Case No: CO/57/2003
Neutral Citation Number: [2003] EWHC 2266 (Admin)
 
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13 October 2003

Before :

THE HONOURABLE MR JUSTICE KEITH
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Between :

	R (on the application of Morris)	Claimant	
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	Westminster City Council	Defendant	

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Mr Matthew Hutchings (instructed by TMK Solicitors (Southend-on-Sea)) for the Claimant
Mr David Warner (instructed by Westminster City Council Legal and Administrative Services) for the Defendant

Hearing date: 16 September 2003
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JUDGMENT

Mr Justice Keith: 
Introduction
1.	Homeless persons are regarded as having a priority need for accommodation if they have dependant children living with them.   In that event, the local housing authority has to ensure that they are provided with accommodation.   If they do not have a priority need, the local housing authority may secure accommodation for them, but is not obliged to do so.   The question which this case raises is whether a homeless parent has a priority need if, unusually, the child is subject to immigration control but the parent is not.   All references in this judgment to sections of an Act are references to the Housing Act 1996 (“the Act”) unless otherwise stated.   
The facts
2.	The claimant comes from Mauritius.   She has a daughter aged 2 and is her daughter’s sole carer.   They arrived in the UK in April 2002, and were given leave to enter the UK as visitors.   In due course, the claimant applied for a British passport on the basis that she was a British citizen by descent.   That status was subsequently recognized, and on 9 August 2002 she obtained a British passport.   Her daughter was not eligible for British citizenship, and she remains a citizen of Mauritius alone.   
3.	The claimant and her daughter lived with relatives until August 2002 when the claimant’s aunt, who lived in Westminster, refused to let them stay any longer.   The claimant applied to the defendant, Westminster City Council (“the Council”), for accommodation under Part VII of the Act, which relates to homelessness.   That application was refused on the basis that although the claimant was homeless, she was not eligible for assistance because she was not habitually resident in the UK.   That decision was subsequently withdrawn, presumably because the Council had by then been informed of the claimant’s British citizenship.   The decision was replaced by a fresh decision refusing to accommodate the claimant: although the claimant was homeless, and eligible for assistance, she was said not to be in priority need.   Section 189(1)(b) provides that “a person with whom dependant children reside or might reasonably be expected to reside” will have a priority need for accommodation, but the Council decided that the claimant could not rely on the need to accommodate her daughter as giving her a priority need for accommodation because she did not have “any valid identity” for her daughter.
4.	That decision was also withdrawn and replaced by a further decision refusing the claimant accommodation.   That decision was again that although the claimant was homeless and eligible for assistance, she was not in priority need.   The reason given this time for that conclusion was that “as your daughter has no immigration status in the UK she is ineligible for housing assistance and cannot give you a priority need for accommodation”.   This was a reference to section 185(4), whose precise terms it will be necessary to look at in due course.   But what the Council was deciding was that the claimant’s daughter’s immigration status prevented the claimant from being able to rely on the need to accommodate her daughter as giving her (the claimant) a priority need for accommodation.   The claimant’s solicitors requested a review of that decision, but by its letter dated 18 December 2002 to the claimant the Council confirmed the decision.   It took the view that section 185(4) required it to disregard the claimant’s daughter when determining whether the claimant was in priority need.   That is the decision which is challenged on this claim for judicial review.
5.	Permission to proceed with the claim was initially refused by Jackson J. on the papers on the basis that the claimant had not exercised her right of appeal to the County Court on a point of law under section 204(1) against the decision that she was not in priority need.   But Collins J. granted the claimant permission to proceed with her claim, presumably because it was to be argued on the claimant’s behalf that if the Council’s construction of section 185(4) was correct, the Court should declare it to be incompatible with various Convention Rights.   In those circumstances, the Council does not contend that the claim should be dismissed on the basis that section 204(1) provides the claimant with an alternative remedy.   
6.	The Council also decided not to exercise its discretion under section 192(3) to secure accommodation for the claimant and her daughter.   At one time, that decision was being challenged as well, but the attack on that decision has since been abandoned.   
The construction of section 185
7.	Section 185 provides as follows:
“(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 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.”
It is common ground that the claimant’s daughter “is subject to immigration control within the meaning of the Asylum and Immigration Act 1996”, and that she is not included in any class prescribed by regulations made by the Secretary of State.   The Council’s case is that section 185(2) prevents her from being eligible for housing assistance, and since she is to be treated as coming from abroad, section 185(4) prevents the claimant from relying on her daughter to bring herself (the claimant) within the class of persons identified by section 189(1)(b) as having a priority need for accommodation.   
8.	The argument of Mr Matthew Hutchings for the claimant had two strands.   First, he argued that section 185 provides for two distinct categories of persons who are ineligible for assistance under Part VII.   The first category is identified by section 185(1): “a person from abroad who is ineligible for housing assistance”.   The second category is identified by section 185(2): “[a] person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996…..unless he is of a class prescribed by regulations made by the Secretary of State.”   Only persons who come within the first category are to be disregarded by virtue of section 185(4) in determining whether someone else has a priority need for accommodation, because the language of section 185(4) tracks the language of section 185(1), not that of section 185(2).   Accordingly, although the claimant’s daughter comes within the second category because she is subject to immigration control, that should not have prevented the claimant from being able to rely on her daughter to bring herself within the class of persons having a priority need for accommodation, so long as her daughter did not come within the first category.   
9.	I cannot go along with this argument.   The governing provision in section 185 is section 185(1), which provides that if a person is to be eligible for housing assistance, he or she must be a person from abroad who is “ineligible for housing assistance”.   Section 185(2) does no more than identify one particular class of persons to whom the phrase “ineligible for housing assistance” in section 185(1) relates, namely persons who are subject to immigration control.   Section 185(2) does not identify a separate class of persons who are ineligible for assistance: it merely identifies a class of persons who are to come within the phrase “ineligible for housing assistance”.   Thus, the reason why section 185(4) tracks the language of section 185(1) only is because section 185(1) is the governing provision as to who is ineligible for assistance.   
10.	The second strand of Mr Hutchings’ argument was directed towards showing that the claimant’s daughter did not come within the first category.   It focussed on the words “a person from abroad”.   It was argued that these words should not be equated with someone who is subject to immigration control.   If that had been intended, section 185(2) could easily have been drafted to make that clear:
“A person who is subject to immigration control…..is to be treated as a person from abroad who is not eligible for housing assistance…..”
That was said to be borne out by the language of section 185(3), which gives the Secretary of State the power to make 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.”
This is the sort of language which could have been used in section 185(2) but was not.   Thus, a person who is subject to immigration control could still be eligible for assistance provided that he or she was not from abroad, because the difference in language between section 185(2) and section 185(3) shows that section 185(2) merely identifies a particular group of persons who are ineligible for assistance for the purpose of section 185(1) without treating persons who are within that group as persons from abroad.   And the claimant’s daughter was not “a person from abroad” in view of the fact that she had become habitually resident in the UK.
11.	I cannot go along with this argument either.   The regulations which the Secretary of State is empowered by section 185(3) to make relate to “other descriptions of persons” who are to be treated as persons from abroad who are ineligible for housing assistance.   Since the only description in section 185 of persons who are to be treated as such persons are persons who are subject to immigration control, section 185(3) must have been referring to them.   Thus, whatever the language of section 185(2), section 185(3) shows that section 185(2) was intended to treat persons who are subject to immigration control as persons from abroad who are ineligible for housing assistance.   
12.	In short, section 185 deals with persons from abroad who are not to be eligible for housing assistance under Part VII.   That is apparent from the heading to the section.   Section 185(1) states the principle: if a person is from abroad and is ineligible for housing assistance, he is ineligible for assistance under Part VII.   Sections 185(2) and 185(3) identify the two sub-classes of persons who come within the class identified by section 185(1): those who are subject to immigration control (section 185(2)), and those to whom section 185(3) relates.   The language of section 185(3), in particular the word “other”, shows that persons who come within section 185(2) because they are subject to immigration control are to be treated as coming within section 185(1).  
13.	I am fortified in this conclusion by the view taken of section 185(2) by those who subsequently drafted regulations made by the Secretary of State under section 185(3).  They are the Homelessness (England) Regulations 2000 (SI 701/2000).   Reg. 4 provides:
“The following is a description of persons, other than persons who are subject to immigration control, who are to be treated for the purposes of Part VII of the 1996 Act (homelessness) as persons from abroad who are ineligible for housing assistance – A person who is not habitually resident in the Common Travel Area other than…..”
and there follows a number of immaterial exceptions.   The Common Travel Area is defined in reg. 2(1) as “the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively”.   Reg. 4 is the basis for the claimant’s argument that her daughter is not a person from abroad because she is habitually resident in the UK, but the relevance of reg. 4 for present purposes is that the words “other than persons who are subject to immigration control” show that the draftsman was under the impression that such persons were already treated by section 185 as persons from abroad who are ineligible for housing assistance.   I recognize, of course, that his view is not a legitimate aid to construction (see, for example, the observations of Viscount Dilhorne in Jackson v Hall [1980] AC 854 at pp.884G-885A and Scott V-C (as he then was) in Dimond v Lovell [2000] 1 QB 216 at [48]), but although I do not rely on his view, I note that it is the same as mine.   
14.	There are two other points which I must address.   First, I have not overlooked the reliance placed on Part VI of the Act which governs the allocation of a local housing authority’s own housing stock.   In R (on the application of Kimvono) v Tower Hamlets London Borough Council (2001) 33 HLR 889, it was held that the relevant provision in Part VI (section 161(2)) only prohibits a local housing authority from allocating accommodation from its housing register to an applicant who is subject to immigration control.   The immigration status of his dependants is irrelevant.   If the applicant is not subject to immigration control, the local housing authority is not prohibited by section 161(2) from taking his dependants into account when assessing his housing needs and allocating him accommodation, even if his dependants are subject to immigration control.   It was contended that it would be very odd if the claimant’s daughter had to be taken into account by the Council when assessing the claimant’s need for accommodation under Part VI out of the Council’s own housing stock, but not when determining whether the claimant had a priority need for accommodation under Part VII if she was homeless.   I am not convinced that that would be as odd as was claimed.   But there was not in Part VI (prior to the repeal of some of its provisions by the Homelessness Act 2002), nor is there now, a provision equivalent to section 185(4).   Parliament must be regarded as having decided that it was inappropriate for a local housing authority, when deciding whether a homeless person had a priority need for accommodation, to take into account a dependant of that person who was subject to immigration control.   
15.	Secondly, Mr Hutchings developed an ingenious argument based on the definition of the words “eligible for assistance”.   Section 163(2) provides that in Part VII those words mean “not excluded from such assistance by section 185”.   Inserting that definition into section 185(4) results in section 185(4) providing as follows:
“A person from abroad who is [excluded from assistance under this Part by section 185] 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.”
The point which is made is that a dependant child is not someone “who is excluded from assistance under this Part by section 185”.   A dependant child is excluded from assistance under Part VII by virtue of his status as a dependant child, not by virtue of section 185, it being settled law that local housing authorities owe no duties under Part VII to dependant children (see R v Oldham Metropolitan Borough Council ex p. Garlick [1993] AC 509).   In my view, this argument fails.   The definition in section 183(2) is a definition of the words “eligible for assistance”, whereas the words in section 185(4) are “eligible for housing assistance”.   That distinction is preserved by section 185(1), which uses both phrases.   In any event, though, it is only sections 185(1)–(3) which identify the persons who are to be ineligible for assistance.   The definition of “eligible for assistance” in section 183(2) can hardly apply to section 185(4) which did not purport to identify which persons were to be ineligible for assistance, but which only identifies those persons who are to be disregarded when certain decisions relating to other persons under Part VII are being made.   
16.	It follows that, applying the ordinary canons of construction, the claimant’s daughter is “a person from abroad who is ineligible for housing assistance” within the meaning of section 185(4).   The Council therefore had to disregard her in determining whether the claimant had a priority need for accommodation.   
The Human Rights Act 1998
17.	But that is not the end of the matter.   The claimant’s case is that this construction of section 185(4) prevents her and her daughter from being able to enjoy their right to respect for their home and their family life under Art. 8 of the European Convention on Human Rights (“the ECHR”) in the way that other people can.   In short, the question is whether the Council’s refusal to treat the claimant as having a priority need for accommodation in circumstances where a parent with a dependant child who was not subject to immigration control would have been treated as having a priority need for accommodation amounted to an infringement of her right under Art. 14 of the ECHR to permit her rights under the ECHR to be enjoyed without discrimination (“the discrimination issue”).   If that argument is correct, two further issues arise.   First, is it possible for section 185(4) to be read and given effect in a way which is compatible with the right guaranteed by Art. 14 as required by section 3(1) of the Human Rights Act 1998 (“the HRA”) (“the construction issue”)?   Secondly, if not, and if section 185(4) is therefore incompatible with the right guaranteed by Art. 14, should the Court make a declaration of that incompatibility as permitted by section 4(2) of the HRA (“the declaration issue”)?   
18.	The claimant’s case is that if the discrimination issue is decided in her favour, section 185(4) can be read in a way which makes it compatible with Art. 14, but that if it cannot, the Court should make a declaration of incompatibility.   The Council’s case is that if the discrimination issue is decided in favour of the claimant, section 185(4) cannot be read in a way which makes it compatible with Art. 14, but the question whether a declaration of incompatibility should then be made should be adjourned so that notice can be given to the Crown as required by CPR 19.4A(1) which provides:
“The court may not make a declaration of incompatibility in accordance with section 4 of the Human Rights Act 1998 unless 21 days’ notice, or such other period as the court directs, has been given to the Crown.”
If such a notice is to be given, para. 6.4(1) of the Practice Direction made under Part 19 requires the notice to be in the form directed by the Court.   Indeed, in Donoghue v Poplar Housing and Regeneration Community Association Ltd. [2001] EWCA Civ. 595 at [20], Lord Woolf C.J. suggested that “[t]he formal notice which the HRA and the CPR require should always be given by the court.   This is because the court will be in the best position to assess whether there is a likelihood of a declaration of incompatibility being made.”
19.	In this case, the Treasury Solicitor was served with the papers, and informed the Office of the Deputy Prime Minister of the proceedings.   A few days before the hearing, the Treasury Solicitor informed the Council’s solicitors that the Secretary of State for the Home Department did not intend to make an application for leave to make representations.   But the notice required by r. 19.4A(1) has never been given by the Court.    It follows that a declaration of incompatibility cannot be made at present.   Indeed, since the hearing of this claim, the Treasury Solicitor has written to the Administrative Court Office requesting that formal notice be given to the Secretary of State by the Court “if the Court is minded to grant a declaration of incompatibility”.
20.	Although I have not formed a concluded view on the discrimination and construction issues at all, it is certainly possible that the claimants will succeed on the discrimination issue, but that the Council will succeed on the construction issue, in which case the declaration issue will be a live one.   In these circumstances, it would, in my judgment, be wrong for the Court to decide the discrimination and construction issues at this stage, and only if those issues were decided in a way which made the making of a declaration of incompatibility a real likelihood, for the Court then to direct that notice be given to the Secretary of State.   By that stage, the Court would have little alternative but to make a declaration of incompatibility in due course, and the notice to the Secretary of State would have served little purpose.   If such representations as the Secretary of State wishes to make to the Court as to whether a declaration of incompatibility should be made are to have any force at all, those representations will have to address the construction issue and probably the discrimination issue as well.   If the notice to the Secretary of State is to be deferred until after the Court has decided the discrimination and construction issues in a way which makes the making of a declaration of incompatibility a real likelihood, the issues which the Secretary of State’s representations are likely to have addressed would have been decided already.   
21.	None of these considerations would have been relevant if the claimant’s construction of section 185(4), on the application of the ordinary canons of construction, had been correct.   That is why it may well have been premature to serve a notice under r. 19.4A before now.   But now that the Court has found that the claimant’s construction of section 185(4) is not correct, it is appropriate for the court to give the requisite notice to the Secretary of State now.   That accords with para. 6.1 of the Practice Direction which refers to the court needing to consider the question of notice where there is “an issue for the court to decide which may lead to the court considering making a declaration” (emphasis supplied).   
Conclusion
22.	For these reasons, I adjourn further consideration of this claim for judicial review until the notice required by r. 19.4A has been given to the Crown in accordance with the provisions of para. 6 of the Practice Direction.   Para. 6.4(3) permits the Court to require the parties to assist in the preparation of the notice, and I anticipated that it would be possible for the terms of such a notice to have been drafted by the date of the handing down of this judgment.   For that purpose, I directed that the substance of the draft of this judgment which was sent to counsel and solicitors for typing and other corrections could be communicated to the parties and to the Treasury Solicitor on its receipt.