R v Westminster City Council, ex parte Castelli ; R v Same, ex parte Tristan-Garcia
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Court | Court of Appeal (Civil Division) |
MR ROGER HENDERSON, QC
COURT OF APPEAL
21 FEBRUARY 1996
STAUGHTON, SWINTON THOMAS AND EVANS, L JJ
Housing – homelessness – citizens of European Union countries – lawfully entering United Kingdom – duties of local authorities as to provision of accommodation.
The applicants were citizens of the European Union. They entered the United Kingdom lawfully but without leave on the basis that they were "qualified persons" within the meaning of Article 6 of the Immigration (European Economic Area) Order 1994. Their status as "qualified persons" depended on the fact that they were persons seeking employment and were therefore "workers" for the purposes of Article 48 of the Treaty of Rome 1957 as interpreted by R v Immigration Appeal Tribunal, ex parte Antonissen [1991–2] ECR 1–745. They applied to Westminster City Council for temporary accommodation under s 63 of the Housing Act 1985. At the time of their applications neither applicant was working nor seeking work and they had, therefore, ceased to be "qualified persons". The local authority decided that they owed the applicants no duty because they were no longer lawfully present in the United Kingdom and consequently it followed that they were outside the scope of s 63 of the 1985 Act.
The applicants sought judicial review. Their applications were dismissed and they appealed to the Court of Appeal.
Held – allowing the appeals: Although the immigration authorities could seek the applicants' removal, unless and until they did so the applicants' presence in the United Kingdom was not unlawful and therefore the local authority had erred in law and their decisions would be quashed.
Queen's Bench Division
5 October 1995
Statutory provisions referred to:European Communities Act 1972, s 2.
European Communities (Amendment) Act 1993.
Housing Act 1985, ss 59, 62, 63, 64 and 71.
Immigration Act 1971, ss 1, 3 and 24.
Immigration Act 1988, s 7.
Immigration (European Economic Area) Order 1994, Articles 1, 3, 4, 6 and 60.
Treaty of Rome, Articles 1, 8, 48 and 52.
Cases referred to in judgment:Belgian State v Humbel [1988–8] ECR 5365.
Cowan v Tresor Public [1990] 2 CMLR 613.
Luisi & Carbone v Ministero del Tesoro [1984–1] ECR 377.
R v Bristol City Council, ex parte Browne [1979] 1 WLR 1437.
R v Cardiff City Council, ex parte Barry 22 HLR 261.
R v Hillingdon London Borough Council, ex parte Streeting [1979] 1 WLR 1425.
R v Immigration Appeal Tribunal, ex parte Antonissen [1991–2] ECR 1-745.
R v Kensington and Chelsea Royal London Borough Council, ex parte Grillo[1996] 2 FCR 56.
R v Northavon District Council, ex parte Palmer [1996] 8 Admin LR 16.
R v Oldham Metropolitan Borough Council, ex parte Garlick[1993] 2 FCR 133.
R v Secretary of State for the Environment, ex parte Tower Hamlets London Borough Council [1993] QB 632.
R v Secretary of State for the Home Department, ex parte Adams [1995] 2 All ER (EC) 177.
R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74.
R v Secretary of State for the Home Department, ex parte Phull (unreported).
R v Secretary of State for the Home Department, ex parte Vitale 19 January 1996 (unreported).
R v Secretary of State for Social Services, ex parte Urbanek and Getachew (1995) 7 Admin LR 781.
Union Nationale des Entrainers et Cadres Techniques Professionels du Football (Unectef) v Heylens [1987] ECR 4097.
Jan Luba for the applicants.
Clive Hugh Jones for the local authority.
MR ROGER HENDERSON, QC.Central to the cases of Mr Castelli and Mr Tristan-Garcia, who are nationals of Italy and Spain respectively, are the questions whether the respondent local housing authority, the Westminster City Council, had any power to make decisions about their rights to reside in this country, what were those rights when the decisions were made and whether the respondent discharged its housing responsibilities according to law. It is submitted by the applicants that their status was and is a matter to be decided by other governmental authorities and not by the respondent. They further contend that in any event the respondent owed them duties under Part III of the Housing Act 1985 ("the Act") which the respondent has signally failed to discharge. The respondent has decided in each case that it owed no housing duty at all to either of the applicants and contends
that at least the final decisions were correct in law.
Having set the scene, it is appropriate to consider the facts in the two cases. It is convenient to take them in the sequence in which they were argued. I was invited at the outset to allow both cases to be called on together and, since there are similar facts and common issues of law, it is convenient with the agreement of both parties to deliver one judgment relating to the two cases. For fairness and convenience sake, I will from time to time treat submissions of law made on behalf of one applicant as having been made on behalf of both.
Gaudenzio Castelli is Italian. He was born in Italy in July 1960. He speaks very little English. He is unmarried. He is vulnerable and, if housing duties are owed to him, he is in priority need of accommodation under Part III of the Housing Act 1985 ("the Act") because he is ill. He is HIV positive, suffers from some symptoms of the condition and has been described by the Middlesex Hospital, to which he was admitted in the spring of this year for suspected tuberculosis and psychiatric difficulties, as suffering from increasingly poor health. These matters obtained when the respondent's decisions were made and are undisputed. They became known to the respondent after the applicant turned to the respondent for housing assistance at the beginning of February 1995.
Mr Castelli had arrived from Bergamo in Italy in March 1994, having formerly been involved in a flower business. Being an Italian, he required no permission to enter the United Kingdom. He left what seems to have been a settled home, but nothing turns on that because in the event the respondent decided, before it ever came to consider the question of whether the applicant was intentionally homeless, that it owed no duty under the Act to the applicant. I mention it, because it should not be thought that the court is unmindful of the potential defence of local housing authorities to unmeritorious claims, where a homeless person has deliberately left settled accommodation. If the respondent has at any time to reconsider the applicant's homelessness, it will be for the respondent to consider and to decide the relevant facts which have not been developed in evidence or addressed before me.
Upon arrival the applicant was self-sufficient in financial terms. He had some £3,000 with him and in interview in May 1995 he told the respondent that he had "needed a break, wanted to put his life together and had in mind setting up his own plastic recycling business in London". He told the respondent that being frustrated by his inability to establish the business he became involved in drug-taking and had no clear memory of the addresses where he had stayed, having first arranged to live with a friend in Camden Town. At his first interview in February 1995 he said that he spent much of his time squatting. Nowhere has it been suggested that he came to this country to obtain medical services. In interview in June 1995 he is recorded as having said that he believed that £3,000 was enough to support him until he found work but that the money ran out in December 1994 and "he was forced to live off the charity of his friends and the church". He told the respondent in the same interview that his health had deteriorated since coming to the United Kingdom and that he had been in hospital several times.
When he turned to the respondent for help in February 1995, a principal homelessness officer of the respondent decided that the respondent owed the applicant a duty under s 63 of the Act and secured temporary bed and breakfast
accommodation for him pending medical assessment. For reasons to which I will come, I consider that the respondent was duty-bound to behave as it did. Section 63 is headed "Interim Duty to Accommodate in Case of Apparent Priority Need" and provides:
"(1) If the local housing authority have reason to believe that an applicant may be homeless and have a priority need, they shall secure that accommodation is made available for his occupation pending a decision as a result of their inquiries under s.62."
Section 62 is headed "Inquiry into Cases of Possible Homelessness or Threatened Homelessness". It provides:
"(1) If a person (`an applicant') applies to a local housing authority for accommodation, or for assistance in obtaining accommodation, and the authority have reason to believe that he may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves as to whether he is homeless or threatened with homelessness.
(2) If they are so satisfied, they shall make any further inquiries necessary to satisfy themselves as to –
(a) whether he has a priority need, and
(b) whether he became homeless or threatened with homelessness intentionally;
and if they think fit they may also make inquiries as to whether he has a local connexion with the district of another local housing authority in England, Wales or Scotland."
On behalf of the respondent it is now said that there was never an interim duty to secure accommodation for the applicant, nor a duty to make the relevant inquiries because he was and is a person to whom the Part III duties were and are not owed. As respects the existence of the interim duties, I disagree, but for reasons to which I come those duties were owed in public law alone and not ad hominem.
As indicated by the guidance issued by the Secretary of State, to which the respondent had to have regard by virtue of s 71 of the Act, the medical assessment was made with appropriate and commendable promptness. The advice to the respondent at that time was that the applicant was not...
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