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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Westminster City Council & Anor v Morris [2005] EWCA Civ 1184 (14 October 2005) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2005/1184.html Cite as: [2006] HLR 8, [2006] 1 WLR 505, [2005] HRLR 43, [2006] UKHRR 165, [2005] EWCA Civ 1184, [2006] BLGR 81, [2006] WLR 505 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE KEITH
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SEDLEY
and
LORD JUSTICE JONATHAN PARKER
____________________
WESTMINSTER CITY COUNCIL THE FIRST SECRETARY OF STATE |
First Appellant Second Appellant |
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- and - |
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SYLVIANNE MORRIS THE QUEEN ON THE APPLICATION OF BADU and LONDON BOROUGH OF LAMBETH THE FIRST SECRETARY OF STATE |
Respondent Appellant Respondent Interested Party |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr D Pannick QC and Miss L Giovannetti (instructed by The Treasury Solicitor) for the Second Appellant
Mr Matthew Hutchings (instructed by TMK Solicitors) for the Respondent
Mr B McGuire(instructed by Balham Law Partnership) for the Appellant
Mr R Bhose (instructed by London Borough of Lambeth Legal Services) for the Respondent
Mr D Pannick QC and Miss L Giovannetti (instructed by The Treasury Solicitor) for the Interested Party
____________________
Crown Copyright ©
Lord Justice Sedley :
The Issues
The law
185. Persons from abroad not eligible for housing assistance
(1) A person is not eligible for assistance under this Part if he is a person from abroad who is ineligible for housing assistance.
(2) A person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he is of a class prescribed by regulations made by the Secretary of State.
[(2A) No person who is excluded from entitlement to housing benefit by section 115 of the Immigration and Asylum Act 1996 (exclusion from benefits) shall be included in any class prescribed under subsection (2).]
(3) The Secretary of State may make provision by regulations as to other descriptions of persons who are to be treated for the purposes of this Part as persons from abroad who are ineligible for housing assistance.
(4) A person from abroad who is not eligible for housing assistance shall be disregarded in determining for the purposes of this Part whether another person-
(a) is homeless or threatened with homelessness, or
(b) has a priority need for accommodation.
176. Meaning of accommodation available for occupation.
Accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with-
(a) any other person who normally resides with him as a member of his family, or
(b) any other person who might reasonably be expected to reside with him.
References in this Part to securing that accommodation is available for a person's occupation shall be construed accordingly.
187. Provision of information by Secretary of State
(1) The Secretary of State shall, at the request of a local housing authority, provide the authority with such information as they may require-
(a) as to whether a person is or has become an asylum-seeker, or a dependant of an asylum-seeker, and
(b) to enable them to determine whether such a person is eligible for assistance under this Part under section 185 (persons from abroad not eligible for housing assistance).
189. Priority need for accommodation
(1) The following have a priority need for accommodation-
(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.
193. Duty to persons with priority need who are not homeless intentionally
(1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
Classes of persons subject to immigration control who are eligible for housing assistance
3. (1) The following are classes of persons prescribed for the purposes of section 185(2) of the 1996 Act (persons subject to immigration control who are eligible for housing assistance) -
(a) Class A - a person recorded by the Secretary of State as a refugee within the definition in Article 1 of the Refugee Convention;
(b) Class B - a person -
(i) who has been granted by the Secretary of State exceptional leave to enter or remain in the United Kingdom outside the provisions of the immigration rules; and
(ii) whose leave is not subject to a condition requiring him to maintain and accommodate himself, and any person who is dependent on him, without recourse to public funds;
(c) Class C - a person who has current leave to enter or remain in the United Kingdom which is not subject to any limitation or condition and who is habitually resident in the Common Travel Area other than a person -
(i) who has been given leave to enter or remain in the United Kingdom upon an undertaking given by another person (his "sponsor") in writing in pursuance of the immigration rules to be responsible for his maintenance and accommodation;
(ii) who has been resident in the United Kingdom for less than five years beginning on the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later; and
(iii) whose sponsor or, where there is more than one sponsor, at least one of whose sponsors, is still alive;
(d) Class D - a person who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption;
(e) Class E - a person who is habitually resident in the Common Travel Area and who -
(i) is a national of a state which has ratified the European Convention on Social and Medical Assistance done at Paris on 11th December 1953[9] or a state which has ratified the European Social Charter done at Turin on 18th October 1961[10] and is lawfully present in the United Kingdom; or
(ii) before 3rd April 2000 was owed a duty by a housing authority under Part III of the Housing Act 1985[11] (housing the homeless) or Part VII of the 1996 Act (homelessness) which is extant, and who is a national of a state which is a signatory to the European Convention on Social and Medical Assistance done at Paris on 11th December 1953 or a state which is a signatory to the European Social Charter done at Turin on 18th October 1961;
(f) Class F - a person who is an asylum-seeker and who made a claim for asylum -
(i) which is recorded by the Secretary of State as having been made on his arrival (other than on his re-entry) in the United Kingdom from a country outside the Common Travel Area; and
(ii) which has not been recorded by the Secretary of State as having been either decided (other than on appeal) or abandoned;
(g) Class G - a person who is an asylum-seeker and -
(i) who was in Great Britain when the Secretary of State made a declaration to the effect that the country of which that person is a national is subject to such a fundamental change in circumstances that he would not normally order the return of a person to that country;
(ii) who made a claim for asylum which is recorded by the Secretary of State as having been made within a period of three months from the day on which that declaration was made; and
(iii) whose claim for asylum has not been recorded by the Secretary of State as having been either decided (other than on appeal) or abandoned;
(h) Class H - a person who is an asylum-seeker and -
(i) who made a relevant claim for asylum on or before 4th February 1996; and
(ii) who was, on 4th February 1996, entitled to benefit under regulation 7A of the Housing Benefit (General) Regulations 1987[12] (persons from abroad); and
(i) Class I - a person who is on an income-based jobseeker's allowance or in receipt of income support and is eligible for that benefit other than because -
(i) he has limited leave to enter or remain in the United Kingdom which was given in accordance with the relevant immigration rules; and
(ii) he is temporarily without funds because remittances to him from abroad have been disrupted.
(2) In paragraph (1)(h)(i) (Class H), a relevant claim for asylum is a claim for asylum which -
(a) has not been recorded by the Secretary of State as having been either decided (other than on appeal) or abandoned; or
(b) has been recorded as having been decided (other than on appeal) on or before 4th February 1996 and in respect of which an appeal is pending which -
(i) was pending on 5th February 1996; or
(ii) was made within the time limits specified in the rules of procedure made under section 22 of the 1971 Act[13] (procedure).
(3) In paragraph (1)(i)(i) (Class I), "relevant immigration rules" means the immigration rules relating to -
(a) there being or there needing to be no recourse to public funds; or
(b) there being no charge on public funds.
Descriptions of persons who are to be treated as persons from abroad ineligible for housing assistance
4. The following is a description of persons, other than persons who are subject to immigration control, who are to be treated for the purposes of Part VII of the 1996 Act (homelessness) as persons from abroad who are ineligible for housing assistance -
A person who is not habitually resident in the Common Travel Area other than -
(a) a worker for the purposes of Council Regulation (EEC) No. 1612/68[14] or (EEC) No. 1251/70[15];
(b) a person with a right to reside in the United Kingdom pursuant to the Immigration (European Economic Area) Order 1994[16] and derived from Council Directive No. 68/360/EEC[17] or No. 73/148/EEC[18];
(c) a person who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption;
(d) a person who is on an income-based jobseeker's allowance or in receipt of income support.
Article 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 14
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
"3. …Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in article 14. If this prerequisite is satisfied, the essential question for the courts is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact."
Does the issue lie within the ambit of article 8?
"…One of the main purposes of that Act was to secure that, when accommodation is provided for homeless persons by the housing authority, it should be made available for all members of his family together and to end the practice which had previously been common under which adult members of a homeless family were accommodated in hostels while children were taken into care, and the family thus split up. The emphasis on treating the family as a unit appears from section 1 which provides that a person is homeless for the purpose of the Act if he has no accommodation, and that he is to be treated as having no accommodation if there is no accommodation which he "together with any other person who normally resides with him as a member of his family …is entitled to occupy" (section 1 (1) (a)). The particular emphasis on families with children appears from section 2 which provides that a homeless person has "a priority need for accommodation" when the housing authority is satisfied that he is within one of certain categories, the first of which is that "he has dependant children who are residing with him or who might reasonably be expected to reside with him": (section 2 (1) (a))."
"13. In any event, what may or may not have been the main purpose of Part V11 as a whole, the undoubted purpose of section 189(1)(b) was to ensure that families would not be split up. In these circumstances, the relevant provisions in Part V11 of the 1996 Act, namely sections 188, 189 and 193, especially when seen against the background of section 176, were intended to promote family life. It follows that if section 185(4) amounts to a discriminatory restriction on the rights created by sections 188, 189 and 193 on any of the prohibited grounds, it would infringe Art. 14."
"And once that intention has been recognised, the necessary link between the relevant provisions in Part VII and art.8 has been established."
Is national origin the ground of the distinction?
Is the discrimination justified?
25. Colleagues in the Home Office confirm that the Government's immigration policy is that those who have not established a right to remain permanently in the UK, who are settled here on an undertaking that their relatives will support them, or whose entry is conditional on them not having recourse to public funds, should not have welfare provision on the same basis as those whose citizenship or immigration status gives them an entitlement to benefits when in need. Denying access to certain benefits and to publicly funded housing provision for those who are subject to immigration control helps protect public resources and strengthens immigration control by reducing the incentive for people to come to Britain for the purpose of claiming benefits or services. It also encourages people to regularise their stay if they are here illegally.
"The absence of that evidence is of little surprise since the purpose of the legislation is to deter non-British citizens from coming to the UK and claiming, or being used to claim, welfare benefits."
The discretionary area of judgment
What is the ground of discrimination?
The materiality of other forms of protection
Should there be a declaration of incompatibility?
"That s.185(4) of the Housing Act 1996 is incompatible with art.14 of the Convention to the extent that it requires a dependent child of a British citizen, if both are habitually resident in the United Kingdom, to be disregarded when determining whether the British citizen has a priority need for accommodation, when that child is subject to immigration control".
A declaration [of incompatibility] ….
1. does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
2. is not binding on the parties to the proceedings in which it is made.
- Section 192(3) of the Housing Act 1996. The section applies to people who are unintentionally homeless and eligible for assistance but not in priority need. The subsection (added by the Homelessness Act 2002) says: "The authority may secure that accommodation is available for occupation by the applicant."
- Section 17 of the Children Act 1989. The section places a general duty on local authorities to safeguard and promote the welfare of children in need and, so far as is consistent with that duty, to promote the upbringing of such children by their families. By subsection (6), as amended by the Adoption and Children Act 2002, they are permitted to discharge this function by "providing accommodation" as well as by giving assistance in kind or, exceptionally, in cash.
- Section 2 of the Local Government Act 2000. By subsection (1) this provision gives a local authority "power to do anything" which, inter alia, promotes the social well-being of their area; by subsection (2) the power may be exercised for the benefit of "any persons resident or present" in the authority's area. But section 3 provides that the s.2(1) power "does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation on their powers which is contained in any enactment".
It is Mr McGuire's submission that the local authority are duty-bound to exercise one of these powers in order to mend the vice revealed in s.185(4) by the declaration of incompatibility: duty-bound, in other words, to make up for their enforced discrimination against Mr Badu by affording him equivalent benefits under parallel powers.
"The power conferred by section 2 [of the Local Government Act 2000] is … capable of extending to the grant of financial assistance for acquiring accommodation."
"Of course, the mere fact that the power exists does not mean that the local authority is obliged to exercise it in any particular case."
Mr McGuire accepts this; but he points out also – and correctly – that not infrequently the facts are such that the only lawful decision is to exercise the power in question. That, he submits, is the case where, but for a measure which is incompatible with his Convention rights, the claimant would be entitled to a benefit which the authority has power to provide under another measure. Such a power, in such circumstances, becomes a duty.
Public Authorities
6. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if-
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
"assumes that the public authority could have acted differently but nevertheless excludes liability if it was giving effect to a statutory provision which cannot be read as Convention-compliant…" (§49).
Lord Hoffmann went on to explain that
"If legislation cannot be read compatibly with Convention rights, a public authority is not obliged to subvert the intention of Parliament by treating itself as under a duty to neutralise the effect of the legislation" (§51).
"If the defence was not there the authority would have no alternative but to exercise its discretion in a way that was compatible with the Convention rights. The power would become a duty to act compatibly with the Convention, even if to do so was plainly in conflict with the intention of Parliament."
Conclusion
Lord Justice Jonathan Parker:
Lord Justice Auld:
i) the provision made by section 185(4) of the Housing Act 1996 precluding a British parent from establishing a priority need for housing assistance where the claim is based on a resident dependent child who is ineligible for United Kingdom citizenship and, therefore, subject to immigration control, is within the ambit of Article 8 of the European Convention on Human Rights;
ii) the effect of section 185(4), when read with Article 8, is plainly discriminatory within the meaning of Article 14 of the Convention because the differential treatment for which it provides, turns on national origin, or, as discussed by Sedley LJ in paragraphs 50 and 51 of his judgment, on a combination of one or more of the following forms or aspects of status: nationality, immigration control, settled residence and social welfare;
iii) regardless of the precise basis of the differential treatment, for the reasons given by Sedley LJ in paragraphs 45 - 48 of his judgment, it could only be justified, particularly under Article 8, if there were "very weighty" or "solid" grounds for it, or if it could be shown that it is a proportionate and reasonable response to a perceived need to discourage "benefit tourism" by British citizens or the "overstaying" of any of their dependent children subject to immigration control;
iv) the justification advanced in these proceedings on behalf of the Secretary of State is neither "very weighty" nor "solid", nor does it amount to a proportionate and reasonable response by him to his concerns;
v) it is not apparent that the Executive in proposing, or Parliament in enacting, section 185(4) gave consideration to its potential discriminatory impact in any of the respects proscribed by Article 14 or to the justification, if any, for it; but even if they did, the enactment of such a provision, with such effect, could not have fallen within even the very wide ambit of discretion allowed to the Government and Parliament in such matters; and
vi) on the issue of compatibility and whether a court should in the exercise of its discretion under section 4(2) of the Human Rights Act, make a declaration of incompatibility, for the reasons given by Sedley LJ in paragrapahs 53 – 56 of his judgment, it is immaterial that there may be other forms of statutory protection, and the Court should grant a declaration in the form that he has proposed.
Mr. Badu's Case
Note 1 [2004] EWHC 2191 (Admin) [Back] Note 2 [2003] EWHC 2266 (Admin) [Back] Note 3 [2003] 1 WLR 617. [Back] Note 6 Botta v Italy (1998) 26 EHRR 241, §34; followed in Campbell v South Northants Council [2004] EWCA Civ 409.
[Back] Note 7 See the Belgian Linguistic case (1968) 1 EHRR 252.
[Back] Note 8 [2003] EWCA Civ 797; upheld [2004] UKHL ….
[Back] Note 9 [1983] AC 657, 663, per Lord Wilberforce. [Back] Note 10 See Gaygusuz v Austria (1996) Note 11 (1991) 13 EHRR 802. [Back] Note 14 Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, §61-67 [Back] Note 15 Evans v Amicus Healthcare Ltd [2004] 3 All ER 1025, CA [Back] Note 16 See D.Pannick, “The Law”, Fair of Speech: the uses of euphemism, ed D.J.Enright (1985), p.144: “….the reluctance of the law to call a spade a spade.” [Back] Note 17 (1985) 7 EHRR 471. [Back] Note 19 SeeGaygusuz v Austria, ante, §42. [Back] Note 20 [2002] EWHC 432 (Admin). [Back] Note 21 [2001] UKHL 25, §44. [Back]23 EHRR 364. Clearly they are not synonymous: national origin, like social origin, is given, whereas nationality is mutable. But in the vast majority of cases they are coextensive. [Back]