CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 mars 2012

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She was represented before the Court by Mr A. King, a lawyer practising in London. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant lives with her husband, who is also a Nigerian citizen, and their four children, born in the United Kingdom respectively in 2004, 2006, 2007 and 2010. The applicant was granted discretionary leave to remain in the United Kingdom on 15 December 2010 for a period of three years. Her husband has indefinite leave to remain, granted on 19 January 2011. None of the children have leave to remain in their own right. In October 2010, having been made homeless from their previous accommodation, the applicant applied for housing assistance from the London Borough of Southwark Council under the Housing Act 1996 (“the Act”) (see below). Ordinarily, an unintentionally homeless person with children would qualify as being in priority need under section 189 (1) (b) of the Act and would thus be provided with suitable housing, usually within the locality, pursuant to section 193. 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. However, by letter dated 25 January 2011, the Council refused the applicant’s request for assistance on the grounds that the family did not qualify as being in priority need. This was due to the fact that the children of the family were “subject to immigration control” (see below) and had therefore, pursuant to section 185 (4) (b) of the Act, to be disregarded in determining whether the family were in priority need. As the family were not considered as being in priority need, the Council was under no duty to provide them with accommodation. On 7 February 2011, the applicant’s representatives sought a review of the Council’s decision. It was argued that the children were not subject to immigration control, as they had been born in the United Kingdom and would require leave to enter or remain only if they left the country and tried to return. As such, the children should not be disregarded pursuant to section 185 (4) of the Act in the determination of whether their parents were in priority need. It was also argued that the Act, as amended following the declaration of incompatibility in the case of Westminster v. Morris (see below), remained incompatible with the Convention, because it discriminated between nationals of the European Economic Area (EEA) and Switzerland, on the one hand, and nationals of other countries, on the other. As the new legislation was incompatible with human rights, the Council should exercise its discretion in using other legislative powers to provide the applicant with housing. The Council conducted a review of its original decision, which was upheld on 11 March 2011. The Council disputed the applicant’s contention that the children were not subject to immigration control; whether they left the United Kingdom or not, they still required leave to enter or to remain and as such were subject to immigration control. Although the applicant had discretionary leave to remain and her husband had indefinite leave to remain and both were, as such, eligible for housing assistance by reason of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006, SI 2006/1294 (“the Regulations”) (see below), both had acquired their status after the birth of their children and could not therefore confer immigration status on their children. Their children had no leave to remain in their own right and did not fall within any of the categories set out in the Regulations as being eligible for housing assistance. As such, they had to be disregarded in the determination of whether their parents were in priority need. The applicant and her husband had no special vulnerabilities which would confer upon them priority need in their own right. They had full recourse to public funds and there was no exceptional reason that they would be unable to find their own accommodation. The Council, furthermore, observed that it was required to work within the confines of the primary legislation as it currently applied, regardless of the applicant’s contention that it was incompatible with the Convention. It would not be appropriate, in the absence of a legislative duty to assist the applicant, to exercise discretion in order to provide her with housing, as to do so would to discriminate against the many other homeless persons who were not owed a duty by the Council. Demand for housing far outstripped the supply in the Borough and to provide housing for the applicant would impose an unreasonable financial burden upon the Council, and would be unfair to the many hundreds of households to whom the Council did owe a duty under the legislation and who were in temporary accommodation awaiting an allocation of social housing. The applicant was informed of her right to appeal the Council’s decision to the County Court. However, she did not exercise this right as she was aware that the County Court would be obliged to apply the domestic legislation. She did not seek a declaration of incompatibility in respect of the amended legislation because she did not consider it to be an effective remedy as it would not be binding upon the Government. The applicant was assisted by the Council to find a private sector tenancy, and she and her husband signed an assured shorthold lease for a twelve-month period on 24 March 2011. The tenancy obtained by the applicant is more expensive than social housing in the same Borough would be, and can be terminated at the landlord’s request. B.     Relevant domestic law 1.     Asylum and Immigration Act 1996 Section 9 sub-sections 1 and 2 of the Asylum and Immigration Act 1996 provide: “9.   Entitlement to housing accommodation and assistance (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 ...” 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 leave has been given). 2.     Housing Act 1996 The Housing Act 1996, as amended by Schedule 15 of the Housing and Regeneration Act 2008, provides insofar as relevant: “184.   Inquiry into cases of homelessness or threatened homelessness (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 – (a)     inform the applicant that their decision was reached on that basis, (b)     include the name of the restricted person, (c)     explain why the person is a restricted person, and (d)     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. 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. ... (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. ... 189.   Priority need for accommodation. (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. ... 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. (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.” 3.     Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006, SI 2006/1294 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 insofar as relevant: “3. Persons subject to immigration control who are eligible for an allocation of housing accommodation 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; ... 5. Persons subject to immigration control who are eligible for housing assistance. (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.” 4.     Westminster City Council v. Morris [2005] EWCA Civ 1184 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 amongst 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. The Court of Appeal therefore made a declaration of incompatibility in the following terms: “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 when a British citizen has a priority need for accommodation when that child is subject to immigration control.” 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 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. As a result of the declaration of incompatibility in Westminster 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 insofar as British citizens are concerned but meant that a person such as Mr Badu or indeed the applicant in this case, with discretionary leave to remain, would not be considered to be in priority need of housing assistance if his or her priority need was dependent on another person who was from abroad and subject to immigration control, such as the applicant’s children. Moreover, in the case of a British citizen like Mrs Morris or an 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. COMPLAINT The applicant complains that she has been a victim of unjustified discrimination under Article 14 of the Convention, taken in conjunction with Article 8, because the decision to treat her as not being in priority need of housing assistance was based on her, and her children’s, national origin.   QUESTIONS TO THE PARTIES 1.     What is the immigration status of the applicant’s four children? The Court observes in this regard that, while they were included on their mother’s application for discretionary leave to remain, they do not appear to have been granted such leave in line with their mother’s status.   2.     Has the applicant exhausted all domestic remedies available to her?   3.     Has the applicant been a victim of discrimination contrary to Article   14 of the Convention, taken in conjunction with Article 8?