England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		30 June 2006

Mr Justice Bennett :

1. On 8 and 20 October 2004 two groups of British citizens arrived at Gatwick Airport from Mauritius. They had little money and had no jobs or accommodation to which to go. They applied for jobseeker's allowance and for local authority accommodation. Both were refused on the grounds that they were not habitually resident in the United Kingdom, Ireland, Isle of Man or Channel Islands. It is upon those decisions of refusal that their applications for judicial review are founded. Fortunately the individuals comprising both groups have found work and housing. The practical importance of these proceedings for the Claimants is not only to obtain arrears of jobseeker's allowance (i.e. @ c. £53 per week for three months) and a declaration that the local authority acted unlawfully in refusing immediate housing accommodation, but also to pave the way for more British citizens of the same ethnic origin as the two groups to come to the UK from Mauritius so that they would be entitled to immediate payment of jobseeker's allowance and housing accommodation without having to satisfy any test of habitual residence in the UK.
2. The individuals in both groups, with three exceptions, were all born in Mauritius and grew up there. All the individuals were born of parents who both came from Chagos Islands or of parents one of whom came from Chagos Island and married Mauritians. The three exceptions are Jacques Clement who left Chagos Islands when he was 9 years old in 1972, Johnny Edmond, who left the islands when he was 2 years old in 197 1, and Marie France, who left the islands when she was 10 years old in 1955. Each went to Mauritius where they made their home.
3. The displacement of the Chagossian population from the islands in 197 1 to Mauritius is one that cannot fail to evoke the greatest sympathy. Put shortly they were displaced to Mauritius in order that the major island, Diego Garcia, could be used by the armed forces of the United States of America. It was not thought sufficient to displace those living on Diego Garcia alone. All, even in the outlying islands, were displaced. It is said that the UK Government caused them to leave their homeland and ever since has prevented their return. I do not consider it an exaggeration when their displacement is described as exile.
4. The history of the Chagossians and their fight to return to their homeland is chronicled by the Divisional Court in Regina (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs and another [2001] QB 1067 ("Bancoult 1") and The Queen on the Application of Louis Olivier Bancoult v. Secretary of State for Foreign and Commonwealth Affairs [2006] EWHC 1038 (Admin) ("Bancoult 2").
5. In Bancoult 1 the court quashed as unlawful section 4 of the Immigration Ordinance 1971 of the British Indian Ocean Territory Order 1965 which provided for the compulsory removal of the whole of the population from the Chagos Islands to Mauritius and prohibited their return. The UK government accepted the decision and did not appeal. However, on 10 June 2004 the British Indian Ocean Territory (Constitution) Order 2004 made by Her Majesty The Queen in Council declared that no person had a right of abode in the British Indian Ocean Territory nor the right, without authorisation, to enter and remain there. The Divisional Court in Bancoult 2 declared those provisions to be unlawful.
6. Whether the Chagossians will ever be able to return to the islands remains to be seen.
7. The statements of the Claimants in the instant proceedings make disturbing and uncomfortable reading. They have lived in Mauritius in, at least by the standards of the developed world, poor housing, with little or no private resources, and with basic jobs and low wages. One of the claimants described his living conditions and work in the following terms:-

"5. Before leaving Mauritius I lived with my parents, my wife, my 2 year old son and my sister. We lived in an area of Mauritius called Caissis. There are a lot of problems with drugs and violence in this area.

8. I do not know if my parents received any money. They did however receive a plot of land with nothing on it after I was born. My parents borrowed money and built a small house consisting of one room. The house is made out of cement. We had electricity and access to a tap of water outside the house. The bathroom and the kitchen were separate from the main building and were made out of iron. We would go to the toilet in a bucket inside the house which we would then empty in the bathroom area. The kitchen was a small room with a glass cylinder and a saucepan.
9. My father and I were the only ones in the family who worked. My father worked as a part time stone mason and earns on average 2500 rupees a month. I also worked as a part time stone mason. I also earned 2500 rupees per month. We were self employed.
10. Now that I have gone the household income is reduced and I do not know how my father will manage to support the family. There is no longer much work as a stone mason. I am concerned for them and that is why I am extremely desperate to find a job and send money back to my family as soon as possible."
11. This description is by no means untypical of the other Claimants' difficult situations in Mauritius.
12. It is therefore hardly surprising that the motivation to come to the UK was strong, especially as pursuant to the British Overseas Territories Act, 2002, they, as citizens of British Dependant Territories with no right of abode in the UK prior to that Act, then became British citizens with such a right of abode.
13. It is now necessary to explain why these British citizens, entitled to enter the UK as of right, were denied jobseeker's allowance and homelessness assistance.
14. It is common ground that the applicable, domestic law in respect of the jobseeker's allowance and homelessness assistance denied the Claimants that benefit and assistance on the ground that they were not habitually resident in the UK, Ireland, Isle of Man or Channel Islands, known as the Common Travel Area ("CTA"). Subject to certain exceptions, a person from abroad is not entitled to any amount of social security benefits including jobseeker's allowance or assistance for the homeless -see Schedule 5 of the Jobseeker's Allowance Regulations 1996 and section 185 of the Housing Act 1996, respectively. Any person who is not habitually resident in the CTA falls to be treated as a person from abroad -Regulations 85 of the 1996 Regulations and Regulation 4 of the Homelessness (England) Regulations 2000, respectively. It is the application of this requirement, that a person must be habitually resident in the CTA before he is eligible for the jobseeker's allowance and homelessness assistance, which is impugned in these judicial review proceedings. It should be noted that it applies to all individuals (subject to certain limited exceptions) including all British citizens. Thus a British citizen, who, having lived in England perhaps for a substantial time, leaves (say, to work abroad) and then returns (say, after a number of years abroad), may find that he is no longer habitually resident in the UK on his return and then may be denied jobseeker's allowance (and other social security benefits) and homelessness assistance.
15. The Claimants in the instant case appealed successfully the adverse determination re habitual residence to the Social Security Appeal Tribunal. It found that on or shortly after arrival the Claimants were habitually resident in the UK. However the Secretary of State appealed that decision to the Social Security Commissioner, which appeal is still pending.
16. The Claimant's case is that the imposition on them of a condition of habitual residence in respect of both the jobseeker's allowance and the homelessness assistance is unlawful. The submissions of Mr Cox, counsel for the Claimants, can be summarised in this way. First, the test as to habitual residence discriminates against Chagossians, a district ethnic group, as compared to British citizens of Irish ethnic or national origin, contrary to Part III of the Race Relations Act, 1976 as amended ("RRA") and/or Council Directive 2004/43lEC ("the Race Directive"). Second, the test discriminates against the Chagossians as compared to British citizens of Irish ethnic origin contrary to Article 14 of the European Convention on Human Rights read with Article 8 and/or Article 1 of the First Protocol. Reliance on Article 3 of the ECHR is abandoned. Third, the refusal to exempt Chagossians from the test (whether by legislation or guidance) is irrational and/or disproportionate.
17. Mr Cox referred me to various paragraphs in the judgments of the Divisional Court in Bancoult 1 and 2 to the effect, he submitted, that for the purpose of the RRA and the EHCR the Chagossians share a common ethnic or national origin which are different from Mauritians or Seychellois. However, I do not consider it is necessary for the proper determination of these proceedings to delve into that matter. First, very little, if any, of the evidence in this case touches, or if it does, only superficially, as to whether the Chagossians have a distinct ethnic origin. Second, neither Bancoult 1 nor Bancoult 2 were concerned, as I read them, with the ethnicity of the Chagossians -it was not an issue in either case. Third, I agree with the submission of Mr Howell QC, for the Secretary of State, that it is sufficient for the court to decide the matter on the basis a) the discrimination of which the Claimants complain is based on the advantageous treatment which they say British citizens of "Irish natural or ethnic origin" enjoy by virtue of the provisions relating to habitual residence, b) accordingly, all British citizens who are not of "Irish national or ethnic origin (which, of course, include the Chagossians) are at a disadvantage unless they are habitually resident in the UK, whatever their own particular national or ethnic origin, and c) that is of itself potentially sufficient to establish a difference in treatment based on national or ethnic origin.
18. Mr Cox counters this submission by arguing that not to find the Chagossians as a distinct ethnic group robs the Claimants of their ethnic identity i.e. as persons part of a distinct ethnic group and leaves them in a sort of hotch pot of any one who is not of Irish origin, for the purposes of this case. I do not accept that. For the purposes of the issue of discrimination in this case, the Chagossians are British citizens but of non-British origin and vis-à-vis the requirement of habitual residence in the two relevant sets of Regulations they are in no different position from British citizens of British origin who either have never lived in the UK or are returning after absence abroad and have no habitual residence in the UK. Those British citizens are as much at a disadvantage re the test of habitual residence compared to British citizens of Irish origin who are habitually resident in Eire. Both these British citizens and the Chagossians are disadvantaged in the same way i.e. they are not habitually resident in the UK and both groups are therefore "persons from abroad" and ineligible for JSA and homelessness assistance.
19. So far as is material, paragraph 85(4) of the Jobseeker's Allowance Regulations 1 996 provides that:-

"person from abroad"... means a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is"-and there then follows four categories of exceptions, none of which are relevant in this case.

20. So far as is material re homelessness assistance, section 185 of the Housing Act, 1996 provides that:-

"(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) ….

(2A) …

(3) The Secretary of State may make provision by Regulations as to other descriptions of persons who are to be treated for the purposes if this Part as persons from abroad who are ineligible for housing assistance

(4) …

21. The Homelessness (England) Regulations 2000, paragraph 4, provide:-

"4. Description of persons who are to be treated as persons from abroad ineligible for housing assistance.

(1) The following are descriptions of persons, other than persons who are subject to immigration control, who are to be treated for the purposes of Part 7 of the 1996 Act (homelessness) as persons from abroad who are ineligible for housing assistance-

(a) Subject to paragraphs (2) and (3), a person who is not habitually resident in the United Kingdom ,the Channel Islands, the Isle of Man or the Republic of Ireland

(b)...

(2) The following persons shall not, however, be treated as persons from abroad who are ineligible pursuant to paragraph (1) (a) -

(a)...

(b)...

(c)...

(d) a person who left the territory of Montserrat after 1 November 1995 because the effect on that territory of a volcanic eruption."

22. I turn to the first issue -does the test of habitual residence discriminate against the Claimants, all of whom are Chagossians, as compared to British citizens of Irish ethnic or national origin contrary to the RRA and/or the Race Directive?
23. Mr Cox contends that the test is contrary to both the RRA and the Race Directive, but his primary contention is that it contravenes the RRA. Mr Howell submits that S. 41 (2) of the RRA takes out of the ambit of the RRA discrimination caused by the habitual residence test. Mr Cox strongly disputes that as a matter of construction; but if it does, then the Race Directive must be considered, both as an aid to construction, and to avoid reaching a result which European Community Law does not permit. Mr Howell disputes that submission.
24. The relevant provisions of the RRA as amended by the Race Relations Act 1976 (Amendment) Regulations 2003 (which came into force on 19 July 2003) are as follows (the amendments are in italics):-

"Part I Discrimination to which Act applies

l Racial discrimination

….

(IA) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (IB), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but -

(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,

(b) which puts that other at that disadvantage, and

(c) which he cannot show to be a proportionate means of achieving a legitimate aim.

(1B) The provisions mentioned in subsection (1A) are -

(a) Part II;

(b) sections 1 7 to 18D;

(c) section 19B, so far as relating to -

(i) any form of social security;

(ii) health care;

(iii) any other form of social protection; and

(iv) any form of social advantage;

which does not fall within section 20;

(d) sections 20 to 24;^[1]

19B Public authorities

(1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.

. . .

(5) This section is subject to sections 19C to 19F.

19C Exceptions or further exceptions from section 19B for judicial and legislative acts etc

(2) Section 19B does not apply to any act of, or relating to, making, confirming or approving any enactment or Order in Council or any instrument made by a Minister of the Crown under an enactment.

(3) Section 19B does not apply to any act of, or relating to, making or approving arrangements, or imposing requirements or conditions, of a kind excepted by section 41.^[2]

Part VI

General Exceptions from Parts II to IV

41 Acts done under statutory authority etc

(1) Nothing in Parts II to IV shall render unlawful any act of discrimination done-

(b) in pursuance of any instrument made under any enactment by a Minister of the Crown; or

References in this section to an enactment, Order in Council or instrument include an enactment, Order in Council or instrument passed or made after the passing of this Act.

(1A) Subsection (1) does not apply to an act which is unlawful, on grounds of race or ethnic or national origins, by virtue of a provision referred to in section 1(1B).^[3]

(2) Nothing in Parts II to IV shall render unlawful any act whereby a person discriminates against another on the basis of that other's nationality or place of ordinary residence or the length of time for which he has been present or resident in or outside the United Kingdom or an area within the United Kingdom, if that Act is done-

_(b) in pursuance of any instrument made under any enactment by a Minister of the Crown; or

Part X Supplemental

78 General interpretation provisions

(1) In this Act, unless the context otherwise requires-

"social protection " and "social advantage" have the same meaning as in Article 3 of Council Directive 2000/43/EC;4

25. Mr Cox submits that the comparator group are British citizens of Irish ethnic origin who are habitually resident in Ireland at the moment they may claim JSA and/or homelessness assistance in the UK. The test of habitual residence prefers that group over British citizens of Chagossian origin. He conceded that he cannot attack "any .act of ... making . . . any enactment or Order in Council or any instrument made by a Minister of the Crown under an enactment"-see S. 19 C (2). But, he submits, the "act" of the social security officer/local authority who refused JSA/homelessness assistance by reason of the test was acting unlawfully within the RRA and S. 41 (2) does not except that "act" from being unlawfully discriminatory -see ss 19 C (3) and 41 (2).
26. Mr Cox submits that for the purposes of deciding whether S. 41 (2) excepts the "act", it must be assumed that the test discriminates on racial grounds. S. 41 (2) is carefully worded. It does not exempt discrimination based upon residence in any place. The relevant exemption is only for discrimination "on the basis of ... the length of time for he has been present or resident in or outside the United Kingdom or an area within the United Kingdom." Mr Cox further submits that there was discrimination on the basis of residence in a particular area outside the United Kingdom. Residence or a presence test is only saved if its geographical area is all of the UK, all of the area outside the UK or a particular area within the UK. The subsection refers to the UK and not the CTA. The act of the social security officer/local authority was not on the basis of the length of time the Claimants were present or resident in the UK but on the length of time for which they were resident in the CTA. "Outside" the UK cannot include the CTA.
27. Mr Howell, and Mr Okoya for the local authority, contend as follows. Those habitually resident in Ireland are treated differently from those, like the Claimants, who were habitually resident in Mauritius or elsewhere outside the CTA immediately before their arrival in the UK. The Claimants' construction of S. 41 (2) makes no sense of that provision and is contrary to its ordinary meaning. The subsection is concerned with discrimination against a person, inter alia, on the basis of that person's "place of ordinary residence or the length of time for which he has been present or resident in or outside the United Kingdom or an area within the United Kingdom." Any requirement for residence in Ireland is one based on residence outside the United Kingdom. The reason for the inclusion of the phrase "an area within the United Kingdom" is to make clear that the subsection covers cases in which there is an allegation of discrimination against e.g. the Scots or Welsh arising out of provisions based on presence or residence in those parts of the UK. But that does not show that the requirements in the subsection based on a person's particular country of residence abroad are not covered by the subsections, as the language would otherwise naturally suggest.
28. It seems to me that at first blush the natural and ordinary meaning of the words of S. 41 (2) do except from the ambit of the RRA the act of the social security officer/local authority in applying the habitual residence test. Even on closer inspection of S. 41 (2) with the assistance of counsel, my understanding of the meaning of the subsection is reinforced. I accept Mr Howell's submissions. I would only add that S. 41 (2) has now been in operation since the passing of the original RRA in 1976 and has survived through the process of various amendments, in particular in 2003. Nobody has sought to suggest, so far as I know, that S. 41 (2) does not apply to the habitual residence test incorporated into the JSA regulations and homelessness assistance legislation and regulations, which have been in operation for a substantial period of time, particularly in circumstances where British citizens of non-Irish ethnic origin habitually resident abroad are ineligible, on coming to the UK, for JSA and homelessness assistance (albeit they may subsequently establish habitual residence in the UK). The CTA has been in existence since 1976, as the statement of Ms Fleay demonstrates. It would be a strange result, in my judgment, if Parliament intended at any time, but particularly when the RRA was amended in 2003 by when the habitual residence test had been validated by Parliament for a considerable period, that the act of a social security officer/local authority in these or similar circumstances was not to come within S. 41 (2). That, I suggest, would be a bizarre result.
29. However, Mr Cox submits that he has a second string to his bow, the Race Directive. The RRA was amended by the 2003 Regulations which came into being in order to give effect to the Race Directive. He contends that the discrimination in the instant case is rendered unlawful by the direct effect of the Race Directive and accordingly S. 41 (2) must be interpreted to give effect to the Race Directive or, if necessary, disapplied.
30. The material parts of the Race Directive are as follows:-

"Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community and in particular Article 1 3 thereof,

(2) In accordance with Article 6 of the Treaty on European Union, the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States, and should respect fundamental rights as guaranteed by the European Convention for the protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community Law.

(9) Discrimination based on racial or ethnic origin may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and of social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity. It may also undermine the objective of developing the European Union as an area of freedom, security and justice.

(12) To ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin, specific action in the field of discrimination based on racial or ethnic origin should go beyond access to employed and self-employed activities and cover areas such as education, social protection including social security and healthcare, social advantages and access to and supply of goods and services.

(13) To this end, any direct or indirect discrimination based on racial or ethnic origin as regards the areas covered by this Directive should be prohibited throughout the Community. This prohibition of discrimination should also apply to nationals of third countries, but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third-country nationals and their access to employment and to occupation.

(16) It is important to protect all natural persons against discrimination on grounds of racial or ethnic origin. Member States should also provide, where appropriate and in accordance with their national traditions and practice, protection for legal persons where they suffer discrimination on grounds of the racial or ethnic origin of their members.

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose

The purpose of this Directive is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment.

Article 2

Concept of discrimination

For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin.

For the purposes of paragraph 1:

(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin;

(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Article 3

Scope

Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:

(e) social protection, including social security and healthcare;

(f) social advantages;

(g) education;

(h) access to and supply of goods and services which are available to the public, including housing.

This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.

CHAPTER IV

FINAL PROVISIONS

Article 14

Compliance

Member States shall take the necessary measures to ensure that:

(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished;

(b) any provisions contrary to the principle of equal treatment which are included in individual or collective contracts or agreements, internal rules of undertakings, rules governing profit-making or non-profit-making associations, and rules governing the independent professions and workers' and employers' organisations, are or may be declared, null and void or are amended.

Article 16

Implementation Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 19 July 2003... ."

31. Article 13 of the Treaty establishing the European Community (which has been taken by counsel from the consolidated version as at Christmas 2002) provides:-

"Article 13 (*)

Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

By way of derogation from paragraph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251"

32. I now turn to a decision of the Court of Appeal relied upon by Mr Howell, Gingi v. The Secretary of State for Work and Pensions [2001] EWCA Civ 1685, [2002] EuLR 37 CA, a decision on facts very close to the instant case. I take the facts from the headnote. The appellant was a British citizen originally resident in Cyprus. In 1998 she moved to the United Kingdom and shortly thereafter applied for income support under the Income Support (General) Regulations 1987. This was refused because at the date of refusal the appellant was not "habitually resident" in the United Kingdom as reg. 21 (3) required. The concept of habitual residence as it is used in the 1987 Regulations had been interpreted by the House of Lords in Nessa v Chief Adjudication Officer [l 9991 1 WLR 1937 to mean that the person has taken up residence and lived in the United Kingdom for a period of time. The appellant contended before the Court of Appeal that the concept of habitual residence as it is used in the 1987 Regulations must be interpreted in accordance with Community law as it was expressed in Case C-90197 Swaddling v Adjudication Officer [l 999] ECR I-1075. The ECJ there said, in interpreting Council Regulation No. 140817 1, that residence for a period of time is not a conditio sine qua non of habitual residence, but only a factor indicating the person's intention to make the place the principal and permanent centre of his interests. The appellant was not herself entitled to the benefit of the Community law because she came to the United Kingdom from a third country. She argued, however, that as the 1987 Regulations applied equally to Community and non-Community migrants, they should be interpreted in every case consistently with the ECJ's ruling.
33. The Court of Appeal dismissed the appeal. It held that as a matter of Community law there is no obligation to interpret a natural legal provision that applies in its terms to cases within and to cases without the Community legal order in a way that conforms to Community law even when the legislation is applied to a non-Community case. Accordingly no Community rule required the court to interpret "habitual residence" as it was used in the 1987 Regulations in a case with no Community element as it would have to in a case involving a Community migrant worker.
34. At paragraphs 6, 10, 11 and 12 Buxton LJ said:-

"6. Mr Howell QC was admirably frank as to the respects in which Miss Gingi could not benefit from the approach to habitual residence adopted in Swaddling. First, he fully accepted the admittedly banal principle of the Community legal order that rules of Community law, and in particular rules in relation to freedom of movement such as those contained in Regulation 140817 1, cannot be applied to activities that, so far as their connexion with the Community is concerned, are confined in all respects within a single member state. A convenient statement of that principle, if such were needed, is to be found in Case C-l 53/91

[1992] ECR I-4973 [8] (Petit).Miss Gingi's only connexion with the Community was within the United Kingdom. Second, Regulation 1408/71 addresses free movement within the Community of workers, conveniently called migrant workers, and their families. Miss Gingi had not moved or sought to move within the Community; and even if she had done so it was not established that she was a worker in terms of the Regulation.

10. Miss Gingi's argument fails for two, interrelated, reasons. It does not sufficiently respect the distinction between the scope of the domestic and of the Community legal orders; and it depends for its logical force upon an approach that categorises the court's task in terms of determining the meaning of particular words used in legislation, as opposed to determining the factual situations to which that legislation is intended to apply.

11. I have already mentioned the well-accepted principle that Community law applies only to cases falling within the Community legal order. Community law requires a member state, when faced with such a case, to apply to it the conclusions of Community, not of domestic, law. How in administrative or structural terms that is achieved is a matter for the national legal order. But the Community legal order requires no more than that. In respect of cases not falling within the Community legal order it has nothing to say.

12. That is strikingly illustrated by a case shown to us by Mr Ward for the Secretary of State, Case C-264196 [1998] ECR I-4695 (ICI v Colmer).British tax legislation made consortium relief available only to companies whose subsidiaries were located in the national territory. The Court of Justice held that that rule, when applied in the case of subsidiaries established in other member states, was inconsistent with Community principles of freedom of establishment. The Court was however also asked whether that meant that the legislation must also be disapplied, or interpreted so as to conform with Community law, in cases of subsidiaries having their seats in third countries. The Court replied, in paragraphs 32 and 34 of its Judgment:

"[32] It must be emphasised that the difference of treatment applied according to whether or not the business of the holding company belonging to the consortium consists wholly or mainly in holding shares in subsidiaries having their seat in non-member countries lies outside the scope of Community law.. .

[34] Accordingly, when deciding an issue concerning a situation which lies outside the scope of Community law the national court is not required, under Community law, either to interpret its legislation in a way conforming with Community law or to disapply that legislation."

This case therefore decides that there is no Community law obligation to interpret a national legal provision that applies in its terms to cases within and to cases without the Community legal order in a way that conforms to Community law even when the legislation is applied to a non-Community case. To the extent, therefore, that Miss Gingi's argument seeks to appeal directly to Community law it infringes that principle."

35. Arden LJ said at paragraphs 41 and 42:-

"41. As I see it, the crucial point in this appeal is whether the appellant is right on the "spillover" issue: i.e. if the European Court of Justice has held that for particular purpose habitual residence has a particular meaning and if in order to give effect to Community law the court must apply that meaning of "habitual residence" for that purpose in regulation 2 1(3) of the Income Support (General) Regulations 1997, does it follow that "habitual residence" must be so construed in that regulation for all purposes? Unless the appellant succeeds on this issue, the appeal fails.

42. I agree with Buxton LJ that, as Mr Timothy Ward, for the Secretary of State, convincingly demonstrated, Community law did not mandate this result: see Imperial Chemical Industries v Colmer [19991 1 WLR 108. Buxton LJ has already set out the relevant passages from paragraphs 32 and 34 of the judgment in the European Court of Justice, and so I will not repeat them. (I refer below to the subsequent history of the case in the English courts)."

36. Schiemann LJ (as he then was) said at paragraph 54:-

"54. For the purposes of exposition it is useful to refer to those covered by Community legislation as "insiders" and those who are not so covered as "outsiders". It is common ground that the appellant is an outsider. This country is under is no obligation arising by reason of our membership of the Community to treat her or any other outsider in any particular way so far as social security is concerned. Parliament was at liberty to enact two sets of Regulations in relation to income support -one applying to insiders and one applying to outsiders."

37. I see no divergence between Gingi and the European Court authority relied on by Mr Cox, namely Case C-144/04 Mangold v Helm. Mangold concerned the Framework Agreement, Directive 2000178 and provisions of German law, in connection with age discrimination. The ECJ said at paragraphs 74 and 75 said:-

"74. In the second place and above all, Directive 2000178 does not itself lay down the principle of equal treatment in the field of employment and occupation. Indeed, in accordance with Article 1 thereof, the sole purpose of the directive is 'to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation', the source of the actual principle underlying the prohibition of those forms of discrimination being found, as is clear from the third and fourth recitals in the preamble to the directive, in various international instruments and in the constitutional traditions common to the Member States.

75. The principle of non-discrimination on grounds of age must thus be regarded as a general principle of Community law. Where national rules fall within the scope of Community law, which is the case with Paragraph 14(3) of the TzBfG, as amended by the Law of 2002, as being a measure implementing Directive 1999170 (see also, in this respect, paragraphs 5 1 and 64 above), and reference is made to the Court for a preliminary ruling, the Court must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with such a principle (Case C-442100 Rodriguez Caballero [2002] ECR I-11915, paragraphs 30 to 32)."

38. Mr Cox submits that the 2003 amendments to the RRA were a measure to implement the Race Directive. That, in my judgment, is only partly correct. The 2003 amendments to the RRA, so far as this case is concerned, only amended the RRA in those provisions italicised in paragraph 2 1 above. Crucially the critical words in S. 41 (2) were not amended. Mr Cox's submissions on the applicability of the Race Directive to section 41 (2) must involve the proposition, though I do not understand him expressly to say so, that the Race Directive must have demanded an amendment to the critical words of S. 41 (2) and that the necessary amendment was not made, whether deliberately or accidentally.
39. Nevertheless, I have to decide the point whether, to borrow the phrases used by the Court of Appeal in Gingi, the Race Directive was "within the Community legal order" (per Buxton LJ at paragraph 11) or whether it covers "insiders" and not "outsiders" (per Schiemann LJ at paragraph 54).
40. Mr Cox's submissions, in reality, seek to undermine Mr Howell's submissions that the Community has no competence in this particular matter. Mr Howell submitted that Article 13 of the Treaty (which confers the power to make the Race Directive) expressly applies only "within the limits of the powers conferred by the Treaty upon the Community." This limitation is substantively reproduced in the Race Directive materially limiting its scope -see Article 3 of the Race Directive. Its significance, he submits, is that the rules relating to discrimination contained in the Race Directive apply only where the Community otherwise has competence under the Treaty. The provisions of the Race Directive may therefore not be involved, either for the purpose of disapplying any provision of national law or for the purpose of interpreting it in cases in respect of which the Community has no competence -see Gingi.
41. Mr Cox submits that neither Article 13 of the Treaty nor the Race Directive apply only to discrimination in respect of other rights under EC law. Article 1 prohibits the beneficiaries from discriminating on racial grounds. The beneficiaries are not confined to citizens of the EU or to those who have exercised free movement rights. Directive 7917 of 19 December 1978 (on the progressive implantation of the principle of equal treatment for men and women in matters of social security) outlawed sexual discrimination on grounds of sex in the field of social security and is not applicable only when reliance is placed on other Community rights. Nowhere in Article 13 of the Treaty or in the Race Directive is it suggested that powers or rights are dependant upon the exercise of relevant community law rights. He characterised the phraseology "within the limits of the powers conferred [by the Treaty] upon the Community" in Article 13 of the Treaty and Article 3 of the Race Directive as words of political reassurance.
42. In my judgment, the words in Article 13 of the Treaty and Article 3 of the Race Directive set out in the last sentence of paragraph 38 above are not words of political reassurance. They occur in a legal context i.e. the Treaty and a Directive. Article 308 of the Treaty states:-

"If action by the Community should prove necessary to attain, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures."

Article 230 of the Treaty provides that the ECJ shall review the legality of acts by, inter alios, the Council (who make the Directives). Indeed a prime example of the exercise of Article 308 (formally Article 235) was the Council Directive 79/7 re sex discrimination. One of the recitals to that Directive says:-

"Having regard to the Treaty establishing the European Economic Community, and in particular Article 23 5 thereof. …. "

43. I agree with Mr Cox that the language of the Race Directive is very wide. It does apply to social security (Article 3. 1. (e)). Article 2 states it to be without prejudice to provisions relating to entry of third-country nationals.
44. However, I agree with the submissions of Mr Howell that this is not a case where the EU has competence. The Claimants, like Mrs Gingi, who was a British citizen (who had come from Cyprus), are in the words of Schiemann LJ "outsiders." The Claimants, British citizens, were habitually resident in Mauritius immediately prior to their arrival in the UK just as Mrs Gingi was habitually resident in Cyprus. In my judgment this case does not fall within the Community legal order for the reasons advanced by Mr Howell.
45. Accordingly, in my judgment, the Race Directive cannot be used as an aid to interpret S. 41 (2) of the RRA nor can it be said to displace or disapply S. 41 (2).
46. Mr Cox relies upon provisions of the European Convention on Human Rights only if I reject his submissions on S. 41 (2) of the RRA and on the Race Directive. As I have rejected them, I now turn to his case under the ECHR.
47. Mr Cox relies on Article 14 taken in conjunction with Article 1 of the First Protocol.

Article 1 provides:-

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

Article 14 of the ECHR provides:-

"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."

48. The foundation of Mr Cox's submissions under these Articles is the decision of the Grand Chamber of the European Court of Human Rights on 6 July 2005 in Stec v. UK No 65731/01. Before I turn to that case it is to be noted that the JSA can be categorised as a non-contributory scheme. As Carnwath LJ in Esfandiari and others v. Secretary of State for Work and Pensions [2006] EWCA Civ 282 said at paragraph 27, it has long been accepted that state benefits under a contributory scheme are within Article 1 of FP, and that Stec had "...resolve[d] previous doubts by holding that non-contributory benefits were to be treated in the same way."
49. At paragraphs 54 and 55 of Stec the Grand Chamber said:-

"54. It must, nonetheless, be emphasised that the principles, most recently summarised in Kopecky v. Slovakia [GC], no. 4491 2/98, 35, ECHR 2004-IX, which apply generally in cases under Article 1 of Protocol No. 1, are equally relevant when it comes to welfare benefits. In particular, the Article does not create a right to acquire property. It places no restriction on the Contracting State's freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any scheme (see, mutatis, mutandis, Kopecky [GC], 35 (d)). If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit - whether conditional or not on the prior payment of contributions -that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (ibid).

55. In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or parts of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question (see Gaygusuz, and Willis, also cited above, 34). Although Protocol No. 1 does not include the right to receive a social security payment off any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14."

50. In Esfandiari Carnwath LJ, with whose judgment Tuckey and Jacob LJJ agreed, said that Stec was inconsistent with a previous decision by the Grand Chamber only a few months before, namely Von Maltzan v. Germany [2006] 42 EHRR SE ll. But he went on to say in paragraph 29 that it would be for the ECHR to resolve the conflict and that that was no reason to depart from Stec in that case. The Court of Appeal itself, therefore, did not seek to resolve the conflict.
51. Mr Howell submitted that prior to Stec it was clear that a claim by an individual to JSA or for housing under the homeless legislation was not something that fell within the ambit of "possessions" (Article 1 FP) for the purposes of Article 14 (ECHR). Wilson v. First County Trust Ltd [2003] UKHL 40, [2004] 1 AC 854, per Lord Hope of Craighead at paragraph 106 and per Lord Scott of Foscote at paragraph 168, held that Article 1 FP confers no right to acquire any "possession". It is directed to existing possessions or property rights.
52. Further, Lord Hoffmann said at paragraphs 11 and 12 in R (Carson) v. Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173, decided on 26 May 2005 and thus before Stec:-

"11 Does the discrimination of which Ms Carson complains fall within these limits? She says that her right to a pension is a "possession" within the meaning of article 1 P of Protocol 1 ("1P1") which protects the right to peaceful enjoyment of possessions. The state is therefore not entitled to discriminate in according her that right. I must confess that my first instinct would not be to regard a social security benefit like a state pension as a possession until it had actually fallen due. But the European Court has developed a somewhat artificial jurisprudence on this question. It has clearly felt frustrated by the need to find a Convention pigeon hole into which to fit every objectionable form of discrimination. Social security benefits are a good example. In principle it does not seem at all unreasonable that in distributing public money in the form of social security benefits, the state should be obliged to treat like cases alike, although, as we shall see, there may be differences of opinion over what makes cases relevantly different. But the virtual absence of economic rights in the Convention has made it difficult to relate this principle to the enjoyment of any specified right.

12 The preferred choice of the Strasbourg court in locating a Convention right in cases of economic discrimination by the state has been 1 P1. In Müller v Austria (1 975) 3 DR 25 the Commission said that a claim to contributory benefits was a "possession" by analogy with the proprietary right of a contributor to a private pension fund. This case has since been regularly followed: see, for example, Gaygusuz v Austria (1997) 23 EHRR 364, 376, para 47. But the analogy is weak because (at any rate in the United Kingdom) contributions are hardly distinguishable from general taxation, the "fund" exists purely as a matter of public accounting and no one is entitled to anything beyond that which the legislation may from time to time prescribe. The Strasbourg court has been obliged to accommodate this state of affairs by saying that although a claim to a social security benefit is a possession (thereby attracting article 14) it does not entitle one to anything in particular: see, for example, Jankovic v Croatia (2000) 30 EHRR CD183. Recently a section of the court appears, paradoxically, to have regarded the weakness of the analogy between many state contributory schemes and a private pension scheme as a reason enlarging rather than restricting the scope of 1P1, treating it as applicable to all social security benefits whether contributory or non-contributory: see Koua Poirrez v France (2005) 40 EHRR 34, 45, para 37. Your Lordships were told that this question would shortly come before the Grand Chamber in Hepple v United Kingdom (App Nos 6573 1/01 and 65900101) but, as this case is concerned with contributory benefits, it is unnecessary to say anything more about it. I am content to assume that Ms Carson's pension rights were a possession."

53. In Campbell v South Northamptonshire D C [2004] EWCA Civ 409, [2004] 3 All ER 387, the issue in question arose under Regulation 7 of the Housing Benefit (General) Regulations 1987. The Social Security Commissioner had held that the agreements pursuant to which the appellants occupied their dwellings were "not on a commercial basis"(see Regulation 7), so they were to be treated as if they did not have to pay rent and thus were not entitled to housing benefit. Mr Goudie QC, for the appellants contended that their removal from their previous entitlement to housing benefit amounted to a "deprivation of possession" within Article 1 FP.
54. The Court of Appeal rejected that submission -see paragraphs 31 to 39 of the judgment of Jacobs LJ and paragraphs 61 of the judgment of Peter Gibson LJ. Thus, in my judgment, unless this case can be distinguished, it is binding upon me as to non-contributory benefit schemes not being with the ambit of Article 1 FP; and that is despite Stec -see Kay v. Lambeth LBC [2006] UKHL 10, 2006 2 WLR 570 where the House of Lords held that a court must follow a binding domestic authority even if inconsistent with an ECHR authority. Mr Howell accepts that Stec has abolished the distinction between contributory and non-contributory social security benefits.
55. Mr Cox was bold in his submission. He said that Stec had swept Campbell away. I am not so sure. As Carnwath LJ pointed out in Esfandiari there are problems with Stec. Furthermore, the dicta of Lord Hoffmann in Carson and the dicta of Lord Hope and Lord Scott in Wilson are very strong. I do not think it is therefore possible to say that Stec has swept all before it. In my judgment, I, as a first instance judge, am bound by Campbell. That case may have been dealing with different regulations but the crucial point is that housing benefits and income based JSA are non-contributory and thus do not come within Article 1 FP. I further agree with Mr Howell that homelessness assistance does not fall within the ambit of Article 1FP. In any event that issue is of no practical significance since the Claimants were found not to be in priority need.
56. Mr Cox further submitted that the discrimination in this case comes within the ambit of Article 8 of the Convention.
57. In this respect of the matter I start with an extract from the judgment of Carnwath LJ in Esfandiari which gives a helpful resume of the various authorities between paragraphs 19 and 22 inclusive. He said:-

"Were the facts within the ambit of a substantive article?

19. In view of the detailed submissions made to us, I will comment briefly on the other main issue, although it is unnecessary for a decision on the appeal.

20. The general principle is not in doubt. Article 14 has no independent life:

"...Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to 'the enjoyment of the rights and freedoms' safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions -and to this extent it is autonomous-there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter." (Petrovic v. Austria (200 1) 33 EHRR 14, at [22]; emphasis added).

The question therefore is whether the facts can be brought "within the ambit" of one of the other articles. As I have said, those relied on are Article 8 and Article 1P. (Article 9 was relied on before the Commissioner, but was not pressed before us.)

Article 8 and Article 14

21. Mr Petrovic's case also provides the starting-point for the consideration of Article 8. He had complained of the Austrian authorities' refusal to award him a parental leave allowance. The relevant Austrian legislation only permitted this allowance to be paid to mothers. The Court held that the allowance fell within the ambit of Article 8, but that the discrimination was justified. As to "ambit" it said:

"26...the Court...considers that the refusal to grant Mr Petrovic a parental leave allowance cannot amount to a failure to respect family life, since Article 8 does not impose any positive obligation on States to provide the financial assistance in question.

27. Nonetheless, this allowance paid by the State is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to, stay at home to look after the children.

28. The Court has said on many occasions that Article 14 comes into play whenever "the subject-matter of the disadvantage ... constitutes one of the modalities of the exercise of a right guaranteed" (see the National Union of Belgian Police v Belgium judgment of 27 October 1975, Series A no. 19, p. 20, § 45), or the measures complained of are "linked to the exercise of a right guaranteed" (see the Schmidt and Dahlstrom v Sweden judgment of 6 February 1976, Series A no. 2 1, p. 17, § 39).

29. By granting parental leave allowance States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the allowance therefore comes within the scope of that provision..."

22. Since the hearing of this appeal, the House of Lords has handed down its decision in Secretary of State v Work and Pensions v M [2006] UKHL 11, which supports a narrow approach to this question. It is sufficient to quote the leading speech of Lord Walker, who after a detailed review of the Strasbourg case-law on this issue, concluded:

"82. Ms Monaghan submitted that since the concept of respect for private and family life is so wide and multifaceted, your Lordships should be ready to conclude, in considering a complaint under article 14, that any alleged act of discrimination is within the ambit of article 8. But if that were right virtually every act of discrimination on grounds of personal status (gender, sexual orientation, race, religion, and so on) would amount to a breach of article 14, since these are all important elements in an individual's private life. There would be little or no need for the wider prohibition in article 1 of the Twelfth Protocol on discrimination in the enjoyment of any legal right.

83. My Lords, in my opinion that is not the effect of the Strasbourg case law which I have attempted to summarise. The ECHR has taken a more nuanced approach, reflecting the unique feature of article 8 to which I have already drawn attention: that it is concerned with the failure to accord respect. To criminalise any manifestation of an individual's sexual orientation plainly fails to respect his or her private life, even if in practice the criminal law is not enforced (Dudgeon; Norris); so does intrusive interrogation and humiliating discharge from the armed forces (Smith and Grady; Lustig-Prean and Beckett). Banning a former KGB officer from all public sector posts, and from a wide range of responsible private-sector posts, is so draconian as to threaten his leading a normal personal life (Sidabras and Dziautas). Less serious interference would not merely have been a breach of article 8; it would not have fallen within the ambit of the article at all.

84 Similarly the cases in which article 14 has been considered in conjunction with the family life limb of article 8 were all (whichever way they were ultimately decided) concerned with measures very closely connected with family life: Petrovic (parental leave); Estevez (social security benefit for surviving spouse); Frette (adoption). By contrast Logan (the CSA case) is an example of unsuccessful reliance on a much more remote link (financial resources to visit absent children)."

58. Mr Cox submits that discrimination in respect of social security benefits was within the ambit of Article 8. He relied on Petrovic (parental leave allowance), Esfandiari (denial of funeral payment) and Regina (Morris v. Westminster City Council [2005] EWCA Civ 1184, [2006] 1 WLR 505, in which Sedley LJ said at paragraphs 23 -25:-

"23. There is a tenable sense in which each side of this argument is correct. The Housing Act, as its name suggests, is concerned with a large range of housing issues. Part VII of it is concerned with a range of people, not necessarily forming part of a residential family, in need of housing. In this sense we are looking at social welfare legislation, and social welfare as such is not -or not necessarily -within the ambit of art.8. But when the focus is narrowed to the provisions in issue in this case, we find ourselves looking at measures which are designed specifically to keep families together. There can in my judgment be no question that this is, in the parlance of Strasbourg, a modality of the state's manifestation of respect for family life. If so, it is within the ambit of art.8.

24. To which, then, is the "ambit" test to be applied? The answer has to start from the claimant's challenge, which is not to the legislation as a whole or to Part VII as a whole but to the specific provision of S. 185(4) which denies her priority in securing accommodation for herself and her daughter because of the daughter's immigration status. If an incompatibility of this provision with the Convention could not be established without impugning the larger system of which it forms part, and if that larger system fell outside the ambit of any Convention right, the appellants' case ought to prevail. If, contrariwise, the particular provision can properly be isolated, in terms of its effect and in relation to the declaration which is sought, from the larger scheme of which it forms part, its character may well differ. That, in my judgment, is this case. The material provision, which plainly has as its main purpose the preservation of family units, functions within but is not integral to the larger legislative scheme of social welfare. Put another way, if it is non-compliant with the Convention, the failing can be addressed without calling in question the rest of the legislation.

25. I would accordingly hold, in agreement with Keith J, that the provision made by S.185 is within the ambit of art.8 of the Convention because, albeit within a larger social welfare measure, it sets out to give effect to a legislative policy of preserving family life for the homeless. The fact that, as Mr Warner points out, it does not apply to all homeless families -those deemed to be intentionally homeless, for example, are excluded -does not appear to me to matter, any more than it matters that others who do not form part of families are likewise excluded on ground of nationality. We are concerned with the specific provision which excludes a potentially eligible parent from being accommodated with her dependent child, that is to say accommodated as a family, on what is said to be the ground of the child's national origin."

Parker and Auld LJ agreed with Sedley LJ on this particular issue.

59. Thus Mr Cox submits that the denial of JSA and/or homelessness assistance comes within the ambit of Article 8. JSA would provide the money for the family to buy food and other necessities of life. Homelessness assistance is a vehicle to house a family, whether there are children or not.
60. Mr Howell submits that Article 8 does not require the provision of accommodation and the means of support. No such duty can be spelled out of Article 8. It is a right to "respect" for one's private and family life not "a right to privacy or to family life, or to a home" per Lord Walker of Gestingthorpe at paragraph 62 of M. Laws LJ, in Carson [2003] EWCA Civ 797, [2003] 3 All ER 577, with whom Rix and Simon Brown LJJ agreed, said:-

"26. Mr Gill submits that the facts, which I have already outlined, disclose circumstances of such marked hardship suffered by Ms Reynolds that the levels of jobseeker's allowance and income support received by her fall readily within the ambit of Article 8. While of course we must not lose sight of the fact that there is no complaint here of any violation of Article 8 read on its own, it is in my judgment important to recognise that on the Strasbourg learning Article 8 does not require the State to provide a home: Chapman v UK (2001) 33 EHRR 18, paragraph 99; nor does it impose any positive obligation to provide financial assistance to support a person's family life or to ensure that individuals may enjoy family life to the full or in any particular manner: Vaughan v UK (1987) Application No 12639187; Anderson and Kullmann v Sweden 46 DR 25 1 ;Petrovic v Austria [2001] 33 EHRR 14, paragraph 26.

27. At the same time the European Court of Human Rights has accepted that there may be circumstances in which Article 8 imposes a positive obligation upon States to take steps to secure or to further respect for the home or family life. In this territory, however, the States enjoy a wide margin of appreciation: Abdulaziz & ors v UK (1 985) 7 EHRR 47 1, paragraph 67. It is also true that in establishing a system or regime to comply with a Convention obligation, a State may include within the system elements that are not strictly required by the Convention itself, as in the case of appeal rights in the context of Article 6; and where that is done, the distribution of these supererogatory rights must comply with Article 14: Belgian Linguistics (No 2) (1 968) 1 EHRR 252, 283.

28. In the present case I am clear that the provision of jobseeker's allowance and income support has not been made by the United Kingdom legislature and executive out of compliance with any actual or perceived positive obligation arising under Article 8. Such positive obligations may arise where there is a "direct and immediate link between the measures sought by an applicant and the latter's private and/or family life": Botta v Italy (1 998) 26 EHRR 241, paragraph 34. Recognised instances include circumstances where the criminal law is required to offer protection for family life against particular dangers (see again Botta, paragraph 34). But they cannot, in my judgment, extend to include whole swathes of a State's social security system without embracing that system within the general duty vouchsafed by Article 8. That, however, would be contrary to the learning to which I have referred in paragraph 26.

29. Mr Gill's argument as to the ambit of Article 8 cannot in my judgment be limited to the particular circumstances of Ms Reynolds' case. I do not mean to belittle her undoubted difficulties, but it is clear that like difficulties are common to many people in receipt of benefit. Mr Gill's submission, if correct, would in principle subject the general welfare provisions made by the State to the requirements of Article 8 and of Article 14 read with Article 8. That is not the law. There is nothing in this argument."

61. In my judgment the key to this particular dispute lies in a passage at paragraphs 71 -76 of the judgment of Sedley LJ in Langley v. Bradford MBC [2004] EWCA Civ 1343, [2005] 2 WLR 740. The Court of Appeal held that in order to determine whether Mrs Langley's Convention rights were engaged it was the particular provision complained of rather than the entire housing benefit scheme which had to be examined and that the particular provision was directed against abuse of the system.
62. Sedley LJ said:-

"Is the rule within the ambit of a Convention right?

70. This means that one has to go back to the beginning.

71. Is the measure then within the ambit of art 8? If the question is posed in relation to the housing benefit system as a whole, plainly it is: its whole purpose is to keep a roof over the head of people who would otherwise be unable to afford it -in other words, it is to give substance to the state's respect for the home. If it is posed in relation to regulation 7(l)(c)(i), the converse is true: the object is to prevent abuse, and the discriminatory meaning of 'partner' -though not confined to this regulation -operates outside any Convention right. Mr Sales founds on the latter, Mr Drabble on the former.

72. I do not think that Mr Sales' argument is assisted by the passage he relies on in the judgment of Laws LJ in Carson's case (above), §25-9. It is of course right that the ambit of art 8 "cannot ... extend to include whole swathes of a state's social security system" and does not embrace "the general welfare provisions made by the state". But the housing benefit scheme is a discrete scheme with a particular purpose that does lie within art 8. The question is whether Mr Drabble can properly narrow the issue from the scheme as a whole to the particular regulation.

73. Mr Drabble puts his case in the first instance on art 8 alone. In other words, he submits that the chosen 'modality' of respect for Ms. Langley's home, namely the provision of benefit to help pay the rent falls within the ambit of art 8 and is being withheld from Ms. Langley on a ground which has no objective justification and which violates art 14 since it would not apply if her sexuality were different.

74. In my judgment it is not the entire scheme but the specific anti-abuse provision which has to be examined. My reason for so deciding is one which has featured only marginally in argument, but which seems to me to provide a rational criterion to which the only alternative is intuition. By s.7(1) of the Human Rights Act -

A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may…bring proceedings…or…rely on the Convention right or rights concerned but only if he is (or would be) a victim of the unlawful act.

The use of the concept of a victim to afford standing domestically derives from the provision of art 34 of the Convention which limits standing in Strasbourg to persons or organisations or groups "claiming to be the victim of a violation" by a contracting state. The Act by s.7(7) ties the domestic meaning of 'victim' to its Convention meaning. The Court's jurisprudence shows it to be an autonomous term, requiring the complainant to be directly affected by the violation, whether actually or potentially, but not necessarily to have suffered by it. In Klass v Germany (1 978) 2 EHRR 214 the Court said:

"In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary to show that the law should have been [i.e. has been] applied to his detriment. "

75. It is therefore germane to ask whether Ms. Langley, assuming everything else in her favour, was a victim of the discriminatory effect of regulation 7. It seems to me that in order to rank as a victim Ms. Langley must be able to show that, if the regulation included same-sex couples, she would be in some appreciable way better off. This she plainly cannot do. To obtain a favourable answer it would be necessary to ask whether, if there were no such regulation at all, Ms. Langley would be better off. Naturally she would be. But what Ms. Langley would then be the victim of would not be the discriminatory element of the anti-abuse provision but of the provision itself, to which no Convention objection has been or could be taken.

76. This also answers the question whether it is the regulation or the entire scheme which has to be inspected for discrimination: for one has only to ask whether Ms. Langley is a victim of the housing benefit scheme as a whole to see that the question is meaningless. In other words, once the case is looked at on the footing that, to succeed, Ms. Langley must be a victim, it is only the particular discriminatory regulation which can come in question."

63. Thus, in the instant case, one must look at the regulations and/or legislation in the instant case and seek out the particular provision i.e. the habitual residence test. That test has nothing to do with promoting respect for private and/or family life. The schemes of JSA and homelessness assistance may generally be intended, at least in part, to respect private or family life. But the particular provision is not and cannot be said to be so intended. Accordingly, Mr Cox cannot bring this case within the ambit of Article 8 of the ECHR.
64. I now turn to a discrete point raised by Mr Okoya for the local authority. It is this. Even if the act of the local authority in denying the Claimants homelessness assistance on the ground that they were ineligible because they were not habitually resident in the UK could be said to be in breach of their rights under the ECHR, nevertheless section 6 of the Human Rights Act, 1998 ("HRA") provides the local authority with a complete defence. Section 6 of the HRA provides:-

"(1) It is unlawful for a public authority to act in a way which is incompatible with a convention right.

(2) Subsection (l) does not apply to an act if-

(a) as the result of one or more of the provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to those provisions"

65. Mr Okoya submits that the application by the local authority of the relevant regulations in the instant case was one to which it had no option but to give effect. It had to determine the Claimants' habitual residence. The Claimants were persons from abroad and were ineligible (s. 185 (1) of the HA 1996). If legislation cannot be read compatibly with Convention rights a public authority is not obliged to subvert the intention of Parliament by treating itself as under a duty to neutralise the effect of the legislation -see paragraph 51 of the speech of Lord Hoffmann in Regina v. Secretary of State for Work and Pensions ex parte Hooper and others [2005] UKHL 29. Mr Cox specifically concedes that the regulations cannot be read compatibly with the Claimants' Convention rights. It must therefore follow, submits Mr Okoya, that the acts of the local authority are and were immunised by S. 6 (2) (b) of the HRA. Lord Hoffmann said at paragraph 73 of Hooper:-

"73. The important point to notice about paragraph (b) is that the source of the discretion does not matter. What matters is (a) that the provisions in regard to which the authority has this discretion cannot be read or given effect compatibly with the Convention rights and (b) that the authority has decided to exercise or not to exercise its discretion, whatever its source, so as to give effect to those provisions or to enforce them. If it does this, this paragraph affords it a defence to a claim under section 7(1) that by acting or failing to act in this way it has acted unlawfully. In this way it enables the primary legislation to remain effective in the way Parliament intended. If the defence was not there the authority would have no alternative but to exercise its discretion in a way that was compatible with the Convention rights. The power would become a duty to act compatibly with the Convention, even if to do so was plainly in conflict with the intention of Parliament."

66. Mr Cox valiantly strove to counter this submission. As I understand him, he does not concede that the primary legislation is incompatible but does concede that the regulations are. He said that no discrimination was mandated by the HRA. However, since the primary legislation and the regulations both refer to persons from abroad as being ineligible (for homelessness assistance), if the regulations are incompatible, then I do not understand why the primary legislation, i.e. section 185, is not as well. But in any event section 6 (2) (b) of the HRA applies to ". . .provisions.. . made under, primary legislation...." into which category the relevant regulations plainly fall. Thus it must be that the local authority is immunised in this respect. I accept Mr Okoya's submissions.
67. Thus, I conclude that Mr Cox has failed to establish any unlawfulness either under the RRA, the Race Directive and/or the ECHR. Strictly speaking it is therefore unnecessary for me to go further and resolve the issue of justification or irrationality. However, I think it would be churlish and unhelpful of me not to give my opinion on the detailed submissions of Counsel.
68. The provision of the RRA which impact on the point are to be found in section 1 (1A). If the complaint in the instant case is not covered by S. 41 (2) it is for the Claimants to show that the habitually residence test involves applying:-

(a) a provision which puts or could put persons of the same race or ethnic or national origins as them at a particular disadvantage when compared with other persons, and

(b) a provision which puts the Claimants at that disadvantage.

If the Claimants satisfy those two matters, it is then for the Secretary of State/local authority to show that that "provision, criterion or practise" is a proportionate means of achieving a legitimate aim -see S. l (1A) (c).

69. I am prepared to assume for the purposes of this part of the case that the Claimants have established a) and b). The argument in this case has raged around the issue of justification and it would seem appropriate to take that issue in the context of the Claimants having satisfied a) and b).
70. The evidence on this point is to be found in a statement of Ms Katherine Fleay, the Team Leader of the People from Abroad Team in the Jobseeker Support Division within Jobcentre Plus, of 8 September 2005, and of Mr Neil O'Connor of the Office of the Deputy Prime Minister, of 12 August 2005. Mr O'Connor is the Head of the Homelessness Policy and Legislation Division.
71. The purport of Ms Fleay's evidence is as follows. A person from abroad is ineligible for income related state benefits. The habitual residence test was made a normal condition for income support, housing benefit, and council tax benefit in August 1994. It was extended to JSA and to State Pension Credit when these benefits came into force in October 1996 and October 2003 respectively. The habitual residence test was introduced to narrow access to benefits to exclude those whom the Government believed the taxpayer should not be asked to support and was devised to make the benefits conditional on a claimant having a sufficient link with the UK i.e. which demonstrates that his centre of interest lay in the UK or that he has the intention of establishing residence in the UK. Furthermore, a concomitant was to curb abuse of the benefit system particularly from EEA nationals.
72. The Secretary of State, Ms Fleay said, has always recognised that the habitual residence test will inevitably affect British citizens, in particular those returning to the UK after a long period of absence may be held not to be habitually resident, as may those British citizens who have been born abroad and have never lived in the UK. But previous and current Governments have accepted this as the price to be paid to afford UK taxpayers some protection against exploitation of the benefit system.
73. Parliament has considered whether an exception should be made to the habitual residence test for those who have the right to live in the UK without immigration leave. On 27 April 1999 it was proposed, during the Committee stage in House of Commons of the Welfare Reform and Pensions Bill, that a new clause be added into the Social Security Contributions and Benefits Act, 1992, to the effect that regulations were not to treat a person in Great Britain and who had the right to live in Great Britain without immigration leave, as not being in Great Britain irrespective of where he is habitually resident or ordinarily resident. The Committee voted against the proposed clause. On 20 July 1999 an identical amendment was rejected by the House of Lords.
74. Between paragraphs 22 and 34 of her statement inclusive Ms Fleay gives an account of the CTA. I shall try and summarise what she says concisely. Until 1921 the territory now forming the Republic of Ireland was part of the United Kingdom. The proximity of the British Islands, one to another, has historically given rise to strong social economical and links. There is a strong and extended Irish community in the UK which maintains their links with Eire. The existence of the CTA enables its inhabitants to move freely and regularly from one part to another and back again. The CTA, which comprises the UK, Channel Islands, Isle of Man, and Eire, emerged in the 1920s. Thereafter the Aliens Order 1953 was the first provision to introduce that term. The CTA was put on a full statutory basis by the Immigration Act, 1971.
75. When the Government first proposed the habitual residence test in 1994 it intended to limit access to income related benefits to people who were habitually resident in the UK only. However the Irish Government made strong representations to the UK Government. There were a substantial number of Irish living in the UK who would be affected. Furthermore, an independent body, the Social Security Advisory Committee reported in April 1994 that there was a large and extended Irish community in the UK estimated at between 3 and 5 million people, that the Irish enjoyed a special status in the UK (they might vote, stand in elections, and were eligible for jury service), that by long tradition many Irish people came to work in the UK, that many sought to maintain their family and cultural contacts with Ireland, and that many Irish people were in relatively insecure jobs such as construction, domestic and catering work.
76. Having considered these representations and reports the Secretary of State in 1994 decided to broaden the test so that people habitually resident within the CTA, rather than just the UK, could be eligible for income related benefits. Thus, Ms Fleay said at paragraphs 30 and 3 1 :-

"30. In deciding to adapt the habitual residence test to the CTA, the Secretary of State recognised that to move from a situation in which the Irish had had unfettered access to income-related benefits to one in which they would first have to prove habitual residence in the UK could have had serious effects on the mobility of labour between the two countries and on broader Anglo-Irish relations.

31. The historical and continuing close ties between the peoples of Ireland and the UK, together with their geographical proximity, had given rise over the generations to an integrated labour market across the CTA, in which there were no restrictions regarding immigration status, residence or access to work. Indeed, it is possible for a person to live in the Republic and work in Northern Ireland (or vice versa). This arrangement had been mutually beneficial in economic terms; and the Government of the day did not wish to disturb it. Over time, a pattern had arisen of many former residents in Ireland coming to the UK to seek work; but, given the existence of the common labour market (and perhaps because of the nature of the work they sought -e.g. in the construction industry), they did not for the most part secure stable employment before arriving in the UK. If they had been no longer able to claim income-related benefits on arrival, the integrated labour market between Ireland and the United Kingdom could have been undermined. Irish people were also more likely to be unemployed, intermittently at least, than British people, as Irish men appeared more likely to be concentrated in unstable, seasonal employment sectors, such as construction or manual work. They were therefore less likely to have a history of long-term stable employment or to have permanent accommodation or immediate family in the UK that would have supported a view that they were habitually resident here. Concern therefore arose that people who moved back and forth between Ireland and the UK might find themselves habitually resident in neither the UK nor Ireland. There was concern that, if the habitual residence test disrupted the historical flow of people between the UK and Ireland, there would be ramifications for Anglo-Irish relations beyond social security issues."

77. Next, she dealt in her statement with exemptions from the habitual residence test. At paragraphs 35, 36 and 37 she said:-

"35 . People in the following groups are not treated as persons from abroad, even if they are not yet habitually resident, irrespective of their individual circumstances:

a. workers for the purposes of Council Regulations (EEC) No 16 12/68 or (EEC) No 125 1/70 and people with the right to reside in the UK under Council Directives No 68/360/EEC or No 73/148/EEC and certain workers from the states which have recently acceded to the European Union;

b. refugees;

c. those who have been granted exceptional leave to enter or remain in the UK;

d. people who have been deported, expelled or otherwise removed by compulsion of law from another country to the UK (unless they fall within the categories of claimant who are subject to immigration control under section 1 15(9) of the Immigration and Asylum Act 1999).^[4][5]

36. With the exception of the category of certain workers from new accession states to the European Union, groups (a), (b) and (c) mentioned above have always been exempt from the habitual residence test. Group (a) was exempted in line with rights under EC law. Groups (b) and (c) were exempted following a recommendation by the Social Security Advisory Committee in April 1994.^[6]According to the Secretary of State's statement in July 1994, there had never been any intention that refugees and those granted exceptional leave to remain in the UK should be affected by the test.^[7] Group (d) was added in April 2000 to the list of people exempt from the test ^[8] as a result of the review of the habitual residence discussed above. ^[9]

37. The Secretary of State has also considered on a number of other occasions making exceptions to the habitual residence test for particular groups. However, the Secretary of State has only made such an exemption on one occasion -that relating to Montserrat in July 1996. To decide whether an exemption should be made, the Secretary of State has always considered whether objective reasons exist which justify the preferential treatment of a particular group. To do otherwise would undermine the ability of the Secretary of State to distinguish between groups on a principled basis. A lack of a principled basis could result in either a successful challenge to the test by other groups or lead to the Secretary of State having to accept a large number of groups as "exceptional" cases. Either result would undermine the efficacy of the habitual residence test and thus the Government's policy of narrowing access to benefit. This would run counter to Ministers' policy of reinforcing the habitual residence test and tightening controls on access to income-related benefits at a time of EU enlargement."

78. As she explained in paragraph 38 the exception for the people of Montserrat was made because of the extreme physical dangers facing people there. In July 1995 the volcano on Montserrat began to erupt. The capital and most of the south of the island were evacuated. Montserrat was a British Dependant Territory. By mid 1996 the danger was so acute that the UK Government offered assistance to those who wished to leave. In July 1996, as one of the measures of assistance, the Government exempted from the habitual residence test those who left after 1 November 1995 because of the effect of the volcanic eruption. From mid 1996 eruptions continued. Two-thirds of the island is still an "exclusion zone".
79. There have been cases, where the Government has continued making exceptions, but denied that there was no sufficient justification. e.g. the eviction of farmers from their farms in Zimbabwe and the evacuation of British citizens from the Ivory Coast to Ghana in 2004.
80. Between paragraphs 45 and 53 inclusive Ms Fleay explains why the Chagossians have not been exempted from the habitual residence test. Since this is a central part of the Secretary of State's case it would be fair to set the paragraphs out verbatim (I have included the footnotes in her statement):-

"The Ilois in comparison to these exemptions

45. Most of the "Chagossians" or Ilois have possessed British citizenship and hence a right of abode in the UK since the coming into force of sections 3 and 6 of the British Overseas Territories Act 2002 on 21 May 2002. It is only since then that they have not been subject to immigration control and that they have been able to come to the UK without gaining prior permission. It is understood that generally those who are British citizens by virtue of their connection with the Chagos Islands and who are living in Mauritius are also Mauritian citizens.

46. It is not known precisely how many may be British citizens; but, as a general indication, some 4,466 Ilois were claimants^[10] in Chagos Islanders v The Attorney-General.^[11] As at 2 1 June 2005,938 Ilois have been issued with UK passports in Port Louis since May 2002. ^[12]

47. The Secretary of State for Work and Pensions received less than a week's warning that any Ilois would be migrating to the UK before the first group arrived in September 2002. The first group was accommodated and supported for the first few months by West Sussex County Council, as was the second group which arrived in March 2003. By the time the County Council's support ceased, these groups had already been found to be habitually resident. Consideration was nevertheless given then and on subsequent occasions to the possibility of making an exemption from the habitual residence test for the Ilois. That option was, however, rejected because it was considered that there were no sufficient reasons which would justify giving the Ilois preferential treatment.

48. In considering whether to make an exemption from the habitual residence test, the Secretary of State has taken into account the circumstances in which the group seeking exemption left their previous country of residence. The conditions faced by the Ilois in Mauritius have never appeared to the Government to be anywhere near to being comparable with those faced by the people in Montserrat. The Ilois are not exposed to physical danger and are not compelled to leave their homes in Mauritius. British citizens in Zimbabwe and the Ivory Coast have, in the view of Ministers, faced more immediate physical danger than the Ilois and yet even that was not considered sufficient to justify an exemption from the habitual residence test.

49. It is not accepted that all those living in Mauritius who are British citizens by virtue of some connection with the Chagos Islands are without means to support themselves. Moreover, information made publicly available by the Mauritian Ministry of Social Security, National Solidarity and Senior Citizens Welfare and Reform Institutions,^[13] to which the Ilois, like other Mauritians, have access,^[14] indicates that there are a range of benefits available in the Republic of Mauritius. In particular, the Mauritian Government provides a number of non-contributory benefits. These include Social Aid, which comprises a Child's Allowance, Rent Allowance and Funeral Grants. There also appear to be benefits payable under the Unemployment Hardship Relief Act. Unemployment Hardship Relief is said to be payable to an unemployed person with family responsibility where the income of the household is not sufficient to meet the needs of the members of the household. There are additional requirements that the claimant should be registered as unemployed and actively seeking work. There are allowances relating to Unemployment Hardship Relief including Child's Allowance and Rent Allowance. In addition, benefits are payable under the Family Allowance Act where the household income is below a certain amount and where the household has at least three children less' than 15 years of age. Other non-contributory benefits provided by the Government of Mauritius include a basic retirement pension, widow's pension, invalid's pension, orphan's pension and guardian's allowance. There is nothing to indicate that there is any discrimination between Mauritian citizens as regards access to these benefits.^[15] The British High Commission in Mauritius understands that there is also free health care in Mauritius, providing all Mauritians with access to public doctors, public hospitals and medicines, regardless of race or financial means and that the Mauritian Government now provides compulsory free education to all children up to the age of ^[16].

50. Ilois who have arrived in the UK from Mauritius have claimed to be destitute. However, Ministers have not considered destitution abroad alone to be sufficient justification to make an exemption from the habitual resident test.

a. It is not generally the UK Government's policy to encourage people who may be living in poverty abroad to move to the UK to benefit from a higher level of social assistance than is available in their country of origin.

b. The Ilois who arrived in September 2002 arrived at much the same time as British citizens from Zimbabwe who arrived destitute, having had to leave property and possessions behind. No exemption was made for the latter.

51 .Unlike in the case of the Montserratians, it has also never been the Government's policy to encourage the Ilois to come to the UK to settle here. Instead, the UK Government made significant payments in 1973 and 1982 to help the Ilois to re-settle on Mauritius and become integrated into Mauritian society.16 Before Mauritius attained independence it was agreed with the then Mauritian Government in 1965 that the Chagos Islands would be excised from Mauritius (of which the Islands were a Dependency) and that the British Government would meet the Mauritian Government's cost of resettling any persons displaced from the islands. In 1973, in discharge of that obligation, the British Government paid the amount requested by the Mauritian Government to meet their costs of resettling those displaced from the Chagos Archipelago since 1965 and those who were yet to come. In 1982 a further payment of £4 million was made by the UK Government to assist with the resettlement of the Ilois in Mauritius as viable members of the community there. That money, together with land to the value of £1 million provided by the Government of Mauritius, was vested in the Ilois Trust Fund to be disbursed in promoting the economic and social welfare of the Ilois and of the Ilois community in Mauritius. Thus, the UK Government's policy has been to assist the integration of the Ilois into Mauritian society, rather than their migration to the UK.^[17]

52, Substantial disbursements from the Ilois Trust Fund were made to individual Ilois in 1982 and 1983. The assets of the Ilois Trust Fund were subsequently transferred in 1999 to the Ilois Welfare Fund. The Ilois Welfare Fund Act 1999 states, at section 4, that the objects of the Ilois Welfare Fund are to:

"(a) advance and promote the welfare of the members of the Ilois community and their descendants in Mauritius;

(b) develop programmes and projects for the total integration of the members of the Ilois community and their descendants into the island of Mauritius;

(c) take over and manage the assets, and discharge the liabilities of the Trust Fund which are transferred to it under this Act, and to manage and apply the immovable property and funds vested in it to further the social and economic welfare of members of the Ilois community and their descendants in Mauritius;

(d) maintain and manage the Ilois Community Centres of Pointe aux Sables and Tombeau Bay and other community facilities vested in it for the benefit of the members of the Ilois community and their descendants. "^[18]

Further information about the application of funds from the Ilois Welfare Fund is provided in the Report of the Board of the Ilois Welfare Fund for the period ending 30 June 2004, which is exhibited to this statement.^[19] For example, the Ilois Welfare Fund pays funeral grants in respect of deceased members of the Ilois community and provides financial assistance to children who are studying.

53. A subsidiary concern for Ministers has been that making an exemption for the Ilois would encourage more to leave Mauritius and migrate to the UK, without having a job to come to or the means to support themselves. Given that few of the new arrivals speak English or have other skills which are in demand in the UK labour market, it may take some time for them to find employment, notwithstanding the efforts of the Crawley office of Jobcentre Plus to match them to local vacancies."

81. Mr O'Connor's statement is much shorter than Ms Fleay's but, broadly speaking, makes much the same points in relation to the habitual residence test and homelessness assistance as Ms Fleay does in respect of JSA. In addition he said that demand for social housing far exceeds the available supply in many parts in England, particularly in London and the South East. Access to social housing, and homelessness assistance, should be restricted to applicants who can demonstrate a genuine commitment to the UK.
82. One might ask the rhetorical questions at this stage -why does not all that Ms Fleay and Mr O'Connor say show that habitual residence test is a proportionate means of achieving a legitimate aim? Or, why what they say fails to show rationality, whether or not one may agree with it?
83. Mr Cox would answer my rhetorical questions, as I understand his submissions, in this way. The Claimants do not dispute that a test of habitual residence in the United Kingdom would be a proportionate means of achieving a legitimate aim in that such a test would secure that benefits are prohibited for those whom the Government legitimately considers should not be supported by the UK taxpayer i.e. those who have not shown a genuine commitment to settling in the UK, regardless of nationality. The issue here, Mr Cox submits, is whether the particular territorial scope of the test (i.e. CTA) and the related refusal to make an exemption for the Chaggossians is justified by its adaptation to the CTA reflecting the long and close links between Ireland and the UK in all the aspects Ms Fleay has described. In particular, the Chagossians have been exiled from their homeland by the very body, the UK Government, which denies them JSA and homelessness assistance in England. I shall return to Mr Cox's submissions more fully in due course.
84. I summarise Mr Howell⁷s submissions as follows:-

(1) The habitual residence test is a proportionate means of achieving a legitimate aim. It is one designed to ensure that benefits are not provided to those whom the UK Government legitimately considers should not be supported by the taxpayer. The test is one consistent with EU Law, as the ECJ and the Court of Appeal have found -see Case C -138/02 Collins v Secretary of State for Work and Pensions 23 March 2004 and Collins v Secretary of State [2006] EWCA Civ 376. The ECJ held, inter alia, that the right to equal treatment laid down in Article 48 (2) of the EC Treaty did not preclude national legislation which made entitlement to JSA conditional on a residence requirement in so far as that requirement may be justified on the basis of objective considerations that are independent of the nationality of the persons concerned and proportionate to the legitimate aim of the national provisions. Regulations 85 (4) of the 1996 Regulations was there in point. The Court said at paragraphs 66-73 inclusive:-

"67. The Court has already held that it is legitimate for the national legislature to wish to ensure that there is a genuine link between an applicant for an allowance in the nature of a social advantage within the meaning of Article 7(2) of Regulation No 1612168 and the geographic employment market in question (see, in the context of the grant of tideover allowances to young persons seeking their first job, D'Hoop, cited above, paragraph 38).

85. The jobseeker's allowance introduced by the 1995 Act is a social security benefit which replaced unemployment benefit and income support, and requires in particular the claimant to be available for and actively seeking employment and not to have income exceeding the applicable amount or capital exceeding a specified amount.
86. It may be regarded as legitimate for a Member State to grant such an allowance only after it has been possible to establish that a genuine link exists between the person seeking work and the employment market of that State.
87. The existence of such a link may be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the Member State in question.
88. The United Kingdom is thus able to require a connection between persons who claim entitlement to such an allowance and its employment market.
89. However, while a residence requirement is, in principle, appropriate for the purpose of ensuring such a connection, if it is to be proportionate it cannot go beyond what is necessary in order to attain that objective. More specifically, its application by the national authorities must rest on clear criteria known in advance and provision must be made for the possibility of a means of redress of a judicial nature. In any event, if compliance with the requirement demands a period of residence, the period must not exceed what is necessary in order for the national authorities to be able to satisfy themselves that the person concerned is genuinely seeking work in the employment market of the host Member State.
90. The answer to the third question must therefore be that the right to equal treatment laid down in Article 48(2) of the Treaty, read in conjunction with Articles 6 and 8 of the Treaty, does not preclude national legislation which makes entitlement to a jobseeker's allowance conditional on a residence requirement, in so far as that requirement may be justified on the basis of objective considerations that are independent of the nationality of the persons concerned and proportionate to the legitimate aim of the national provisions."
91. After the ECJ decision, the matter came back to the Court of Appeal. Jonathan Parker LJ, with whose judgment Brooke and Maurice Kay LJJ agreed, concluded at paragraph 85 that the habitual residence test in Regulations 85 (4), in the context of JSA, was not incompatible with Community Law. The Court held the Commissioner was in error in making a proviso.
92. (2) The adoption of a habitual residence test related to habitual residence in the CTA reflects the close links that have long existed between all the British Isles and between the UK and the Republic of Ireland. Maintaining the CTA is in the public interest i.e. the public of the UK. It is wrong to say that that it is there to assist only Irish workers. It assists the labour market generally and cements Anglo-Irish relations. The extension of the CTA of the habitual residence test was the result not of political clout but of wide consultation and the report of an entirely independent body. Parliament, too, voted, as Ms Fleay, recounts, to reject any extension or modification of the scope of the habitual residence test.
93. (3) The discrimination of which the Claimants complain is based on the advantageous treatment which (they say) British citizens of Irish national or ethnic origin enjoy by virtue of the provision relating to habitual residence. Seeking to remove that discrimination would prejudice the achievement of the objectives that the habitual residence test legitimately provides.
94. (4) The Claimant's main case would appear to be that the Secretary of State advances no justification for not making an exception for the Chagosians similar to that given to British citizens of Irish national or ethnic origin [paragraph 48 of Mr Cox's skeleton argument]. Mr Howell responded that the question is not whether a decision not to except the Chagosians from the habitual residence test is justified. The question is whether the habitual residence test is justified. The question is whether the habitual residence test is a proportionate means of achieving a legitimate aim given the particular disadvantage to which it is said to put other British citizens not only of Irish national or ethnic origins only if an exception for the Chaggosians is made. As the evidence states, the reasons that justify the treatment of those habitually resident in the CTA (and apart from the UK) do not equally apply to those habitually resident in e.g. Mauritius, whether British citizens or not. The links between the BIOT or Mauritius and the UK are not of the same character as those between the UK and Ireland, and the Claimants do not suggest otherwise.
95. Further, the Claimants are not seeking a similar exception to British citizens of Irish national or ethnic origin. Such citizens have to be habitually resident within the UK or other parts of the British Isles when they make a claim. The Claimants are not suggesting that the Chagosians should be habitually resident anywhere at the date of the claim. They are, in effect, seeking a complete exemption from the habitual residence test i.e. they are seeking to be treated better than the comparator group.
96. The main point advanced by the Claimants to justify such an exemption is that the UK Government caused the exile of the Chagosians from their homeland. But Mr Howell submitted that such an argument has nothing whatever to do with the treatment of British citizens of Irish national or ethnic origin. It is a justification for an exemption that the Claimants would advance even in respect of a habitual residence test framed solely in terms of habitual residence in the UK, to which they could not (and do not) object.
97. (5) Whatever may be the position as to the circumstances surrounding the departure of the Chagosians from Chagos Islands between 1971 and 1973 and the legality or otherwise of the orders (see Bancoult 1 and 2), none of those matters requires the exempting the Claimants or any other Chagosians coming from Mauritius, because of the evidence of Ms Fleay from paragraphs 49 onwards which I have set out.
98. So far as the comparison with Montserrat is concerned, the conditions faced by the Chagossians in Mauritius are nowhere near comparable with those faced by the people of Montserrat. They are not exposed to physical danger and are not compelled to leave their homes in Mauritius. British citizens in Zimbabwe and the Ivory Coast faced far more immediate physical danger than the Chagossians but that was not considered sufficient to justify their exemption from the habitual residence test.
99. Mr Cox submits that very few Chagossians could benefit (if at all) from the territorial scope of the test because they would not have been residing in Ireland. British citizens of Irish origin are much more likely to benefit as they are likely to be living in Ireland and thus come within the territorial scope of the test. This then feeds into the justification argument, which, according to the Secretary of State, is that the circumstances across the CTA make it undesirable to increase any divergence in terms of access to social assistance without good reason.
100. Mr Cox continues that the justification is not about fairness to the British taxpayer but in reality about discriminating as a result of political pressure from the Irish Government. In any event the Secretary of State's arguments about free movement within the CTA requires avoiding divergence of benefits is not shared by the Irish Government who, in 2004, introduced a requirement of habitual residence in Ireland for many of its social security benefits -see Schedule 1 to the Social Welfare (Miscellaneous Provisions) Act 2004. Jersey's social security benefits are limited to persons born in Jersey or who resided there for five years -see the Non-Native Assistance Act, 1950. The Isle of Man limits means-tested JSA to those born on the Island or who have been ordinarily resident there for ten years.
101. It is submitted that the two areas of the justification put forward by the Secretary of State demonstrates a striking tension. The first limits entitlement to those genuinely committed to settling in the UK, whereas the second permits residents of Ireland to come to UK with no such commitment and receive social security benefits and homelessness assistance.
102. To make an exception for the Chagosians would be to exempt a tiny number of people, compared to British citizens of Irish national or ethnic origin in Ireland. It would cost very little to make such an exception. No cost exercise has been undertaken by the UK Government to demonstrate the additional expense to the British taxpayer of exempting the Chagosians.
103. Finally, Mr Cox submits that the evidence on behalf of the Secretary of State contains no reference to the unique status of the Chagossians i.e. that they have been exiled from their homeland unlawfully (Bancoult 1 and 2). Mr Cox submitted that after Bancoult 1 the UK Government should then have decided to exempt the Chagossians or alternatively when the Chagossians were made British citizens. Nowhere is there in the evidence any evaluation of the Chagossians' moral claim to be exempted from the habitual residence test.
104. In my judgment, at the outset of any judicial evaluation of whether the Secretary of State has satisfied S. 1 (1A) (c) of the RRA, it must be remembered that whether or not one might agree with the stand taken by the UK Government in the instant case, is irrelevant. The sole issue is whether the Secretary of State has shown that the discrimination is a proportionate means of achieving a legitimate aim. The critical words are "proportionate" and "legitimate".
105. In my judgment the aim of the habitual residence test is a legitimate one. Both the ECJ and the Court of Appeal have said so, at least in the context of community law. If the aim, as explained in the evidence, is to protect the British taxpayer from claims by persons who have no genuine or real intention of settling in the UK, if it has been the subject of wide debate and consultation, and if Parliament itself has debated the matter in 1999, it is a nonsense to suggest that the habitual residence test does not have a legitimate aim. The real complaint of the Claimants is, in my judgment, that the implementation of the habitual residence test in relation to the Chagossians, given their special history, is not a proportionate means of achieving the legitimate aim.
106. The word "proportionate" to my mind imports the notion of a balanced response to a given situation. I do not see how it can be said that the inclusion of British citizens of Irish national or ethnic origin within the habitual residence test is not proportionate to the legitimate aim. The complaint of the Chagossians must be that they were not exempted from the scope of the habitual residence test, particularly in the light of their exile and being granted British citizenship. But that, with all due respect, is, as Mr Howell submitted, not the question. The question is whether the habitual residence test is a proportionate means of achieving a legitimate aim given the particular disadvantage to which it is said to put other British citizens not of Irish national or ethnic origin only if an exception is made for the Chagossians. I am afraid that the brutal reality is that the Chagossians are seeking to be treated better than their comparator group and thus seeking a complete exemption from the habitual residence test. The argument as to exile (particularly as British citizens) has no relevance, because it is an exemption that they would have to seek even if the habitual residence test was framed solely in terms of habitual residence in the United Kingdom; and, as is apparent, the Claimants could not (and do not) object to a habitual residence test framed solely in those terms. The distinction made by the UK Government between the plight of the people of Montserrat and of the Chagossians is one about which argument will rage. But hard and difficult decisions have to be made. There may be no 'right' answer, only a least wrong one. The question is whether the refusal of the UK Government to exempt them from the habitual residence is a proportionate response. In my judgment it is, for the reasons given by Ms Fleay and Mr O'Connor and in the submissions of Mr Howell.
107. I am not impressed by the submission about what Ireland, Jersey and the Isle of Man have done in respect of their tests of eligibility. What tests as to eligibility each Government or governing body decides to impose is a matter for that body to decide in respect of its own territory. If the UK test is easier to surmount than that in other territories within the CTA does not mandate, or go any way to doing so, the conclusion that the UK habitual residence test is not a proportionate means of achieving a legitimate aim. The UK test as to habitual residence is one which the UK Government consider, after extensive consultation and debate, is in the public interest for the reasons given in Ms Fleay's statement.
108. Mr Cox, so far as his submissions under the ECHR are concerned, does not seek to advance, in respect of irrationality, any considerations different from those advanced in relation to S. 1 (1A) (c) of the RRA.
109. In conclusion I quote a passage from the speech of Lord Hoffmann in Carson at paragraphs 14 to 17 inclusive in respect of which I have added the emphasis under the final two sentences of paragraph 16 and the penultimate sentence of paragraph 17. These words were spoken in the context of the EHCR, but I do not consider them to be any less relevant and important, indeed they are singularly apt, where matters of "proportionality" and "legitimate aim" are concerned in the instant case. Lord Hoffmann said:-

"What is discrimination?

14. There is no doubt that Ms Carson is being treated differently from a pensioner who has the same contribution record but lives in the United Kingdom or a treaty country. But that is not enough to amount to discrimination. Discrimination means a failure to treat like cases alike. There is obviously no discrimination when the cases are relevantly different. Indeed, it may be a breach of article 14 not to recognise the difference: see Thlimmenos v Greece (2001) 3 1 EHRR 41 1. There is discrimination only if the cases are not sufficiently different to justify the difference in treatment. The Strasbourg court sometimes expresses this by saying that the two cases must be in an "analogous situation": see Van der Mussele v Belgium (1 983) 6 EHRR 163, 179-1 80, para 46.

15. Whether cases are sufficiently different is partly a matter of values and partly a question of rationality. Article 14 expresses the Enlightenment value that every human being is entitled to equal respect and to be treated as an end and not a means. Characteristics such as race, caste, noble birth, membership of a political party and (here a change in values since the Enlightenment) gender, are seldom, if ever, acceptable grounds for differences in treatment. In some constitutions, the prohibition on discrimination is confined to grounds of this kind and I rather suspect that article 14 was also intended to be so limited. But the Strasbourg court has given it a wide interpretation, approaching that of the 14th Amendment, and it is therefore necessary, as in the United States, to distinguish between those grounds of discrimination which prima facie appear to offend our notions of the respect due to the individual and those which merely require some rational justification: Massachusetts Board of Retirement v Murgia (1 976) 438 US 285.

16. There are two important consequences of making this distinction. First, discrimination in the first category cannot be justified merely on utilitarian grounds, eg that it is rational to prefer to employ men rather than women because more women than men give up employment to look after childen. That offends the notion that everyone is entitled to be treated as an individual and not a statistical unit. On the other hand, differences in treatment in the second category (eg on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest. Secondly, while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government.

17. There may be borderline cases in which it is not easy to allocate the ground of discrimination to one category or the other and, as I have observed, there are shifts in the values of society on these matters. Ghaidan v Godin-Mendoza [2004] 2 AC 557 recognised that discrimination on grounds of sexual orientation was now firmly in the first category. Discrimination on grounds of old age may be a contemporary example of a borderline case. But there is usually no difficulty about deciding whether one is dealing with a case in which the right to respect for the individuality of a human being is at stake or merely a question of general social policy. In the present case, the answer seems to me to be clear".

110. The claims are dismissed.

Note 1   amendment made by reg 3 of Race Relations (Amendment) Regulations 2003  

Note 2   amendment made by reg 20 of Race Relations Regulations 2003   

Note 3   amendments made by reg 35 of Race Relations Regulations 2,003  

Note 4   See e.g. Jobseeker's Allowance Regulations 1996, regulation 85(4), definition of "person from abroad", subparagraphs (a)-(d).     

Note 5      

Note 6   Cm 2609, Report of the Social Security Advisory Committee, paragraph 42 [KF1/15].    

Note 7     

Note 8   Cm 2609, Report of the Social Security Advisory Committee, paragraph 42 [KF1/15].   

Note 9     

Note 10   These claimants were from both Mauritius and the Seychelles.   

Note 11   The figure was 4,466 according to Ouseley J at paragraph 99 of Chagos Islanders v The Attorney General [2003] EWHC 2222 (QB) although the claimants maintained that the correct figure was 4,959.    

Note 12   The British High Commission in Port Louis confirms this.   

Note 13   Republic of Mauritius web-site for the Ministry of Social Security, National Solidarity and Senior Citizens Welfare and Reform Institutions (at http://socialsecurity.yov.mu),downloaded June 2005 [KF1/200-230].    

Note 14   Confirmed by the British High Commission, Port Louis.   

Note 15   Ouseley J' S judgment in Chagos Islanders v The Attorney General [2003] EWHC 2222 (QB) at paragraph 23 indicates that Mauritian citizenship was conferred on everyone born in Mauritius by the date that Mauritius became independent (12 March 1968), including those born in that part of the British Indian Ocean Territory which had previously been part of the colony of Mauritius.    

Note 16   See paragraphs 43 and 69 to 76 of the judgment of Ouseley J in Chagos Islanders v The Attorney General [2003] EWHC 2222 (QB).    

Note 17   The reasons which justify the treatment of people resident in the CTA in the manner I have described do not apply equally to the Ilois. Those British citizens by virtue of some connection with the Chagos Islands who have been living in Mauritius are neither historically, geographically, socially, economically or in benefit terms in an analogous position to persons who have been habitually resident in Ireland.   

Note 18   Ilois Welfare Fund Act 1999, section 4, [KF1/231-232].  

Note 19    [KF1/234-247].