R (Morris) v Westminster City Council (No 3)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Jonathan Parker,Lord Justice Auld |
| Judgment Date | 14 October 2005 |
| Neutral Citation | [2005] EWCA Civ 1184 |
| Docket Number | Case No: C1/2004/2408, C1/2004/2410, C1/2005/1313 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 October 2005 |
[2005] EWCA Civ 1184
Lord Justice Auld
Lord Justice Sedley and
Lord Justice Jonathan Parker
Case No: C1/2004/2408, C1/2004/2410, C1/2005/1313
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE KEITH
Mr D Warner (instructed by Westminster City Council Legal Services) for the First Appellant
Mr D Pannick QC and Miss L Giovannetti (instructed by The Treasury Solicitor) for the Second Appellant
Mr Matthew Hutchings (instructed by TMK Solicitors) for the Respondent
Mr B McGuire(instructed by Balham Law Partnership) for the Appellant
Mr R Bhose (instructed by London Borough of Lambeth Legal Services) for the Respondent
Mr D Pannick QC and Miss L Giovannetti (instructed by The Treasury Solicitor) for the Interested Party
Mrs. Morris's Case
The Issues
Mrs Morris, who comes from Mauritius, is a British citizen by descent. Her entry into the United Kingdom in April 2002 as a lawful visitor was accepted as presence as of right, marked by the issue to her of a UK passport, in August of that year. But her small daughter, who was with her, at the time with which this appeal is concerned lacked UK citizenship and was therefore subject to immigration control within the meaning of the Asylum and Immigration Act 1996. The daughter now has citizenship; but at a time in August 2002 when the two of them were faced with homelessness, Westminster City Council took the view that the daughter's status precluded the council from treating Mrs Morris, as she would otherwise have been entitled to be treated, as in priority need.
In a judgment given on 13 October 2003, Keith J held that where a dependent child is subject to immigration control, albeit the parent is not, the effect of s.185 of the Housing Act 1996 is that the parent cannot establish a priority need for accommodation. This is not now contested. He stood over the consequent question of whether he should make a declaration of incompatibility with the European Convention on Human Rights in order that the First Secretary of State could intervene, as he has elected to do.
Although the result of the first judgment was to disentitle Mrs Morris to priority need status, the case has become academic for her for several reasons. First, given her ineligibility, a declaration of incompatibility was not going to secure her housing. Secondly, and more happily, it has since been established that her daughter is not subject to immigration control. Thirdly, she has found work and no longer needs to seek public assistance with her housing. But she has been enabled by public funding to resist the present appeal on the issue of principle, brought by the First Secretary of State and Westminster City Council against the declaration of incompatibility which Keith J made in a judgment 1 delivered, after full argument, on 7 October 2004.
The starting point of the present appeal is that, as Westminster City Council had taken to be the case, a woman who is a UK citizen, with a dependent child who is not, cannot as a matter of law establish a priority need for accommodation. The full reasons why this is so are to be found in the first judgment of Keith J 2, which has not been appealed. His essential reason is that s.185(4) of the Housing Act 1996 prevents an otherwise eligible claimant from relying on a person subject to immigration control – here Mrs Morris's daughter—to bring her within the class (set out in s.189(1)(b)) of persons with dependent children. The provision marches with the general exclusion by s.185(2) of claimants who themselves are subject to immigration control.
It follows, in the contention of Matthew Hutchings, who represents Mrs Morris, that a frank distinction is made by the legislation on grounds of nationality: if the daughter had been a UK citizen, Mrs Morris would have been in priority need. This being so, he submits, the distinction made by the Housing Act 1996 lies within the ambit of ECHR art.8 because, in those cases which it affects, it diminishes the respect accorded by the state to family life. Since this is a distinction made on grounds of national
origin it constitutes discrimination contrary to art.14 unless it can be justified, which he contends it cannot be.
For the First Secretary of State, David Pannick QC, appearing with Lisa Giovannetti, who argued the case below, submits that the provision does not engage art.8: it is a provision about homelessness, not about family life. If this is wrong, he accepts that art.14 is potentially engaged, not because the statutory distinction is based on national origin (this he contests) but because it is based on immigration status and residence in the UK and so depends on some "other status". He contends that, so approached, the distinction is self-explanatory and self-justifying in the context of the overall statutory scheme; but that, in so far as it requires further justification, it is a reasonable and proportionate means to the legitimate policy ends of encouraging persons illegally here to regularise their status and discouraging benefit tourism. Finally, Mr Pannick submits that there are other statutory powers which prevent what would otherwise be an incompatibility from arising, or alternatively which remedy any fault without the need of a declaration of incompatibility.
These arguments are supported, as they were below, by David Warner for Westminster City Council. In one respect, however, Mr Warner contests the First Secretary of State's case before this court: while he too relies on the existence of other local authority powers, he disputes Mr Pannick's argument that if s.185(4) is incompatible with a Convention right, the other powers to accommodate families become duties and so preserve the United Kingdom from non-compliance.
Keith J held against the appellants: he found the provision made by s.185(4) to be unjustifiably discriminatory on grounds of nationality in its impact on family life. He accepted, as all parties before him accepted, that he could not cure the resulting incompatibility by reading the provision down, since to do so would amount to reversing what Parliament had enacted. He rejected three further arguments against the making of a declaration which are longer advanced: that the distinction, albeit on grounds of nationality, was not on the Convention ground of "national origin"; that the vice lay in subordinate regulations made under s.185(2) and not in the statute itself; and that the issue was now academic. The judge accordingly declared "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 to be disregarded when determining whether the British citizen has a priority need for accommodation, when that child is subject to immigration control".
These are the issues which we in turn have to consider. In doing so, I for my part have been assisted by the clear and cogent judgment of Keith J.
The law
Section 185 appears in Part VII of the Housing Act 1996 (which is captioned "HOMELESSNESS"). As amended, it provides:
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.
[(2A) No person who is excluded from entitlement to housing benefit by section 115 of the Immigration and Asylum Act 1996 (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.
It is also relevant to the issues before us to note some of the provisions of ss.176, 187, 189 and 193:
176. Meaning of accommodation available for occupation.
Accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with—
(a) any other person who normally resides with him as a member of his family, or
(b) any other person who might reasonably be expected to reside with him.
References in this Part to securing that accommodation is available for a person's occupation shall be construed accordingly.
187. Provision of information by Secretary of State
(1) The Secretary of State shall, at the request of a local housing authority, provide the authority with such information as they may require—
(a) as to whether a person is or has become an asylum-seeker, or a dependant of an asylum-seeker, and
(b) to enable them to determine whether such a person is eligible for assistance under this Part under section 185 (persons from abroad not eligible for housing assistance).
189. Priority need for accommodation
(1) The following have a...
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