Al-Almeri v Kensington and Chelsea Royal London Borough Council; Osmani v Harrow London Borough Council. Glasgow City Council, intervening
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon Brown |
| Judgment Date | 28 February 2003 |
| Neutral Citation | [2003] EWCA Civ 235 |
| Date | 28 February 2003 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2002/1930/CCRTF |
[2003] EWCA Civ 235
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Reynolds —2002/1930)
THE WILLESDEN COUNTY COURT
(Her Honour Judge Dangor —2002/2135)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Simon Brown
(Vice-president of the Court of Appeal Civil Division)
Lord Justice Buxton and
Lord Justice Carnwath
Case No: B2/2002/1930/CCRTF
B2/2002/2135/CCRTF
Jan Luba Esq, QC & Stephen Reeder (instructed by Messrs Lewis Nedas & Co) for the Appellant Al-Ameri
Jan Luba Esq, QC & Ms Liz Davies(instructed by Shelter) for the Appellant Osmani
James Findlay Esq & Ms Peggy Etiebel (instructed by Royal Borough of Kensington & Chelsea) for the Respondent Royal Borough
Ashley Underwood Esq QC & Kelvin Rutledge Esq (instructed by London Borough of Harrow) for the Respondent London Borough
Richard Drabble Esq QC & Ms Jacqueline Williamson (instructed by Messrs Lewis Silkin) for the Intervener, Glasgow City Council
Is residence in a district in accommodation provided to a destitute asylum seeker under legislation which requires the provider to ignore any preference of the asylum seeker as to where he resides capable of being regarded as residence (in that district) of the asylum seeker's own choice? That in the last analysis is the issue raised on these appeals and, as will appear, its resolution is not as obvious as it might seem. In thus formulating it I have sought to paraphrase and interrelate the two most central provisions of the governing legislation, respectively s97(2)(a) of the Immigration and Asylum Act 1999 and s199(1)(a) of the Housing Act 1996. To see more precisely how the issue arises it is convenient at once to explain (and where necessary set out) the relevant parts of both Acts.
The Housing Act 1996 ("the 1996 Act")
A person who satisfies a local housing authority that he is homeless, eligible for assistance, in priority need, and not homeless intentionally, is entitled under s193 of the 1996 Act to accommodation. The local housing authority's duty under s193 is to "secure that accommodation is available for occupation by the applicant" for up to two years. Pending a decision upon whether that duty is owed (and, if so, by which authority) the authority are under a corresponding interim duty under s188 (and, in cases of possible referral to another authority, under s200(1)).
Section 208(1) provides that:
"So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part [Part VII which includes sections 188, 193 and 200] secure that accommodation is available for the occupation of the applicant in their district."
An authority which would otherwise be liable to provide accommodation under s193 is in certain circumstances entitled to refer the case to another local housing authority for them to discharge the duty. Section 198(2) of the 1996 Act provides:
"The conditions for referral of the case to another authority are met if-
(a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made,
(b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority and,
(c) neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district."
The critical question arising on these appeals is whether the appellants have a local connection with the district of "that other authority" —whether, in other words, condition (b) is satisfied. For convenience I shall henceforth refer to "that other authority" as authority B and the authority to whom the application was made as authority A.
Section 199 of the 1996 Act is cross-headed "Local connection" and lies at the heart of these appeals. I must set it out almost in full:
"(1) A person has a local connection with the district of a local housing authority if he has a connection with it-
(a) because he is, or in the past was, normally resident there, and that residence is or was of his own choice,
(b) because he is employed there,
(c) because of family associations, or
(d) because of special circumstances.
(2) A person is not employed in a district if he is serving in the regular armed forces of the Crown.
(3) Residence in a district is not of a person's own choice if-
(a) he becomes resident there because he, or a person who might reasonably be expected to reside with him, is serving in the regular armed forces of the Crown, or
(b) he, or a person who might reasonably be expected to reside with him, becomes resident there because he is detained under the authority of an Act of Parliament.
(4) … [This defines "regular armed forces of the Crown"]
(5) The Secretary of State may by order specify other circumstances in which-
(a) a person is not to be treated as employed in a district, or
(b) residence in a district is not to be treated as of a person's own choice."
Part VI of the 1999 Act took effect in April 2000. It excludes those who are subject to immigration control from access to general community care services, accommodation and benefits and provides in its place a new system of support administered by the National Asylum Support Service ("NASS"), part of the Immigration and Nationality Directorate ("IND"), under the control of the Secretary of State for the Home Department. Section 95(1) of the 1999 Act allows the Secretary of State to provide support for asylum seekers or their dependents who appear to him to be destitute (or imminently likely to become so). Destitution is defined by s95(3):
"(3) For the purposes of this section, a person is destitute if-
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs."
Section 96 allows support to be provided under s95 inter alia "(a) by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependents (if any)".
Section 97 provides:
"(1) When exercising his power under section 95 to provide accommodation, the Secretary of State must have regard to-
(a) the fact that the accommodation is to be temporary pending determination of the asylum-seeker's claim;
(b) the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation; and
(c) …
(2) But he may not have regard to-
(a) any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided; or
(b) …"
Those, then, are the principal provisions of the primary legislation giving rise to the issue now before us.
Before turning to the facts it is convenient next to indicate something of the background to the NASS dispersal scheme and of its operation in practice. Although this material is before us in the greatest detail, I propose to summarise it very briefly.
In July 1998, at a time when asylum seekers were being supported by the Benefits Agency and by local authorities, the government issued a White Paper entitled "Fairer, Faster, Firmer —a Modern Approach to Immigration and Asylum" on the introduction of a new national support system for asylum seekers. It was stated in paragraph 8.21 of the White Paper that: "[s]upport … will be available only where it is clearly necessary while an application is awaiting decision or appeal. Accommodation, in such circumstances, will be provided on a no choice basis, with no cash payment for this purpose being made to the asylum seeker". Paragraph 8.22 of the White Paper stated that "Asylum seekers would be expected to take what was available, and would not be able to pick and choose where they were accommodated, but where possible, placements would take account of the value of linking to existing communities and the support of voluntary and community groups".
Consistently with the White Paper and with the provisions of the 1999 Act, IND issued a number of policy bulletins on the operation of the dispersal system. These bulletins, and the annexed draft letters to be sent to asylum seekers applying under the scheme, emphasise that, although account is taken of the person's individual circumstances, accommodation is allocated on a no choice basis and those who fail to travel as instructed are liable to lose all support.
Turning to the facts of these appeals it is convenient first to summarise the position in a very few sentences. Both appellants were asylum seekers allocated by NASS to accommodation in Glasgow. As asylum seekers they were not eligible for assistance under the 1996 Act. Both, however, later became eligible, Mr Al-Ameri, an Iraqi, on being granted exceptional leave to remain, Mrs Osmani, an Afghani, on obtaining indefinite leave to remain as a refugee. Their entitlement to accommodation under the NASS scheme thereupon ended. Both came south to London and sought accommodation from the respondent authorities under the 1996 Act, Mr Al-Ameri from the Royal Borough of Kensington and Chelsea ("K&C"), Mrs Osmani from the London Borough of Harrow ("LBH"). Both were found to...
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