Ehiabor v Royal Borough of Kensington & Chelsea
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Scott Baker,Lady Justice Arden |
| Judgment Date | 08 May 2008 |
| Neutral Citation | [2008] EWCA Civ 1074 |
| Date | 08 May 2008 |
| Docket Number | Case No: B2/2007/2608 |
| Court | Court of Appeal (Civil Division) |
[2008] EWCA Civ 1074
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE RYLAND)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lady Justice Arden DBE and
Lord Justice Scott Baker
Case No: B2/2007/2608
Mr J Luba QC and Mr A Berry (instructed by Messrs Oliver Fisher) appeared on behalf of the Appellant.
Mr K Rutledge (instructed by Royal Borough of Kensington & Chelsea) appeared on behalf of the Respondent.
(As Approved By Court)
This is an appeal from the judgment of HHJ Ryland sitting in the Central London Civil Justice Centre on 26 October 2007. The judge dismissed an appeal by Ms Edith Ehiabor (“the appellant”) against a review decision of the Royal Borough of Kensington and Chelsea (“the council”) made under section 202 of the Housing Act 1996 (“the 1996 Act”). It was submitted to the judge that the reviewing officer had erred in law in holding that the appellant was not in priory need for housing. That issue depends on whether the appellant's nephew, Samuel, is subject to immigration control. Permission to appeal has been granted on a consideration of the papers as raising a point of principle of sufficient importance to justify a second appeal.
On 1 September 2006 the appellant, a citizen of Nigeria, applied to the council for assistance as homeless. She had been granted indefinite leave to remain in the United Kingdom on 21 February 2003. She is eligible for housing assistance from the council but does not, under the 1996 Act, have a priority need in her own right. Her adult sister, Didi Ehiabor, was included on the application form as a member of her household. Didi has overstayed her leave to remain in the United Kingdom and is subject to a deportation order. Didi has a son, Samuel, born in the United Kingdom on 2 September 2003. The identity of his father is unknown to the council. It is not suggested that Samuel is a British citizen. He does not have a right of abode in the United Kingdom.
The reviewing officer accepted that the appellant's sister and nephew form part of her household but decided that neither her sister nor her nephew could confer priority need as eligible persons under section 185(4) of the 1996 Act. The council was prepared to assume for the purposes of the decision that the appellant had not become homeless intentionally (section 191) and that her sister and nephew are dependents (section 189(1)(b). It was held that Samuel was a person subject to immigration control and was excluded from consideration following the case of R (Morris) v Westminster City Council [2005] EWCA Civ 1184. In that case section 185(4) was found to be incompatible with the European Convention on Human Rights. But it is not suggested that such finding has any bearing on the current appeal. The case turns on whether the appellant has a priority need for housing for the purposes of part VII of the 1996 Act by virtue of Samuel, a dependent child, being a member of her household.
Section 185 provides:
“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 1999 (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.”
The appellant was seeking to rely on Samuel's membership of her household to establish priority need. The council contend that Samuel was not eligible for housing assistance. It follows from section 185(2) and (4) that a person's immigration status may be a bar to assistance. A person from abroad who is subject to immigration control is ineligible for assistance unless he falls within a prescribed class, and a person who is eligible for assistance does not have a priority need for accommodation on account of a dependent child residing with her if that child is ineligible. It is not submitted that Samuel comes within a prescribed class within the meaning of section 185(2).
It was established in Morris, and not challenged in this appeal, that a child born overseas who is a person subject to immigration control and who lacks leave to enter or remain cannot confer priority need. Such a child is excluded from eligibility for assistance by section 185(4). The issue in this case is whether a child born in the United Kingdom, but lacking leave to remain, can confer priority need for homelessness assistance. On behalf of the appellant it is submitted that such a child is not excluded from consideration under the eligibility provisions of the section, because he is not subject to immigration control within the meaning of section 185(2).
It is accepted on behalf of the appellant that Samuel is “a person from abroad” within the meaning of section 185(1) and (4) of the 1996 Act. If Samuel “requires” leave to remain under the Immigration Act 1971 (“the 1971 Act”), he is, for the purposes of section 13(2) of the Asylum and Immigration Act 1996, and so section 185 of the 1996 Act, a person “subject to immigration control”. Section 13(2) defines that person as “a person who under the 1971 Act requires leave to enter or remain in the United Kingdom (whether or not such leave has been granted)”. The case therefore turns on whether Samuel both requires leave to remain under the 1971 Act. Having regard to the concession made as to Samuel being a person from abroad, I do not intend to explore the scope of that legal term within the meaning of the section.
On the face of it, section 185 is, as Mr Luba QC for the appellant puts it, oblique in its requirements. There is no obvious link between sub-section (1) and sub-section (2). However, it is accepted that section 185 of the 1996 Act operates to exclude from eligibility persons who are (a) from abroad and (b) ineligible for assistance by reason of being subject to immigration control, unless re-included by regulations made under section 185(2). It is submitted that Samuel is not subject to immigration control because he is not a person who requires leave to remain. He is at liberty to apply for leave to remain in the United Kingdom but he is not obliged to do so and cannot be said to “require leave to remain”. Further, it is submitted, an application for leave would not make him subject to immigration control.
It is necessary to refer to the 1971 Act. Section 1 in part 1 is headed General Principles and provides:
“(1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.
(2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).”
Under the heading “General Provisions for Regulation Control”, section 3 provides, insofar as is material:
“(1) Except as otherwise provided by or under this Act, where a person is not a British citizen —
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period,
(c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions…”
On behalf of the appellant, Mr Luba submits that Samuel, born and resident in the United Kingdom though not a British citizen, is not subject to immigration control. Samuel would be subject to immigration control if he left the United Kingdom and sought to re-enter. But while he is here and can remain here he does not require leave to remain. In construing sections 1 and 3 of the 1971 Act, Mr Luba relies on the state of the law when it was enacted. In 1971 birth in the United Kingdom conferred a right of abode and British citizenship. That remained the position until the relevant section of the British Nationality Act 1948 was repealed in the British Nationality Act 1981 (“the 1981 Act”) section 52(8) and schedule 9. Thus sections 1 and...
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...eligible for assistance. This explains why in s.185(2) there is no reference to the applicant being from abroad. But in Ehiabor v Royal Borough of Kensington and Chelsea [2008] EWCA Civ 1074 Arden LJ said (at [25]): “[25] ….. In my judgment Mr Luba was correct to accept that the expression ......
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...to removal as family members. Mr de Mello refers to a decision of this court in Ehiabor v Royal Borough of Chelsea and Kensington [2008] EWCA Civ 1074. I gave the leading judgment, with which Scott Baker LJ agreed. The issue in that case was whether the appellants were subject to immigratio......