Asylum support - foreign national refused asylum - refusal of residence on basis of marriage of convenience - no entitlement to social security benefits pending determination of appeal against refusal of residence

R (Kimani) v Lambeth London Borough Council: CA (Lord Phillips of Worth Matravers MR, Lords Justice Judge and Kay): 31 July 2003

An asylum seeker was granted temporary admission but refused asylum.

Before she could be removed, she married an Irish national with a residence permit.

They later separated.

Her application for the right to residence was refused as her marriage was regarded as one of convenience.

She appealed, and was entitled to remain in the UK pending the hearing of the appeal.

She was refused benefits as the dependant of a national of the European Economic Area after schedule 3 of the Nationality Immigration and Asylum Act 2002 came into force.

She appealed.

Michael Supperstone QC and Ranjiv Khubber (instructed by the Joint Council for the Welfare of Immigrants) for the claimant; Nigel Giffin QC (instructed by Sternberg Reed Taylor & Gill) for the council; Jennifer Richards (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department (interested party).

Held, dismissing the appeal, that a spouse came within the definition of a dependant in schedule 3 of the 2002 Act and as such was ineligible for financial support from a local authority; that that definition did not exclude marriages of convenience; that unlike an asylum seeker who might fear persecution in his home country, a foreign national who was entitled to remain in the UK pending the determination of an appeal, had no right to support out of public funds when it was open to her to return to her home country.

(WLR)