England and Wales High Court (Administrative Court) Decisions

1. MR RICHARDS: These two applications for judicial review were heard together and raise the identical issue of law, namely the effect of section 9(2) of the Asylum and Immigration Act 1996 upon an application for housing made to a local authority before the date when the section came into force (19 August 1996).

2. In brief, section 9(2), in conjunction with an Order made by the Secretary of State, denies the benefit of the homelessness provisions of the Housing Act 1985 to asylum seekers who arrived in this country after 5 February 1996 and did not claim asylum upon arrival. Each of the present applicants arrived in this country after 5 February 1996 and neither claimed asylum on arrival. However, after arrival and before 19 August 1996 each of them had applied for accommodation to a local housing authority. In each case the local authority had accepted that the applicant might be homeless and have a priority need and had therefore put in hand further inquiries pursuant to section 62 of the 1985 Act and had provided accommodation in the interim pursuant to section 63. No final decision had been made on their applications by 19 August 1996. On that date, each local authority decided immediately to withdraw accommodation and discontinue enquiries on the basis that any eligibility under the homelessness provisions had ceased. By subsequent decisions each of the applicants was given a short period of grace, for reasons to be explained later, and it is the substitute decisions that are now challenged by way of amendment to the notices of application (pursuant to leave granted by me at the hearing). But the essential question is whether the local authorities were right in their view that the applicants’ eligibility under the homelessness provisions ceased at the time when section 9(2) came into force.

3. It is common ground that this very issue has already been decided adversely to the applicants by Carnwath J in R v. Secretary of State for the Environment, ex parte Shelter and The Refugee Council (23 August 1996, not yet reported). The applicants, however, mount a frontal challenge to that decision. They submit that it was wrong and should not be followed.

4. That leads me at once to consider the circumstances in which it would be open to me not to follow Carnwath J’s decision. Mr Luba, for the applicants, drew my attention to the judgment of Sir Louis Blom-Cooper QC in R v. Hertsmere Borough Council, ex p. Woolgar (1995) 27 HLR 703 in which the position was summarised as follows:

5. Those observations are consistent with the general approach laid down in R v. Greater Manchester Coroner, ex p. Tal [1985] 1 QB 67 at 81A-D.

6. In the present case it is not suggested that Carnwath J's decision in ex p. Shelter was reached per incuriam. I must therefore follow his decision unless convinced that it was wrong. The threshold of conviction must be all the higher when I am sitting as a deputy judge and am asked not to follow a decision of a High Court judge. Plainly Mr Luba has a very heavy burden to discharge. Equally plainly I must form my own judgment on the points advanced and cannot simply rely on Carnwath J’s decision. Moreover I have borne in mind that my judgment as to the strength of the points advanced will be highly material to any question of leave to appeal even if Mr Luba fails to convince me that the decision in ex p. Shelter was wrong. Leave to appeal was refused in ex p. Shelter , in part because the judge had reached a reasonably clear view and in part because an appeal would have to displace other matters in the legal vacation and it was therefore thought appropriate to leave it to the Court of Appeal to decide whether to entertain an appeal. In the event an appeal was not pursued by the applicants in that case.

7. The statutory provisions and the background to them are set out in some detail in Carnwath J's judgment and need not be repeated in full. It is, however, helpful to set out the structure of the homelessness provisions contained in Part III of the 1985 Act, as well as the main relevant provisions of the 1996 Act.

8. As regards the 1985 Act, Carnwath J refers to the summary by the Master of the Rolls in R v. Wandsworth Borough Council, ex p. Mansoor [1996] 3 WLR 283, which he then condenses yet further:

9. One has, therefore, three different types of substantive duty and they are accompanied by other obligations, both procedural and substantive obligations..." (tr. 7-8).

10. I turn to consider the key provisions of the 1996 Act. Section 9(2) provides as follows:

11. A person subject to immigration control is, by section 13(2), "a person who under the 1971 Act requires leave to enter or remain in the United Kingdom (whether or not such leave has been given)". That includes asylum seekers. Such persons are not eligible for accommodation or assistance under “the homelessness Part”, i.e. Part III of the 1985 Act (see section 9(4)), unless they are of a class specified in an order made by the Secretary of State. Article 4 of the Housing Accommodation and Homelessness (Persons subject to Immigration Control) Order 1996, SI 1996 No. 1982, specifies a number of classes under section 9(2). Class E includes persons who have made a claim for asylum which is recorded by the Secretary of State as having been made on arrival in the United Kingdom and which has not been recorded by the Secretary of State as having been determined or abandoned. As I have already stated, neither of the applicants falls within that description or otherwise falls within a class specified in the Order.

12. The case for the applicants is that section 9(2) of the 1996 Act on its true construction can have no effect upon an application made under Part III of the 1985 Act prior to its coming into force, because (1) on its plain words section 9(2) has only prospective effect on future applicants; or, in the alternative, (2) on its plain words it operates with immediate effect on an extant application under Part III and thus operates by implied repeal of the scope of Part III, and by section 16 of the Interpretation Act 1978 such an implied repeal cannot affect rights or benefits accrued before the section came into force; or, in the alternative, (3) the provision is ambiguous, in which case the common law ensures that it is not applied so as to have retrospective effect.

13. In developing his submissions on the first point, Mr Luba sought to contrast the prospective wording of section 9(2), "shall not be eligible", with the use of "is" in section 9(1). The suggested contrast is to my mind non-existent if section 9(1) is read as a whole: it provides that housing authorities "shall secure" that no tenancy or licence "is granted" to certain persons. Each provision is of course prospective in the sense that it looks to the time after the section comes into force and lays down the regime applicable at that time, e.g. what housing authorities are to do and who is to be eligible for accommodation at that time. But that is an entirely normal form of prospectivity in the case of statutory provisions, and the language used to achieve it in section 9(2) is likewise entirely normal. So the linguistic point seems to me to get the applicants nowhere.

14. Mr Luba went on to contend that section 9(2) introduced a new concept of "eligibility" as from the date when the section came into force. That concept must, he contended, be directed towards future applications, i.e. applications made after the date when the section came into force. That is because eligibility falls to be tested at the time when an applicant seeks access to that for which he is eligible, which in this context is the time when application is made for accommodation under the homelessness provisions of the 1985 Act. If that were not so, he asked rhetorically, where would the duty arise to accommodate applicants while inquiries were being carried out?

15. The proposition central to those contentions is that, under the scheme of Part III of the 1985 Act, eligibility is to be determined once and for all at the date of the initial application for accommodation; so that an applicant who satisfied the relevant statutory conditions at the time when he applied is entitled to a favourable decision even if the conditions have since been changed and he does not satisfy those changed conditions. Carnwath J rejected that approach towards Part III and I agree with him. In the passage that I have already cited from his judgment, Carnwath J points to the different stages that exist under Part III, each involving different duties and associated rights: application, duty of inquiry, initial view as to homeless and priority need (which may give rise to the interim housing duty), completion of inquiries and final decision (which may give rise to the temporary housing duty or the full housing duty). The statutory provisions governing each stage are expressed in the present tense and there is nothing to suggest that the determinative date is in each case the date of the application. Under section 62(1), the duty to make inquiries arises if a person applies for accommodation and the authority "have reason to believe that he may be homeless or threatened with homelessness". Under section 63(1), the interim duty to accommodate applicants while inquiries are being carried out arises if the authority "have reason to believe that an applicant may be homeless and have a priority need". Under section 64, the authority's duty is to notify the applicant of its decision as to whether "he is homeless or threatened with homelessness" and "he has a priority need". The past tense is used in relation to the decision on intentional homelessness ("whether he became homeless or threatened with homelessness intentionally") because the question is necessarily historical; but that serves, if anything, to emphasise the fact that the other conditions are all expressed in the present tense. So too under section 65 the housing duties arise where the authority is satisfied that "he is homeless", "he has a priority need", etc.

16. Mr Luba suggested that the draughtsman may have proceeded on the assumption that there would be no appreciable lapse of time between application and final decision. The fact that provision is made for inquiries to be carried out and for accommodation to be provided in the interim casts doubt on that suggestion. But in any event the legislative scheme admits of the possibility of a lapse of time between the various stages and provides at each stage for matters to be looked at in the present tense rather than by reference back to the time of the application.

17. I should also mention that I had cited to me R v. Newham London Borough Council, ex p. Smith (The Times, 11 April 1996), a case in which Sir Louis Blom-Cooper QC, sitting as a deputy judge of the High Court, held that the relevant date for considering whether an applicant had a "local connection" with the district of a housing authority for the purposes of Part III was the date of the application. Unfortunately a transcript was not available to me and the report in The Times does not reveal the underlying reasoning. I can well understand that it would be contrary to the scheme of Part III to allow a person to acquire a local connection by reason of being given temporary accommodation by an authority pursuant to its interim duty under section 63. Such a conclusion would not, however, entail the more general conclusion that the date of the application is the material date for other purposes. I do not therefore feel compelled by the decision in ex p. Smith to alter the views that I have otherwise reached on that issue.

18. It therefore seems to me that the final decision on homelessness is one to be taken after inquiries have been made and in the light of the information available to the authority as to the position of the applicant at the time when the decision is taken. If the authority's inquiries show that the applicant does not at that time satisfy the statutory conditions, then the authority is entitled to make its decision on that basis and to notify the applicant accordingly. That is the position even if the applicant did satisfy the statutory conditions at the date of the initial application. Such a view accords with the wording of the Act and is consistent with the statutory policy. An applicant who satisfied the relevant conditions at the time of his application should have benefited from the protection afforded by the interim duty. If he no longer satisfies the relevant conditions at the time when the final decision comes to be taken, there is no evident reason why Parliament should have intended him to gain the benefit of the temporary or full housing duty. To put the point another way, one would expect the regime to be flexible enough to cope with changes in circumstances rather than to be governed rigidly by the state of affairs existing at the moment when the application was made.

19. Coming back to section 9(2) of the 1996 Act in the light of those considerations, the effect was that persons of the specified description ceased to be eligible for accommodation under Part III from the date when the subsection came into force. I agree with Carnwath J (at tr. 16B-C) that "eligibility" connotes qualification for a right or benefit, though I am less certain about the contrast that he seems to draw between "eligibility" and the concept of "entitlement" found in sections 10 and 11 of the 1996 Act. Thus, from 19 August 1996 persons of the specified description ceased to qualify for accommodation under Part III. For the reasons that I have given, they ceased to qualify even if their applications for such accommodation had been made before 19 August 1996. If a local authority had not yet reached a final decision on their applications, as from 19 August 1996 it was entitled to reach a decision that they were not eligible and to notify them accordingly. Part III does not shelter existing applicants from the impact of section 9(2) merely because they made their applications and thereby came within the "protection" of the 1985 Act prior to 19 August 1996. I therefore reject the submission that Carnwath J was wrong to hold:

20. In reaching his conclusion, Carnwath J referred in passing to, but did not place reliance on, certain transitional provisions in the Asylum and Immigration Appeals Act 1993 (tr. 10G-11A). I take the view that, as submitted by Mr Hill and Miss Henderson on behalf of the respondent authorities, those provisions reinforce Carnwath J's conclusion. Sections 4 and 5 of the 1993 Act made provision in respect of the housing of asylum seekers and their dependants. They did so by reference to applications made by asylum seekers under the homelessness legislation. For example, section 4(1) provided: "If a person ¼ makes an application under the homelessness legislation for accommodation ..." Schedule 1 to the Act contained supplementary provisions, including, in paragraph 8, provision in respect of existing applicants:

21. In those provisions Parliament drew a clear distinction between existing and future applications as regards the effect of the changes it had made to the homelessness regime. Had it wished to draw a similar distinction in the 1996 Act, one might reasonably have expected a similar approach. The approach in fact adopted in section 9(2) of the 1996 Act is very different. There is nothing in the language of the subsection to suggest that it is to apply only to future applications. Nor is there any equivalent of paragraph 8 of Schedule 1 to the 1993 Act. This tells strongly in favour of the view that the provision is intended to refer to existing as well as future applications.

22. I turn to consider the second, and alternative, main submission made on behalf of the applicants. It proceeds on the basis that section 9(2) does apply to applications made under Part III of the 1985 Act before the subsection came into force. The argument advanced is that section 9(2) effects an implied partial repeal of Part III and that section 16(1) of the Interpretation Act 1978 therefore applies to save pre-existing rights. Section 16(1) of the 1978 Act provides:

23. The contention that an enactment may be partially repealed by a later Act excluding a particular case from its operation derives support from Halsbury's Laws, Vol.44(1), paragraph 1306 and the cases there cited, including Heston and Isleworth Urban District Council v. Grout [1897] 2 Ch 306. I do not need, however, to decide the point, for the simple reason that in my judgment section 16 of the 1978 Act is of no assistance to the applicants even if section 9(2) of the 1996 can be regarded as involving in that sense a partial repeal of Part III of the 1985 Act. The effect of section 16 of the 1978 would be to preserve any rights that had accrued under the 1985 Act prior to the coming into force of section 9(2) of the 1996 Act. In order to succeed in these proceedings, the applicants have to show that they had an accrued right of such a nature as to entitle them to have their applications for accommodation determined on the basis of the conditions of eligibility existing at the time of their application (or at any rate prior to 19 August 1996). For reasons already given in the course of examining the first main submission, and in common with the analysis of Carnwath J in ex p. Shelter , I do not think that the applicants had any such right. Under Part III an authority is under different duties at different stages. Those duties may be enforced by applicants as a matter of public law. In addition, once the authority has reached a decision at any particular stage that the statutory conditions relevant to that stage are satisfied, rights are created in the field of private law: Cocks v. Thanet District Council [1983] 2 AC 286. At no point is there a right, whether in public or private law, to have the application determined on the basis of conditions other than those applying at the time of the determination. Similarly I reject the proposition put forward by Mr Luba that the process of inquiry and final decision is one of discovery of rights to accommodation existing at the date of the initial application.

24. The third and final main submission was in the alternative to that based on section 16 of the 1978 Act. It relied on the well established principle of statutory interpretation that a statute should not be interpreted as having retrospective effect, so as to impair existing rights and obligations, unless that result is unavoidable on the language used. This point was considered by Carnwath J in ex p. Shelter and some of the relevant authorities are cited in his judgment (tr. 12-13). Indeed, in ex p. Shelter the common law principle was examined first and section 16 of the 1978 Act was held, in my view rightly, to raise a similar presumption and not really to give rise to separate considerations. Again I agree with the conclusion reached by Carnwath J. The simple answer is that section 9(2) does not have retrospective effect if construed in the way in which I have construed it. The fact that it bites on existing applications does not make it retrospective in effect. It bites on those applications only in so far as future stages of the process are concerned, including in particular any final decision yet to be taken at the time when the subsection comes into force. It does not impair existing rights or obligations. As Carnwath J puts it:

25. He went on to consider the nature of the obligations of local authorities with regard to matters such as the giving of notice and periods of grace. The authorities in the present proceedings had not acted initially in accordance with the approach laid down by him, but took fresh decisions in the light of his judgment. There is no challenge to that aspect of the judgment.

26. Accordingly I reject Mr Luba's third submission as well and the application must be dismissed. It would be sufficient to dismiss it on the basis that Mr Luba has failed to convince me that ex p. Shelter was wrongly decided. But I go further than that. I take the view that ex p. Shelter was correctly decided; and, like Carnwath J, have reached a reasonably clear view on the matter.

27. In this case I have handed down the judgment and, for the reasons given in that judgment, the application is dismissed.

28. MR HUNT: My Lord, I appear on behalf of the City of Westminster. I understand the applicant is legally aided and I and instructed to ask for the respondent's costs not to be enforced without leave of the court.

29. MR LUBA: My Lord, may I first deal with the application for costs which I hear from my learned friend on behalf of Westminster with some surprise. My Lord will appreciate that not only is Mr Zafru legally aided, but he is a person who is entirely dependent for his income upon the respondent, the Westminster City Council, as a result of the assistance provided to him under the National Assistance Act. He has no means or resources independently whatsoever. My friend presses his application for costs presumably on the basis of the usual, as it were, football pools order, but I wonder if that is at all appropriate in this type of case. My Lord, in those circumstances I respectfully resist his application for costs against this particular applicant.

30. MR RICHARDS: On that point I am against you, Mr Luba. I shall make the order not to be enforced without leave of the court.

31. MR LUBA: I am very much obliged, my Lord. My Lord, I am dealing only with Mr Zafru for present purposes, because my friend Mr Hunt appears only for Westminster, and I seek, firstly, an order for legal aid taxation of his costs.

32. MR RICHARDS: I make that order.

33. MR LUBA: I am very much obliged. My Lord, I do have an application for leave in the case of Mr Zafru, but I do not wish to cause any embarrassment to the other respondent, namely Southwark, by making that application in their absence. It may be that Mr Hunt can assist as to the position of Southwark.

34. MR HUNT: At present I am unable to assist. May I take instructions?

35. MR HUNT: My Lord, I am unable to assist.

36. MR RICHARDS: I take it they were notified by the court as to this judgment.

37. MR LUBA: I cannot assure your Lordship that they were notified by the court; I assume that to be the case.

38. MR RICHARDS: The associate confirms that that was so. In that case in their absence let us proceed with whatever can be proceeded with in relation to them.

39. MR LUBA: My Lord, in relation to Bediako, there being no application for costs, I invite your Lordship to make no order save legal aid taxation of Mr Bediako's costs.

40. MR LUBA: My Lord, in both matters therefore I seek your Lordship's leave to appeal to the Court of Appeal. My Lord will recall, and indeed my Lord reflects this in the judgment, the difficulty that faced me in arguing the case in the first place, and my Lord has made it apparent from the very helpful way in which the judgment is expressed that the question of leave to appeal has been given consideration, and my Lord identifies with Mr Justice Carnwath a plain or clear view on the law. My Lord, I do, however, seek your Lordship's leave to appeal on three grounds. The first is, as my friend Mr Stephenson was just identifying, that I ought to invite your Lordship to give leave if the issue in the case is one of pure law, and I say that this is, as your Lordship will appreciate, a matter of pure statutory construction.

41. My Lord, the second is that I ought to demonstrate to your Lordship that the matter is of public importance. My Lord knows that on Monday of this week judgment was given in the Court of Appeal in other matters touching on asylum seekers and their Lordships in that court identified some thousands of people, over 2,500 reported in London alone, to be affected by the provisions, excluding those who applied post-arrival for asylum from the Social Services, Social Security and housing provision. My Lord, I have not been able, and I apologise, in the period of your Lordship's reservation of judgment to identify precisely how many people were affected by the section 9 point. That is in large part because they are masked by the present arrangements under section 21 of the National Assistance Act.

42. MR RICHARDS: Of course if those present arrangements stand as currently they do the point is of less practical significance.

43. MR LUBA: Yes, indeed it is, my Lord, and in case my Lord does not know it already, I should indicate that the Court of Appeal on Monday refused leave to petition the House of Lords so that at least for the time being that matter is settled, but my Lord will also know that all three of the respondents in that case, the two local authorities and the Secretary of State, indicated that they would seek leave and they are petitioning the Lords so as to join in the hearing of an associated appeal which is now listed for June. So, my Lord, this may resurrect itself as an issue in much the way it might have done had the first instance decision simply stood pending leave to the Court of Appeal. So, my Lord, I do submit that it is a point of public importance, albeit not yet crystallised into an issue of severe practical importance.

44. My Lord, the third aspect, and it is a rather unusual aspect which arises only in the field of judicial review, is the difficulty which will arise if the Court of Appeal is invited to entertain the same point not on appeal from a full judgment but on a renewed application for leave. It must follow from your Lordship's judgment and the judgment of Mr Justice Carnwath that the prospects are that any subsequent application for leave on the same point will be refused. The applicant in such a case will, as of right, be entitled to invite the Court of Appeal to consider itself granting leave to move. We say that is an unsatisfactory basis upon which an issue of statutory construction be tested. The opportunity should be given to the court, we say, to examine the issue of statutory construction with the benefit of a full and reasoned judgment such as that which your Lordship has delivered, and my Lord knows that those three points, as it were, the pure law, the practical importance and the special circumstances of pressure on the Crown Office List producing a prospective renewal of the leave application, might well have persuaded Mr Justice Carnwath to grant leave had it not been the vacation when he heard the case. My Lord, it is not the vacation now, this matter can be entertained in the Court of Appeal's ordinary business and I invite your Lordship to give me leave.

45. MR RICHARDS: Mr Luba, I accept that this is a point of law. I am prepared to accept it is a point of public importance. If I were in substantial doubt as to the answer, I would give you leave to appeal, but because I have reached, in common with Mr Justice Carnwath, a reasonably clear view of the law, it does not seem to me that it would be appropriate for me to give you leave to appeal. I am afraid that this is a matter you must pursue with the Court of Appeal.

46. MR LUBA: I am very much obliged. My Lord, may I thank you for arranging for these judgments to be given together.

47. MR RICHARDS: Not at all. I am sorry it has taken some weeks to get them out; other pressures, I am afraid.