CASE OF BAH v. THE UNITED KINGDOM
No violation of Art. 14+8
George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
5. 6. The applicant arrived in the United Kingdom in 2000 as an asylum seeker from Sierra Leone. Although her asylum claim was refused, she was granted exceptional leave to remain and then, in 2005, indefinite leave to remain. After she obtained indefinite leave to remain, she applied to have her son Mohamed Saliou Jalloh, a Sierra Leonean national born in 1994, join her in the United Kingdom. Her son arrived in January 2007, with conditional leave to remain in the United Kingdom, the condition being that he must not have recourse to public funds. He is considered as being “subject to immigration control” within the meaning of the Asylum and Immigration Act 1996, as is the applicant (see paragraph 12 below). 7. At the time of her son’s arrival in the United Kingdom, the applicant was renting a room in a private home. However, her landlord was unwilling to accommodate her son as well, and informed the applicant shortly after her son’s arrival that they would have to move out by 31 March 2007. The applicant applied to the London Borough of Southwark Council for assistance on 9 February 2007, on the basis that she had become unintentionally homeless. An unintentionally homeless person with a minor child would ordinarily qualify as being in priority need pursuant to section 189 of the Housing Act 1996 (see paragraph 13 below), and would thus be provided with suitable housing, usually within the locality. Those in priority need are considered to be a class of persons to whom reasonable preference must be given in the allocation of social housing. As there is a significant shortage of social housing in London, those in priority need would generally be placed in temporary accommodation until appropriate social housing became available. In the case of the applicant, however, as her son was subject to immigration control, he was disregarded by the Council in the determination of whether the applicant was in priority need, in accordance with section 185(4) of the Housing Act 1996. On 14 March 2007 the Council decided that the applicant was not therefore in priority need and not entitled to social housing. 8. The applicant requested a review of this decision, which was carried out by a senior officer, who reiterated that persons subject to immigration control are not eligible for housing assistance and that persons who are not eligible for housing assistance shall be disregarded when determining whether another person has a priority need for accommodation. As the applicant’s son was not eligible, the applicant did not have a priority need. Consideration was also given to the question of whether the applicant was vulnerable for any other reason; however, it was found that the applicant was not hindered in the performance of everyday tasks by any medical problems and that she was no less able to fend for herself than the average person. There was therefore no special reason to find that she was entitled to homelessness assistance due to vulnerability. On 24 May 2007 the original decision was upheld. 9. The Council assisted the applicant to find a private-sector tenancy in September 2007, which she accepted. The applicant and her son were not therefore at any point actually homeless. However, the private tenancy was more expensive than a social tenancy would have been, and was outside the Borough of Southwark and therefore far from the applicant’s previous employment and her son’s school. The applicant claimed that she had to give up her job after three months of commuting as she was unable to cope with the travel required, and that her son spent four hours per day travelling to and from school. 10. The applicant, who had remained on the waiting list for social housing in the Borough of Southwark, obtained an offer of a social tenancy of a one-bedroom flat in March 2009. She and her son therefore moved back to Southwark. 11. Section 9, subsections 1 and 2, of the Asylum and Immigration Act 1996 provide: “(1) Each housing authority shall secure that, so far as practicable, no tenancy of, or licence to occupy, housing accommodation provided under the accommodation Part is granted to a person subject to immigration control unless he is of a class specified in an order made by the Secretary of State. (2) A person subject to immigration control— (a) shall not be eligible for accommodation or assistance under the homelessness Part; and (b) shall be disregarded in determining, for the purposes of that Part, whether another person— (i) is homeless or is threatened with homelessness; or (ii) has a priority need for accommodation, unless he is of a class specified in an order made by the Secretary of State ...” 12. Section 13(2) of the same Act defines “a person subject to immigration control” as being a person who under the Immigration Act 1971 requires leave to enter or remain in the United Kingdom (whether or not such permission has been given). 13. The Housing Act 1996, as amended by Schedule 15 to the Housing and Regeneration Act 2008, provides, in its relevant parts, as follows: “(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves— (a) whether he is eligible for assistance; and (b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part. ... (3A) If the authority decide that a duty is owed to the applicant under section 193(2) or 195(2) but would not have done so without having had regard to a restricted person, the notice under subsection (3) must also— inform the applicant that their decision was reached on that basis, include the name of the restricted person, explain why the person is a restricted person, and explain the effect of section 193(7AD) or (as the case may be) section 195(4A) ... (7) In this Part ‘a restricted person’ means a person— (a) who is not eligible for assistance under this Part; (b) who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996; and (c) either— (i) who does not have leave to enter or remain in the United Kingdom; or (ii) whose leave to enter or remain in the United Kingdom is subject to a condition to maintain and accommodate himself, and any dependents, without recourse to public funds. (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. ... (4) A person from abroad who is not eligible for housing assistance shall be disregarded in determining for the purposes of this Part whether a person falling within subsection (5) — (a) is homeless or threatened with homelessness; or (b) has a priority need for accommodation. (5) A person falls within this subsection if the person – (a) falls within a class prescribed by regulations made under subsection (2); but (b) is not a national of an EEA State or Switzerland. ... (1) The following have 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. ... (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. (3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section. ... (3B) In this case ‘a restricted case’ means a case where the local housing authority would not be satisfied as mentioned in subsection (1) without having had regard to a restricted person. ... (7AA) In a restricted case the authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the matters mentioned in subsection (7AB)— (a) accepts a private accommodation offer; or (b) refuses such an offer. (7AB) The matters are— (a) the possible consequence of refusal of the offer; and (b) that the applicant has the right to request a review of the suitability of the accommodation.” 14. The Regulations, made by the Secretary of State in the exercise of powers conveyed by certain sections of the Housing Act 1996, referred to above, provide in their relevant parts as follows: “The following classes of persons subject to immigration control are persons who are eligible for an allocation of housing accommodation under Part 6 of the 1996 Act— (a) Class A – a person who is recorded by the Secretary of State as a refugee within the definition in Article 1 of the Refugee Convention and who has leave to enter or remain in the United Kingdom; (b) Class B – a person— (i) who has exceptional leave to enter or remain in the United Kingdom granted outside the provision of the Immigration Rules; and (ii) who 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 is habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and whose leave to enter or remain in the United Kingdom is not subject to any limitation or condition, other than a person— (i) who has been given leave to enter or remain in the United Kingdom upon an undertaking given by his sponsor; (ii) who has been resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland for less than five years beginning on the date of entry or the date on which his sponsor gave the undertaking 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; ... (1) The following classes of persons subject to immigration control are persons who are eligible for housing assistance under Part 7 of the 1996 Act— (a) Class A – a person who is recorded by the Secretary of State as a refugee within the definition in Article 1 of the Refugee Convention and who has leave to enter or remain in the United Kingdom; (b) Class B – a person— (i) who has exceptional leave to enter or remain in the United Kingdom granted outside the provision of the Immigration Rules; and (ii) who 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 is habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and whose leave to enter or remain in the United Kingdom is not subject to any limitation or condition, other than a person— (i) who has been given leave to enter or remain in the United Kingdom upon an undertaking given by his sponsor; (ii) who has been resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland for less than five years beginning on the date of entry or the date on which his sponsor gave the undertaking 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.” 15. On 14 October 2005 the Court of Appeal handed down its judgment in this case, which involved a woman who was a British citizen and her daughter who was subject to immigration control. The local authority had refused to treat mother and daughter as being in priority need of homelessness assistance when they became unintentionally homeless, due to the daughter’s immigration status. The Court of Appeal held that Part VII of the Housing Act 1996 and specifically sections 188, 189 and 193 were designed to protect the family lives of the homeless by ensuring that families who became unintentionally homeless were accommodated together. It therefore fell within the ambit of Article 8 of the Convention. A majority of the Court of Appeal found that the basis of distinction between Mrs Morris, on the one hand, and the parent of a child who was not subject to immigration control, on the other, was either the national origin of the child, or a combination of statuses including nationality, immigration status, settled residence and social welfare. It was not considered necessary to decide finally whether there was one sole factor on which the distinction was based; the important point was that nationality was among the factors. As such, very weighty or solid justification was required if the distinction was to be found to be compatible with the Convention. The Court of Appeal found that, regardless of the precise basis of the differential treatment, the justification offered by the Government – the need to preserve immigration control and to prevent “benefits tourism” – was not sufficiently weighty, nor was it a proportionate and reasonable response to the perceived problem. The discouraging of “benefits tourism” or the “over-staying” of dependent relatives was an intelligible policy goal, but was not served by legislative measures which discouraged British citizens or those with a right of abode from coming to or remaining in the United Kingdom, because they could not accommodate their dependent relatives who were also lawfully permitted to be in the United Kingdom. Section 185(4) was found not to be a proportionate or even logical response to the perceived problem. The Court of Appeal observed that it was not apparent that the Government or Parliament had considered the potentially discriminatory impact of the legislation; however, even if such impact had been considered, it could not be considered to fall within even the very wide margin of appreciation that the Government enjoyed with regard to such matters. 16. The Court of Appeal therefore made a declaration of incompatibility in the following terms: “That [section] 185(4) of the Housing Act 1996 is incompatible with [Article] 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 when a British citizen has a priority need for accommodation when that child is subject to immigration control.” 17. The case of Mrs Morris was considered by the Court of Appeal alongside that of Mr Badu, who had indefinite leave to remain in the United Kingdom but was considered by the court to have “equivalent status” to British citizenship (see paragraph 60 of the Court of Appeal judgment). He too was excluded by section 185(4) from establishing a priority need for housing assistance because his child was subject to immigration control. Unlike Mrs Morris, however, at the time of the Court of Appeal’s judgment, he had an ongoing need for assistance, being still prospectively homeless. This situation would not be alleviated by the declaration of incompatibility, since the impugned provision would remain in force until changed by Parliament. Mr Badu’s case was therefore remitted by the Court of Appeal to the relevant local authority for reconsideration, with specific regard to whether he could be provided with accommodation under powers conferred upon the authority by other legislation. 18. As a result of the declaration of incompatibility in Westminster City Council v. Morris, the Government amended the Housing Act 1996 by means of Schedule 15 to the Housing and Regeneration Act 2008, as noted above. The changes addressed the incompatibility in so far as British citizens are concerned but meant that a person such as Mr Badu or indeed the applicant in this case, with indefinite leave to remain, would still not be considered to be in priority need of housing assistance if his or her eligibility was dependent on another person who was from abroad and subject to immigration control, such as the applicant’s son. Moreover, in the case of a British citizen like Mrs Morris or a European Economic Area (EEA) or Swiss national, where the priority need resulted from a dependent child who was subject to immigration control, the local authority’s duty to provide accommodation would be satisfied by the local authority procuring an offer of a tenancy from a private landlord, whether or not the applicant chose to accept such an offer. In cases where there was a dependent child who was not subject to immigration control, by contrast, the local authority’s duty would not be discharged by procuring such an offer if the applicant chose not to accept it.