Re Islam (A.P.)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilberforce,Lord Fraser of Tullybelton,Lord Russell of Killowen,Lord Lowry,Lord Bridge of Harwich |
| Judgment Date | 19 November 1981 |
| Judgment citation (vLex) | [1981] UKHL J1119-1 |
| Date | 19 November 1981 |
| Court | House of Lords |
[1981] UKHL J1119-1
Lord Wilberforce
Lord Fraser of Tullybelton
Lord Russell of Killowen
Lord Lowry
Lord Bridge of Harwich
House of Lords
My Lords,
This case also arises under the Housing (Homeless Persons) Act 1977. I have referred to the relevant provisions of the Act in dealing with the appeal in Din v. Borough of Wandsworth and I shall not repeat them. The facts are as follows: it is important to appreciate their particularity.
Mr. Taffazul Islam came to this country from Bangladesh (then East Pakistan) in 1965. He obtained employment, and from 1965 until August 1979 lived at 5 Cowley Mill Road, Uxbridge, with the right only to occupy a single room. This residence, and his place of work, were within the Borough of Hillingdon, the respondents. This Borough, as is well known, includes Heathrow Airport, through which a number of persons arrive in this country who have no accommodation, so presenting great problems to the respondents, but that is quite coincidental to the present appeal. The appellant's is not an "airport" case: it could have arisen in the area of any other local authority.
In 1968 the appellant went to Bangladesh and married: his wife remained in that country, living with the appellant's parents. On four subsequent visits by the appellant his wife conceived the four existing children of the family: they all lived with the appellant's parents.
In 1974 application was made for entry clearance for the appellant's wife and the then two children to come to this country to live with the appellant. It is important to appreciate that, since the appellant came to this country before 1973, this application could be made and entertained without the necessity of showing that accommodation here was available —as must be shown in post-1973 cases.
In August 1979 the appellant moved from 5 Cowley Mill Road to 120 Cowley Mill Road where he had the right to share one room with one other man.
Late in 1979 or early in 1980 the appellant's wife was issued with a Bangladeshi passport for herself and her four children and soon afterwards it was endorsed with an entry certificate: this was only valid for presentation within six months. In April 1980 the appellant heard that his wife and children were arriving in this country immediately. The appellant never had any accommodation in this country which could qualify as accommodation within the meaning of section 1 of the Act. The family spent one night at 5 Cowley Mill Road and then some time at 120 Cowley Mill Road, until in September 1980 they were summarily evicted. The appellant then applied to the respondents for accommodation under the Act as a homeless person.
On 2nd October 1980 the respondents' homeless families panel resolved as follows:
"(1) that the applicant be considered homeless, but not in priority need, as his dependent children might not reasonably be expected to reside with him having lived apart for the past seven years:
(2) that, even if he were in priority need, the applicant be considered to have become homeless intentionally, having deliberately arranged for his wife and children to leave accommodation which it would have been reasonable for them to continue to occupy;
(3) that accommodation continue to be secured for the applicant and his family up to and including 16th October 1980."
The appellant applied for an order for judicial review. The Divisional Court, after rejecting ground (1) above (and this part of their decision has not been appealed against) held that in bringing his wife and family to England from Bangladesh without ensuring that there was permanent accommodation available to them, the appellant rendered himself, and them also, homeless "intentionally". The appellant appealed to the Court of Appeal, having obtained leave, to contend that he was not intentionally homeless because he had not left accommodation available for his occupation within the meaning of the Act.
The Court of Appeal by majority (Lord Denning M.R. and Sir Denys Buckley) Ackner L.J. dissenting, dismissed the appeal, holding that the appellant had become homeless intentionally, but the majority differed in their reasons for so holding. I regret that I am unable to agree with either of the reasons given. Lord Denning M.R. decided the case on the basis that the appellant was occupying "available" accommodation in Bangladesh. But this approach—which might be possible in some cases— is not supported by the facts. There is no finding, or evidence, that the Bangladesh accommodation was ever "available" to the applicant himself, nor that he was ever in occupation of it.
Sir Denys Buckley disagreed with this approach but held that by bringing his family here the appellant deliberately did something which had the effect of rendering the shared room at 120 Cowley Mill Road accommodation no longer available for his occupation. This, however, with respect, overlooked the provisions of section 16 which was to be read into section 17. The room at 120 Cowley Mill Road was never accommodation (within section 1) available for occupation by him and his family—so section 17 could not be applied to it. Sir Denys Buckley's alternative ground was that the accommodation in Uxbridge and Bangladesh taken together could constitute "available accommodation" occupied by the appellant. But I do not think that rooms in two separate continents can be combined in this way.
On the other hand, not without misgiving, but without any doubt, I have reached the conclusion that the judgment of Ackner L.J. is correct and I am glad to adopt his reasons as my own. Put very briefly, the case is four square within the Act: the appellant was "homeless": he was entitled to priority: he never had any "available accommodation" within the meaning of section 16 which he could give up: section 17 could not be applied to his case. There is no answer to his claim.
While the result in this particular case may be considered acceptable, in view of the appellant's long residence in this country and his efforts to unite his family here, and I entirely accept that immigrants as such are not intended to be excluded from the Act, I share the learned Lord Justice's misgiving whether, in relation to persons coming from overseas (whether the EEC or otherwise), or indeed to some persons moving from one part of this country to another, the Act is as well considered as it is undoubtedly well intentioned.
The difficulties of the Act are certainly diminished to some extent by the decision of the Court of Appeal in ( De Falco v. Crawley Borough Council 1980 1 AER 913) where a whole family was held to have deliberately left accommodation which was available to them in Italy, which, having regard to the housing situation in Crawley, it was reasonable for them to have continued to occupy. But many foreseeable difficulties remain. It would serve no purpose to anticipate them here, but I venture to suggest the need for some reconsideration of the Act.
I would allow the appeal, and grant declarations as sought by the notice of motion dated 21st October 1980.
My Lords,
In this case I have had the advantage of reading in draft the speeches prepared by my noble and learned friends. Lord Wilberforce and Lord Lowry. I agree with them, and for the reasons stated in them I would allow the appeal.
My Lords,
For the reasons contained in the speeches of my noble and learned friends, Lords Wilberforce and Lowry, I would allow this appeal.
My Lords,
The proceedings which are the subject of this appeal took the form of an application by the appellant under Order 53 for the judicial review of a decision dated 2nd October 1980 of the homeless families panel ("the panel") of the London Borough of Hillingdon ("the respondents") pursuant to the Housing (Homeless Persons) Act 1977 ("the Act") and arose in the following circumstances.
The appellant, aged 23, came to England from Bangladesh (then East Pakistan) in 1965 and thereafter has lived and worked in Hillingdon. He has returned at intervals to Bangladesh and married there in 1968. He has revisited Bangladesh five times since then. By 1980 the appellant and his wife had four children and after the marriage she and, in course of time, the children lived with his parents in Bangladesh. The appellant has a Bangladesh passport issued in August 1974 in which his "permanent address" in Bangladesh" and his "present address" are shown as that of his parents. He was, however, ordinarily resident in the United Kingdom and "settled" there "with indefinite leave to remain" under the provisions of the Immigration Act 1971.
The appellant applied in 1974 for a visa to permit his wife and children to come to the United Kingdom and had an entry certificate endorsed on his passport. In the same year his wife applied for entry clearance for herself and her children, then two in number, to enter the United Kingdom, but it was only in February, 1980 that an entry visa, valid for six months, was endorsed on her passport to entitle her and the children, now four in number, to join the appellant there, as being the dependants of a person already settled in the United Kingdom. Because the appellant was settled here before 1973, the immigration rules restricting the admission of dependants for settlement did not apply, and so he did not have to show that he could support or accommodate them.
The appellant had for fourteen years lived in a room at 5, Cowley Mill Road, Uxbridge and had in August 1979 moved to the house of a Mr. Rahman at 120, Cowley Mill Road, where he obtained a share of a room. As soon as the family had been granted clearance, he arranged for them to come to England and took an extra room from Mr. Rahman. Exactly what arrangements they then made is...
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