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Cite as: [2012] HLR 2, (2012) 54 EHRR 21, [2011] ECHR 1448, 54 EHRR 21, 31 BHRC 609

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FOURTH SECTION

CASE OF BAH v. THE UNITED KINGDOM

(Application no. 56328/07)

JUDGMENT

STRASBOURG

27 September 2011

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Bah v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Vincent A. De Gaetano, judges,

and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 6 September 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 56328/07) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Sierra Leonean national, Ms Husenatu Bah (“the applicant”), on 23 November 2007.

The applicant was represented by Pierce Glynn Solicitors, a firm of lawyers practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, of the Foreign and Commonwealth Office.

The applicant alleged that she had been a victim of a violation of Article 14 of the Convention, taken in conjunction with Article 8. On 1 December 2009, the Acting President of the Chamber decided to give notice of the application to the Government.

The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations. In addition, third-party comments were received from the Equality and Human Rights Commission, which had been given leave by the Acting President of the Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). The respondent Government replied to those comments (Rule 44 § 6).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant arrived in the United Kingdom in 2000 as an asylum seeker from Sierra Leone. Although her asylum claim was refused, she was granted exceptional leave to remain and then, in 2005, indefinite leave to remain. After she obtained indefinite leave to remain, she applied to have her son Mohamed Saliou Jalloh, a Sierra Leonean national born in 1994, join her in the United Kingdom. Her son arrived in January 2007, with conditional leave to remain in the United Kingdom, the condition being that he must not have recourse to public funds. He is considered as being “subject to immigration control” within the meaning of the Asylum and Immigration Act 1996, as is the applicant (see paragraph 12 below).

At the time of her son’s arrival in the United Kingdom, the applicant was renting a room in a private home. However, her landlord was unwilling to accommodate her son as well, and informed the applicant shortly after her son’s arrival that they would have to move out by 31 March 2007. 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 pursuant to section 189 of the Housing Act 1996 (see paragraph 13 below), and would thus be provided with suitable housing, usually within the locality. Those in priority need are considered to be a class of persons to whom reasonable preference must be given in the allocation of social housing. As there is a significant shortage of social housing in London, those in priority need would generally be placed in temporary accommodation until appropriate social housing became available. In the case of the applicant, however, as her son was subject to immigration control, he was disregarded by the Council in the determination of whether the applicant was in priority need, in accordance with section 185(4) of the Housing Act 1996. On 14 March 2007 the Council decided that the applicant was not therefore in priority need and not 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 any 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 Council assisted the applicant to find a private sector tenancy in September 2007, which she accepted. The applicant and her son were not therefore at any point actually homeless. However, the private tenancy was more expensive than a social tenancy would have been, and was outside the Borough of Southwark and therefore far from the applicant’s previous employment and her son’s school. The applicant claimed that she had to give up her job after three months of commuting as she was unable to cope with the travel required, and that her son spent four hours per day travelling to and from school.

The applicant, who had remained on the waiting list for social housing in the Borough of Southwark, obtained an offer of a social tenancy of a one-bedroom flat in March 2009. She and her son therefore moved back to Southwark.

II. RELEVANT DOMESTIC LAW

1. Asylum and Immigration Act 1996

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).

2. Housing Act 1996

The Housing Act 1996, as amended by Schedule 15 of the Housing and Regeneration Act 2008, provides insofar as relevant:

“184. Inquiry into cases of homelessness or threatened homelessness

If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves –

(a) whether he is eligible for assistance, and

(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part.

...

(3A) If the authority decide that a duty is owed to the applicant under section 193(2) or 195(2) but would not have done so without having had regard to a restricted person, the notice under subsection (3) must also –

inform the applicant that their decision was reached on that basis,
include the name of the restricted person,
explain why the person is a restricted person, and
explain the effect of section 193(7AD) or (as the case may be) section 195(4A)

...

(7) In this Part “a restricted person” means a person –

(a) who is not eligible for assistance under this Part,

(b) who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996, and

(i) who does not have leave to enter or remain in the United Kingdom, or

(ii) whose leave to enter or remain in the United Kingdom is subject to a condition to maintain and accommodate himself, and any dependents, without recourse to public funds.

185. Persons from abroad not eligible for housing assistance.

A person is not eligible for assistance under this Part if he is a person from abroad who is ineligible for housing assistance.
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.

...

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) –

is homeless or threatened with homelessness, or
has a priority need for accommodation.

A person falls within this subsection if the person –

falls within a class prescribed by regulations made under subsection (2); but
is not a national of an EEA State or Switzerland.

...

189. Priority need for accommodation.

The following have priority need for accommodation –

a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
a person with whom dependent children reside or might reasonably be expected to reside;
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;
a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.

...

Duty to persons with priority need who are not homeless intentionally.

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.
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.
The authority are subject to the duty under this section until it ceases by virtue of any of the following provisions of this section.

...

(3B) In this case “a restricted case” means a case where the local housing authority would not be satisfied as mentioned in subsection (1) without having had regard to a restricted person.

...

(7AA) In a restricted case the authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the matters mentioned in subsection (7AB) –

accepts a private accommodation offer, or
refuses such an offer

(7AB) The matters are –

the possible consequence of refusal of the offer, and
that the applicant has the right to request a review of the suitability of the accommodation.”

3. Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006, SI 2006/1294

The Regulations, made by the Secretary of State in the exercise of powers conveyed by certain sections of the Housing Act 1996, referred to above, provide insofar as relevant:

“3. Persons subject to immigration control who are eligible for an allocation of housing accommodation

The following classes of persons subject to immigration control are persons who are eligible for an allocation of housing accommodation under Part 6 of the 1996 Act –

(a) Class A – a person who is recorded by the Secretary of State as a refugee within the definition in Article 1 of the Refugee Convention and who has leave to enter or remain in the United Kingdom;

(b) Class B – a person –

(i) who has exceptional leave to enter or remain in the United Kingdom granted outside the provision of the Immigration Rules; and

(ii) who is not subject to a condition requiring him to maintain and accommodate himself, and any person who is dependent on him, without recourse to public funds;

(c) Class C – a person who is habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and whose leave to enter or remain in the United Kingdom is not subject to any limitation or condition, other than a person –

(i) who has been given leave to enter or remain in the United Kingdom upon an undertaking given by his sponsor;

(ii) who has been resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland for less than five years beginning on the date of entry or the date on which his sponsor gave the undertaking in respect of him, whichever date is the later; and

(iii) whose sponsor or, where there is more than one sponsor, at least one of whose sponsors, is still alive;

...

5. Persons subject to immigration control who are eligible for housing assistance.

(1) The following classes of persons subject to immigration control are persons who are eligible for housing assistance under Part 7 of the 1996 Act –

(b) Class B – a person –

(i) who has exceptional leave to enter or remain in the United Kingdom granted outside the provision of the Immigration Rules; and

(ii) who is not subject to a condition requiring him to maintain and accommodate himself, and any person who is dependent on him, without recourse to public funds;

(i) who has been given leave to enter or remain in the United Kingdom upon an undertaking given by his sponsor;

(iii) whose sponsor or, where there is more than one sponsor, at least one of whose sponsors, is still alive.”

4. Westminster City Council v. Morris [2005] EWCA Civ 1184

On 14 October 2005, the Court of Appeal handed down its judgment in this case, which involved a woman who was a British citizen and her daughter who was subject to immigration control. The local authority had refused to treat mother and daughter as being in priority need of homelessness assistance when they became unintentionally homeless, due to the daughter’s immigration status. The Court of Appeal held that Part VII of the Housing Act 1996 and specifically sections 188, 189 and 193 were designed to protect the family lives of the homeless by ensuring that families who became unintentionally homeless were accommodated together. It therefore fell within the ambit of Article 8 of the Convention. A majority of the Court of Appeal found that the basis of distinction between Mrs Morris, on the one hand, and the parent of a child who was not subject to immigration control, on the other, was either the national origin of the child, or a combination of statuses including nationality, immigration status, settled residence and social welfare. It was not considered necessary to decide finally whether there was one sole factor on which the distinction was based; the important point was that nationality was amongst the factors. As such, very weighty or solid justification was required if the distinction was to be found to be compatible with the Convention. The Court of Appeal found that, regardless of the precise basis of the differential treatment, the justification offered by the Government – the need to preserve immigration control and to prevent “benefits tourism” – was not sufficiently weighty, nor was it a proportionate and reasonable response to the perceived problem. The discouraging of “benefits tourism” or the “over-staying” of dependent relatives was an intelligible policy goal, but was not served by legislative measures which discouraged British citizens or those with a right of abode from coming to or remaining in the United Kingdom, because they could not accommodate their dependent relatives who were also lawfully permitted to be in the United Kingdom. Section 185(4) was found not to be a proportionate or even logical response to the perceived problem. The Court of Appeal observed that it was not apparent that the Government or Parliament had considered the potentially discriminatory impact of the legislation; however, even if such impact had been considered, it could not be considered to fall within even the very wide margin of appreciation that the Government enjoyed with regard to such matters.

The Court of Appeal therefore made a declaration of incompatibility in the following terms:

“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, if both are habitually resident in the United Kingdom, to be disregarded when determining when a British citizen has a priority need for accommodation when that child is subject to immigration control.”

The case of Mrs Morris was considered by the Court of Appeal alongside that of Mr Badu, who had indefinite leave to remain in the United Kingdom but was considered by the court to have “equivalent status” to British citizenship (see paragraph 60 of the judgment). He too was excluded by section 185(4) from establishing a priority need for housing assistance because his child was subject to immigration control. Unlike Mrs Morris, however, at the time of the Court of Appeal’s judgment, he had an ongoing need for assistance, being still prospectively homeless. This situation would not be alleviated by the declaration of incompatibility, since the impugned provision would remain in force until changed by Parliament. Mr Badu’s case was therefore remitted by the Court of Appeal to the relevant local authority for reconsideration, with specific regard to whether he could be provided with accommodation under powers conferred upon the authority by other legislation.

As a result of the declaration of incompatibility in Westminster v. Morris, the Government amended the Housing Act 1996 by means of Schedule 15 to the Housing and Regeneration Act 2008, as noted above. The changes addressed the incompatibility insofar as British citizens are concerned but meant that a person such as Mr Badu or indeed the applicant in this case, with indefinite leave to remain, would still not be considered to be in priority need of housing assistance if his or her eligibility was dependent on another person who was from abroad and subject to immigration control, such as the applicant’s son. Moreover, in the case of a British citizen like Mrs Morris or an European Economic Area (EEA) or Swiss national, where the priority need resulted from a dependent child who was subject to immigration control, the local authority’s duty to provide accommodation would be satisfied by the local authority procuring an offer of a tenancy from a private landlord, whether or not the applicant chose to accept such an offer. In cases where there was a dependent child who was not subject to immigration control, by contrast, the local authority’s duty would not be discharged by procuring such an offer if the applicant chose not to accept it.

THE LAW

ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8

The applicant complained of a violation of Article 14 of the Convention read together with Article 8.

Article 8 of the Convention provides that:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.”

Article 14 provides that:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A. Admissibility

The Government submitted that the complaint was manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and therefore inadmissible. The Court, however, finds that the application is not manifestly ill-founded, nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

a) The Government’s submissions

The Government submitted that, following the declaration of incompatibility made by the Court of Appeal in Westminster v. Morris (see paragraphs 15-18 above), the relevant provisions of the Housing Act 1996 had been amended by Schedule 15 of the Housing and Regeneration Act 2008 (see paragraph 13 above).

However, the declaration of incompatibility made in Westminster v. Morris, and the legislative changes enacted as a result of that declaration, did not apply to the applicant who was not a British citizen, but only had indefinite leave to remain in the United Kingdom and was subject to immigration control. Although the applicant was eligible for housing assistance pursuant to Regulation 5(1)(c) of the Regulations cited at paragraph 14 above, she had been and still was unable, both prior to and after the legislative amendments, to rely on her son who was also subject to immigration control to convey priority need for accommodation.

On the facts of the applicant’s case, the Government observed that she would not have been automatically entitled to social housing even had she been accepted as having a priority need. No individual had an entitlement to social housing under the Housing Act 1996. The applicant, if considered to be in priority need, would have fallen into a class of persons entitled to be given reasonable preference for an allocation of social housing. However, given the scarcity of such housing in London, she would most likely have been granted temporary accommodation until an offer of social housing could be made. The Government further observed that at the time the applicant sought assistance, those identified as homeless spent on average 21 months in temporary accommodation, which was frequently property leased by the local authority from private landlords and then sub let to tenants and could therefore be more expensive to tenants than even the private sector tenancy obtained by the applicant, given the costs of leasing the property. Given that the applicant obtained an offer of social housing in March 2009, the Government submitted that she spent a similar amount of time in privately leased accommodation as she would have done had she been granted temporary accommodation and that it is possible that she would have paid a higher rent in such temporary accommodation than she had had to pay in the private accommodation she found with the assistance of her local authority. The Government emphasised the fact that the applicant and her son were never actually homeless and that there was other legislation which required local authorities to provide accommodation or other assistance to children who were in need. In the event of the applicant’s son actually becoming homeless, then, the Government argued that there were means other than section 193 of the Housing Act 1996 by which he could have been provided with housing.

As regards the applicant’s complaint, the Government accepted that its subject matter fell within the ambit of Article 8. However, the Government contended that the differential treatment accorded to the applicant as a result of her son’s immigration status did not fall under Article 14, because the ground for differentiating was not his nationality or national origin but his immigration status, which was not an “other status” within the terms of Article 14. Immigration status being an entirely legal status and not a “personal characteristic”, the Government maintained that there was no discrimination falling foul of Article 14.

In the alternative, and if the different treatment was found to be discrimination within the meaning of Article 14, the Government submitted that since the ground of discrimination was immigration status rather than nationality, significantly less justification was required. This was because discrimination based exclusively on nationality was plainly suspect and required close scrutiny, whereas discrimination based on immigration status flowed from the State’s need to control and monitor immigration. Given that the case concerned the allocation of scarce resources, namely social housing, the Government contended that they enjoyed a wide margin of appreciation and that Parliament was best placed to reach policy decisions dealing with the allocation.

The justification offered by the Government for the differential treatment imposed by the legislation was the need to allocate scarce resources and the preference in so allocating for those with the greatest level of connection to the United Kingdom, which the Government submitted was possessed by British and EEA citizens rather than those with indefinite leave to remain in the United Kingdom. The Government took the view that it was wholly reasonable and proportionate for the State to limit the provision of a scarce and expensive resource such as housing to those whose priority need flowed from their and their dependants’ fixed and permanent rights to be present in the United Kingdom. It would have been unacceptable, according to the Government, if the applicant had gained priority status by reason of her son, whose permission to be in the United Kingdom was expressly conditional upon his having no recourse to public funds. The Government contended that their policy of differential treatment in the allocation of housing, dependent upon a person’s immigration status, was plainly proportionate.

The Government observed that the applicant’s comparison between EEA nationals and those with indefinite leave to remain was irrelevant, since it was justifiable to treat EEA nationals more favourably than others due to the nature of the “special legal order” formed by the European Union and the special status thereby conferred upon its nationals. As to British citizens, it was fair to assume that, as a general rule, they had a greater connection to the United Kingdom than those with indefinite leave to remain.