1 December 2009
by Husenatu BAH
against the United Kingdom
lodged on 23 November 2007
STATEMENT OF FACTS
The applicant, Ms Husenatu Bah, is a Sierra Leonean national who was born in 1974 and lives in London. She is represented before the Court by Ms P Glynn, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, a single mother with one son, arrived in the United Kingdom and was granted indefinite leave to remain. She was later joined by her son Mohamed Saliou Jalloh, a Sierra Leonean national. Mohamed was granted conditional leave to remain in the United Kingdom, the condition being that he must not have recourse to public funds. He is therefore considered as being “subject to immigration control” within the meaning of the Asylum and Immigration Act 1996.
At the time of her son’s arrival in the United Kingdom, the applicant was living with a friend. However, this friend subsequently informed her that he was no longer able to accommodate her and her son due to lack of space. The applicant applied to the London Borough of Southwark Council for assistance on 9 February 2007, on the basis that she had become unintentionally homeless. An unintentionally homeless person with a minor child would ordinarily qualify as being in priority need, and would thus be provided with suitable housing, usually within the locality. However, as the applicant’s son is subject to immigration control, he was disregarded by the Council in the determination of whether the applicant was in priority need. On 14 March 2007 the Council decided that the applicant was not therefore in priority need and entitled to housing.
The applicant requested a review of this decision, which was carried out by a senior officer, who reiterated that persons subject to immigration control are not eligible for housing assistance, and that persons who are not eligible for housing assistance shall be disregarded when determining whether another person has a priority need for accommodation. As the applicant’s son was not eligible, the applicant did not have a priority need. Consideration was also given to the question of whether the applicant was vulnerable for any other reason; however, it was found that the applicant was not hindered in the performance of everyday tasks by her medical problems and that she was no less able to fend for herself than the average person. There was therefore no special reason to find that she was entitled to homelessness assistance due to vulnerability. On 24 May 2007, the original decision was upheld.
The applicant was granted assistance to obtain an offer of a private sector tenancy in September 2007, which she accepted. The tenancy is considerably more expensive than the social housing to which she would have been entitled if she qualified as being in priority need. It is also far from the applicant’s previous employment and her son’s school, meaning that she has been unable to continue in the same employment, and her son spends four hours per day travelling to and from school.
B. Relevant domestic law
1. Relevant Domestic Legislation
Part VII of the Housing Act 1995 deals with homelessness. Sections 185, 189 and 193 therein, as amended, provide:
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 M1 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 1999 (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.
189. Priority need for accommodation
(1) The following have a priority need for accommodation—
(a) a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
(b) a person with whom dependent children reside or might reasonably be expected to reside;
(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.
(2) The Secretary of State may by order—
(a) specify further descriptions of persons as having a priority need for accommodation, and
(b) amend or repeal any part of subsection (1).
(3) Before making such an order the Secretary of State shall consult such associations representing relevant authorities, and such other persons, as he considers appropriate.
(4) No such order shall be made unless a draft of it has been approved by resolution of each House of Parliament.
193. (1) This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.
This section has effect subject to section 197 (duty where other suitable accommodation available).
(2) Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.
[(3) The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section.]
[(3A) The authority shall, on becoming subject to the duty under this section, give the applicant a copy of the statement included in their allocation scheme by virtue of section 167(1A)(policy on offering choice to people allocated housing accommodation under Part 6).]
(5) The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal [and of his right to request a review of the suitability of the accommodation], refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.
(6) The local housing authority shall cease to be subject to the duty under this section if the applicant—
(a) ceases to be eligible for assistance,
(b) becomes homeless intentionally from the accommodation made available for his occupation,
(c) accepts an offer of accommodation under Part VI (allocation of housing), or
[(cc) accepts an offer of an assured tenancy (other than an assured shorthold tenancy) from a private landlord,]
(d) otherwise voluntarily ceases to occupy as his only or principal home the accommodation made available for his occupation.
[(7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6.
(7A) An offer of accommodation under Part 6 is a final offer for the purposes of subsection (7) if it is made in writing and states that it is a final offer for the purposes of subsection (7).]
[(7B) The authority shall also cease to be subject to the duty under this section if the applicant accepts a qualifying offer of an assured shorthold tenancy which is made by a private landlord in relation to any accommodation which is, or may become, available for the applicant’s occupation.
(7C) The applicant is free to reject a qualifying offer without affecting the duty owed to him under this section by the authority.
(7D) For the purposes of subsection (7B) an offer of an assured shorthold tenancy is a qualifying offer if—
(a) it is made, with the approval of the authority, in pursuance of arrangements made by the authority with the landlord with a view to bringing the authority’s duty under this section to an end;
(b) the tenancy being offered is a fixed term tenancy (within the meaning of Part 1 of the Housing Act 1988 (c. 50)); and
(c) it is accompanied by a statement in writing which states the term of the tenancy being offered and explains in ordinary language that—
(i) there is no obligation to accept the offer, but
(ii) if the offer is accepted the local housing authority will cease to be subject to the duty under this section in relation to the applicant.
(7E) An acceptance of a qualifying offer is only effective for the purposes of subsection (7B) if the applicant signs a statement acknowledging that he has understood the statement mentioned in subsection (7D).
(7F) The local housing authority shall not—
(a) make a final offer of accommodation under Part 6 for the purposes of subsection (7); or
(b) approve an offer of an assured shorthold tenancy for the purposes of subsection (7B),
unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer.]
(8) For the purposes of [subsection (7F)] an applicant may reasonably be expected to accept an offer...even though he is under contractual or other obligations in respect of his existing accommodation, provided he is able to bring those obligations to an end before he is required to take up the offer.
(9) A person who ceases to be owed the duty under this section may make a fresh application to the authority for accommodation or assistance in obtaining accommodation.
Section 9 sub-sections 1 and 2 of the Asylum and Immigration Act 1996 provide:
9. Entitlement to housing accommodation and assistance
(1) Each housing authority shall secure that, so far as practicable, no tenancy of, or licence to occupy, housing accommodation provided under the accommodation Part is granted to a person subject to immigration control unless he is of a class specified in an order made by the Secretary of State.
(2) A person subject to immigration control—
(a) shall not be eligible for accommodation or assistance under the homelessness Part; and
(b) shall be disregarded in determining, for the purposes of that Part, whether another person—
(i) is homeless or is threatened with homelessness; or
(ii) has a priority need for accommodation,
unless he is of a class specified in an order made by the Secretary of State...
Section 13(2) of the same act defines “a person subject to immigration control” as being a person who under the Immigration Act 1971 requires leave to enter or remain in the United Kingdom (whether or not such permission has been given.)
Section 4 of the Human Rights Act 1998 provides that:
4. Declarations of incompatibility
1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied—
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility.
(5) In this section “court” means—
(a) the House of Lords;
(b) the Judicial Committee of the Privy Council;
(c) the Courts-Martial Appeal Court;
(d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session;
(e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal.
(6) A declaration under this section (“a declaration of incompatibility”)—
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.
2. Westminster v. Morris [EWCA] Civ 1184
On 14 October 2005, the Court of Appeal made a declaration of incompatibility in respect of section 185(4) of the Housing Act 1996, stating that it was,
“incompatible with Article 14 of the Convention to the extent that it requires a dependent child of a British citizen, if both are habitually resident in the United Kingdom, to be disregarded when determining whether the British citizen has a priority need for accommodation, when that child is subject to immigration control.”
The applicant complains that she has been a victim of unjustified discrimination under Article 14 in conjunction with Article 8, because the decision to treat her as not being in priority need of accommodation was based on her son’s national origin.
QUESTION TO THE PARTIES