which would impact the local authority’s obligations under Schedule 3 of the 2002 Act. The court found the claimant’s interpretation of the Regulations as plain and simple to be arguable and rejected the respondent’s more restrictive interpretation.

The court declined to grant permission on the ground concerning the reasonableness of the 14-day notice period, considering it not unreasonable given the circumstances and demand for accommodation.

Holding and Implications

The court GRANTED PERMISSION to proceed with the judicial review claim on grounds 1 and 2, relating to procedural fairness and failure to reconsider the decision in light of fresh evidence, but REFUSED PERMISSION on ground 3 concerning the notice period to vacate accommodation.

The decision requires the local authority to reconsider its decision following proper procedural fairness and taking into account all relevant evidence, including the Finnish citizenship application. The court’s ruling reinforces the importance of fair procedures in public law decision-making, especially where allegations of dishonesty are involved, and underscores the need for local authorities to consider immigration and EU law rights when assessing support obligations under the Children Act and related legislation. No new legal precedent was established; rather, the court applied established principles to the facts of this case.