Mr Afham Ismail v London Borough of Newham
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten |
| Judgment Date | 28 March 2018 |
| Neutral Citation | [2018] EWCA Civ 665 |
| Date | 28 March 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2015/4368 |
[2018] EWCA Civ 665
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HH Judge Mitchell
B02BO417
Royal Courts of Justice
Strand. London. WC2A 2LL
Lord Justice Patten
Case No: B5/2015/4368
Mr Ismail appeared in person
Ms Stephanie Lovegrove (instructed by London Borough of Newham) appeared for the Respondent
Hearing date: 22 March 2018
Judgment Approved
On 23 October 2014 the appellants, Mr and Mrs Ismail, applied to the respondent local authority (“the Council”) for housing assistance under Part VII of the Housing Act 1996 (“HA 1996”). Mr Ismail is a Sri Lankan national. Mrs Ismail is a national of Mauritius. They have three children all born in the UK. By the time of the application they were threatened with eviction from their accommodation at [an address in] London. Mr Ismail stated in his application form that he had made an application for asylum to the Home Office which was still pending and therefore had no right to remain in the UK. The Council took the view that as a person subject to immigration control he was not eligible for housing assistance and was owed no housing duty under Part VII regardless of whether he could otherwise establish a priority need: see HA 1996 s. 185.
On 3 December 2014 Mr Ismail requested a review of the decision under s.202 HA 1996. The Council contacted the Home Office and was informed that both Mr and Mrs Ismail's application for asylum had in fact been rejected and that their rights of appeal had also been exhausted. The reviewing officer confirmed the original decision that Mr Ismail was not eligible for assistance by virtue of the provisions of s.185. In relation to the children, the officer said that although they were born in the UK they were not British nationals and could not be relied on to qualify the family Ismail for assistance under Part VII. I should add that because they had children, Mr and Mrs Ismail had been offered accommodation under s.95 of the Immigration and Asylum Act 1999 but they had rejected this because the accommodation was unlikely to be in the London Borough of Newham.
Mr and Mrs Ismail appealed against the review decision to the County Court under s.204 HA 1996. The judge, HH Judge Mitchell, refused to join the children as parties to the appeal or to transfer the appeal to the High Court so that Mr and Mrs Ismail could seek a declaration that s.185 is incompatible with Article 8 of the European Convention on Human Rights. On the substantive issue of whether Mr and Mrs Ismail were eligible for housing assistance under Part VII, the judge held that they were both subject to immigration control and accordingly were excluded from being eligible by s.185. He then turned to consider the position of the children.
The children, the judge held, are not British citizens because they do not satisfy the conditions set out in s.1 of the British Nationality Act 1991. This requires the father or mother to be either a British citizen or to have been settled in the UK at the time of their birth. Since neither Mr nor Mrs Ismail is a British citizen and neither have a right to remain in the UK, these conditions are not made out. That left the question whether the children could themselves qualify for assistance under Part VII because they were not “persons from abroad” within the meaning of s.185(1) HA 1996. So far as material, s.185 provides:
“(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.
….
(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 a person falling within subsection (5) —
(a) is homeless or threatened with homelessness, or
(b) has a priority need for accommodation.”
On one view of s.185 the exclusion depends upon the appellant being a person from abroad and someone who (by virtue of being subject to immigration control) is not 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 “a person from abroad” must mean a person who is ineligible for housing assistance under sub-s (2) to sub-s (4) of s 185 such a person may have physically come to this country from a foreign country. However, he need not necessarily have done so. Persons who, unless excluded under sub-s (2A) or sub-s (3), are subject to immigration control will be treated as if they were from abroad.”
Judge Mitchell said that he should apply this construction of the Act, although obiter, and accordingly dismissed the appeal. The appellants and the children did not fall within any of the categories for re-inclusion under the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (SI 2006/1294) (as amended) and were therefore ineligible for housing assistance.
Mr and Mrs Ismail sought permission for a second appeal to this Court on a number of grounds but were granted permission by Floyd LJ on 17 October 2016 only on the issue of whether the children were persons from abroad within the meaning of s.185 HA 1996. Skeleton arguments were filed by Mr and Mrs Ismail (acting in person) and by the Council.
On 26 January 2017 the Court was informed by the Council that Mr Ismail had recently been granted limited leave to remain and was therefore now eligible for assistance under Part VII. He had made a new application for housing assistance and would be accommodated by the Council with his wife and children. In these circumstances, the Council notified the Court that it considered that the appeal had become academic. The appellants, however, maintained that it raised an issue of some general importance and should be heard.
The parties' respective observations were passed to Henderson LJ, the Supervising Lord Justice, who took the view that the appeal has become academic and should not be re-listed for hearing. A provisional hearing date fixed for 9 February 2017 had been vacated. Henderson LJ said:
“In my view, the appeal is now academic and it should not be relisted for hearing.
Since Mr Ismail has now been granted limited leave to remain, he is eligible for assistance under Part VII of the Housing Act 1996 for himself and his dependent family...
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