Kaya v Haringey London Borough Council and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE BUXTON,LORD JUSTICE JONATHAN PARKER |
| Judgment Date | 01 May 2001 |
| Neutral Citation | [2001] EWCA Civ 677 |
| Docket Number | B2/2001/0115 |
| Date | 01 May 2001 |
| Court | Court of Appeal (Civil Division) |
[2001] EWCA Civ 677
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EDMONTON COUNTY COURT
(His Honour Judge Hodges)
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lord Justice Buxton
Lord Justice Jonathan Parker
B2/2001/0115
MR MANJIT GILL QC and MR JON HOLBROOK (Instructed by Traymans, 167 Stoke Newington Church Street, London N16 GUL) appeared on behalf of the Appellant.
MR JAMES FINLAY (Instructed by Harvey Chapell, Alexandra House, Station Road, London N22 4TR) appeared on behalf of the First Respondent.
MR NIGEL GIFFIN (Instructed by Office of the Solicitor, Department of Social Security, New Court, 48 Carey Street, London WC2A 2LS) appeared on behalf of the Second Respondent.
Tuesday, 1st May 2001
I will ask Buxton LJ to give the first judgment.
The appellant in this appeal, Mr Kaya, is an asylum seeker. He was born in Turkey and is of Kurdish race. He came to the UK in August 1997 claiming asylum on arrival on the grounds that, as he alleged, he had been detained by the Military Police in Turkey and tortured there. His claim for asylum apparently has still not been determined some three and a half years after it was made.
On 14th May 2000 Mrs Kaya, as she now is, arrived in the United Kingdom. She married Mr Kaya on 22nd May 2000. She also is an asylum seeker on the same, or broadly the same, grounds as her husband, in particular that she is a Kurd.
Both Mr Kaya and Mrs Kaya, having made their claim for asylum on arrival, were granted temporary admission to this country under the provisions of paragraph 21 of Schedule 2 to the Immigration Act 1971. That reads as follows:
"(1) A person liable to detention or detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him."
It is to be noted, for reasons to which I shall have to return, that temporary admission is distinctly different from the person who arrives being given leave to enter the United Kingdom under section 3 of the 1971 Act.
These proceedings arise because Mr and Mrs Kaya were unfortunately evicted from their previous premises on 5th October 2000 and are homeless. They seek accommodation from the London Borough of Haringey as homeless persons under the provision of Part 7 of the Housing Act 1996. They assert, first, that they are not intentionally homeless, a matter with which we are not concerned; and, second, because Mrs Kaya was in October 2000 pregnant when they made their claim for accommodation, that they had a priority need by reason of her pregnancy. That priority need on the part of Mr Kaya arises from Mrs Kaya's pregnancy under the terms of section 189(1)(a) of the Housing Act 1996. For Mr Kaya to be able to assert that priority need it is necessary to demonstrate that Mrs Kaya is eligible for housing assistance. That is so provided by section 185(4) of the Housing Act 1996. Because Mrs Kaya is an asylum seeker and therefore a person subject to immigration control, it is necessary to demonstrate that she fulfils the requirements of section 185(2) of the Housing Act 1996, which reads as follows:
"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."
Her claim to fall within a class prescribed by regulations made by the Secretary of State is made under the Homelessness (England) Regulations 2000, regulation 3 and Class E thereof. That reads as follows:
"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)."
Then a series of cases is set out and we come to Class E, which reads as follows:
"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 and is lawfully present in the United Kingdom."
Mrs Kaya is a national of a state that has ratified the European Convention on Social and Medical Assistance (to which I shall refer here after as "ECSMA") because she is a national of the State of Turkey. At first sight, therefore, it would appear that she does fulfil that somewhat convoluted requirement for eligibility for housing assistance. Two arguments are, however, adduced in this appeal to demonstrate that she in fact does not fulfil that requirement and, therefore, because she does not fulfil that requirement, neither does her husband.
The first is what I shall refer to as the construction argument. It is the argument that was ventilated before the judge below on the part of Haringey as the local housing authority. It runs as follows. There is now provided in the Housing Act 1996 a new section, section 185(2A). That provides as follows:
"Regulations may not be made under subsection (2) so as to include in a prescribed class any person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies."
Section 115 of the Immigration and Asylum Act excludes various persons from entitlement to Social Security benefits as that section sets out. By section 115(3):
"This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed."
Mrs Kaya is subject to immigration control. So far as the prescription of conditions is concerned, section 115(4) of the 1999 Act provides as follows:
"Regulations under subsection (3) may provide for a person to be treated for prescribed purposes only as not being a person to whom this section applies."
Acting under that power or liberty the Secretary of State has made regulations, the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, to address such a matter. Regulation 2(1) addresses the question of persons who are not excluded from specific benefits under section 115 of the 1999 Act, that is to say it takes out of what is a general exclusion of persons subject to immigration control certain protected classes. Regulation 2(1), so far as material, reads as follows:
"For the purposes of entitlement to income-based jobseeker's allowance, income support, a social fund payment, housing benefit or council tax benefit ., as the case may be, a person falling within a category or description of persons specified in Part I of the Schedule is a person to whom section 115 of the Act does not apply."
Amongst the persons specified in Part I of the Schedule are those to whom the ECSMA applies, that is to say persons who, like Mrs Kaya, are nationals of the state that has ratified the ECSMA.
The learned judge below, who had the burden of trying to put together this incremental series of provisions and savings came to the conclusion in a careful judgment that Mr and Mrs Kaya did not qualify for housing benefit. That was because his view was that section 115, the principal disqualifying section, was disapplied by the regulations only in respect of means-tested benefits and not otherwise, that is to say only in respect of those benefits duly listed in regulation 2(1) which I have read. He therefore concluded that section 115 otherwise applied to persons subject to immigration control, and thus excluded them from housing assistance.
It may be that that conclusion was theoretical only because the Homelessness Regulations were made before the prohibition in section 185(2)(a) came into force. We do not need to pass on that difficult question, and I shall not in this judgment deal further with the construction argument, because since the matter was before the learned judge a different argument has emerged on which basis it is further contended that Mr and Mrs Kaya are not entitled to housing assistance. This argument has emerged because since the matter was before the learned judge the Secretary of State for Social Security has applied to intervene in this appeal, not least because the issues are said to raise questions that go well beyond the simple question of housing assistance.
In that intervention the Secretary of State has been represented before us by Mr Giffin, who has furnished the court with an extremely helpful and careful skeleton argument. In going on to the objection raised by the Secretary of State, which has formed the centre point of this appeal and a point that was not before the judge below, it is however right that I should note that the Secretary of State did not find himself able in his written submissions to the court to support the basis upon which the learned judge below had decided this issue, though, as we understood it, that basis would still have been supported by the London Borough of Haringey had they been called upon in this appeal.
Put very briefly, the argument adduced by Mr Giffin in respect of the construction argument that I have just set out was to the effect that the true meaning of the various provisions was that, provided a person subject to immigration control was eligible for some sort of Social Security benefit, it followed that they would be eligible for housing assistance. We have not determined any of those...
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