Westminster City Council & Anor v Morris

Mrs Morris, who comes from Mauritius, is a British citizen by descent. Her entry into the United Kingdom in April 2002 as a lawful visitor was accepted as presence as of right, marked by the issue to her of a UK passport, in August of that year. But her small daughter, who was with her, at the time with which this appeal is concerned lacked UK citizenship and was therefore subject to immigration control within the meaning of the Asylum and Immigration Act 1996. The daughter now has citizenship; but at a time in August 2002 when the two of them were faced with homelessness, Westminster City Council took the view that the daughter’s status precluded the council from treating Mrs Morris, as she would otherwise have been entitled to be treated, as in priority need.

In a judgment given on 13 October 2003, Keith J held that where a dependent child is subject to immigration control, albeit the parent is not, the effect of s.185 of the Housing Act 1996 is that the parent cannot establish a priority need for accommodation. This is not now contested. He stood over the consequent question of whether he should make a declaration of incompatibility with the European Convention on Human Rights in order that the First Secretary of State could intervene, as he has elected to do.

Although the result of the first judgment was to disentitle Mrs Morris to priority need status, the case has become academic for her for several reasons. First, given her ineligibility, a declaration of incompatibility was not going to secure her housing. Secondly, and more happily, it has since been established that her daughter is not subject to immigration control. Thirdly, she has found work and no longer needs to seek public assistance with her housing. But she has been enabled by public funding to resist the present appeal on the issue of principle, brought by the First Secretary of State and Westminster City Council against the declaration of incompatibility which Keith J made in a judgment (Footnote: ¹) delivered, after full argument, on 7 October 2004.

The starting point of the present appeal is that, as Westminster City Council had taken to be the case, a woman who is a UK citizen, with a dependent child who is not, cannot as a matter of law establish a priority need for accommodation. The full reasons why this is so are to be found in the first judgment of Keith J (Footnote: ²), which has not been appealed. His essential reason is that s.185(4) of the Housing Act 1996 prevents an otherwise eligible claimant from relying on a person subject to immigration control – here Mrs Morris’s daughter - to bring her within the class (set out in s.189(1)(b)) of persons with dependent children. The provision marches with the general exclusion by s.185(2) of claimants who themselves are subject to immigration control.

It follows, in the contention of Matthew Hutchings, who represents Mrs Morris, that a frank distinction is made by the legislation on grounds of nationality: if the daughter had been a UK citizen, Mrs Morris would have been in priority need. This being so, he submits, the distinction made by the Housing Act 1996 lies within the ambit of ECHR art.8 because, in those cases which it affects, it diminishes the respect accorded by the state to family life. Since this is a distinction made on grounds of national origin it constitutes discrimination contrary to art.14 unless it can be justified, which he contends it cannot be.

For the First Secretary of State, David Pannick QC, appearing with Lisa Giovannetti, who argued the case below, submits that the provision does not engage art.8: it is a provision about homelessness, not about family life. If this is wrong, he accepts that art.14 is potentially engaged, not because the statutory distinction is based on national origin (this he contests) but because it is based on immigration status and residence in the UK and so depends on some “other status”. He contends that, so approached, the distinction is self-explanatory and self-justifying in the context of the overall statutory scheme; but that, in so far as it requires further justification, it is a reasonable and proportionate means to the legitimate policy ends of encouraging persons illegally here to regularise their status and discouraging benefit tourism. Finally, Mr Pannick submits that there are other statutory powers which prevent what would otherwise be an incompatibility from arising, or alternatively which remedy any fault without the need of a declaration of incompatibility.

These arguments are supported, as they were below, by David Warner for Westminster City Council. In one respect, however, Mr Warner contests the First Secretary of State’s case before this court: while he too relies on the existence of other local authority powers, he disputes Mr Pannick’s argument that if s.185(4) is incompatible with a Convention right, the other powers to accommodate families become duties and so preserve the United Kingdom from non-compliance.

Keith J held against the appellants: he found the provision made by s.185(4) to be unjustifiably discriminatory on grounds of nationality in its impact on family life . He accepted, as all parties before him accepted, that he could not cure the resulting incompatibility by reading the provision down, since to do so would amount to reversing what Parliament had enacted. He rejected three further arguments against the making of a declaration which are longer advanced: that the distinction, albeit on grounds of nationality, was not on the Convention ground of “national origin”; that the vice lay in subordinate regulations made under s.185(2) and not in the statute itself; and that the issue was now academic. The judge accordingly declared “that s.185(4) of the Housing Act 1996 is incompatible with art.14 of the Convention to the extent that it requires a dependent child of a British citizen to be disregarded when determining whether the British citizen has a priority need for accommodation, when that child is subject to immigration control”.

These are the issues which we in turn have to consider. In doing so, I for my part have been assisted by the clear and cogent judgment of Keith J.

Section 185 appears in Part VII of the Housing Act 1996 (which is captioned “HOMELESSNESS”). As amended, it provides:

185.

Persons from abroad not eligible for housing assistance

(1)

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

(2)

A person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he is of a class prescribed by regulations made by the Secretary of State.

[(2A) No person who is excluded from entitlement to housing benefit by section 115 of the Immigration and Asylum Act 1996 (exclusion from benefits) shall be included in any class prescribed under subsection (2).]

(3)

The Secretary of State may make provision by regulations as to other descriptions of persons who are to be treated for the purposes of this Part as persons from abroad who are ineligible for housing assistance.

(4)

A person from abroad who is not eligible for housing assistance shall be disregarded in determining for the purposes of this Part whether another person-

(a)

is homeless or threatened with homelessness, or

(b)

has a priority need for accommodation.

It is also relevant to the issues before us to note some of the provisions of ss.176, 187, 189 and 193:

176.

Meaning of accommodation available for occupation.

Accommodation shall be regarded as available for a person's occupation only if it is available for occupation by him together with-

(a)

any other person who normally resides with him as a member of his family, or

(b)

any other person who might reasonably be expected to reside with him.

References in this Part to securing that accommodation is available for a person's occupation shall be construed accordingly.

187.

Provision of information by Secretary of State

(1)

The Secretary of State shall, at the request of a local housing authority, provide the authority with such information as they may require-

(a)

as to whether a person is or has become an asylum-seeker, or a dependant of an asylum-seeker, and

(b)

to enable them to determine whether such a person is eligible for assistance under this Part under section 185 (persons from abroad not eligible for housing assistance).

189.

Priority need for accommodation

(1)

The following have a priority need for accommodation-

(a)

a pregnant woman or a person with whom she resides or might reasonably be expected to reside;

(b)

a person with whom dependent children reside or might reasonably be expected to reside;

(c)

a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;

(d)

a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.

193.

Duty to persons with priority need who are not homeless intentionally

(1)

This section applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.

(2)

Unless the authority refer the application to another local housing authority (see section 198), they shall secure that accommodation is available for occupation by the applicant.

The Immigration Act 1971, by s.2(1), confers a right of abode in the United Kingdom on, among others, British citizens. This was at all material times Mrs Morris’s status. By virtue of s. 1(1) she was in consequence “free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as …may be … lawfully imposed on any person”.

Her daughter, by contrast, fell to be regarded for the purpose of these proceedings as a person subject to immigration control within the meaning of s.185(2) of the Housing Act 1996. This was by virtue of the definition of such a person in s.13(2) of the Asylum and Immigration Act 1996: “a person who under the [Immigration Act 1971] requires leave to enter or remain in the United Kingdom (whether or not such leave has been given)”. Paragraph 7 of the applicable Immigration Rules (HC 395) made pursuant to s.3(2) of the 1971 Act lays down that a person such as Mrs Morris’s daughter, being neither a British citizen nor a person with any other right of abode or right to enter and remain, requires leave to enter the United Kingdom.

This category is neither definitive of nor exhaustive of those who are ineligible for housing assistance under Part VII. In the Homelessness (England) Regulations 2000, made under s.185, regulation 3 enables certain persons who are subject to immigration control to obtain housing assistance, and regulation 4 excludes from housing assistance some persons from abroad who are not subject immigration control. The two regulations read in full:

The two articles of the European Convention on Human Rights upon which the present argument turns are these:

By s.4(2) of the Human Rights Act, in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right, the court, if so satisfied, “may make a declaration of that incompatibility”.

Since Keith J delivered his judgment, the approach to article 14 commended by this court in Wandsworth LBC v Michalak (Footnote: ³) has been superseded by the decision of the House of Lords in R (Carson) v Secretary of State for Work and Pensions (Footnote: ⁴), in which Lord Nicholls (Footnote: ⁵) sounded a new keynote:

“3.

…Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in article 14. If this prerequisite is satisfied, the essential question for the courts is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.”

While, as the judge accepted, s.185(4) is not itself incompatible with art.8, he concluded that it lay sufficiently within the ambit of the article to attract the requirements of art.14. The word ‘ambit’, which attempts to encapsulate the jurisprudence of the European Court of Human Rights on the operation of art.14, is an inevitably imprecise term. It recognises that a measure does not have to violate a substantive right in order to affect the enjoyment of it: Convention rights have a penumbra within which unjustifiable discrimination is forbidden even in the absence of a violation of the right. But the argument here does not really concern the penumbra of art. 8. Mr Hutchings accepts that it does not cover links between the material distinction and the material Convention right which are not “direct and immediate” (Footnote: ⁶), but he relies in turn on the equally well-founded proposition (Footnote: ⁷) that a Convention right capable of attracting art. 14 protection may exist not only where the domestic legislation was needed in order to give effect to the right but where the state has voluntarily enacted legislation beyond the minimum necessary for compliance: here too there must be no discrimination contrary to art.14.

In the Administrative Court the arguments for the Secretary of State and Westminster City Council under this head were root-and-branch arguments. The former contended that Part VII was designed to combat homelessness, not specifically to promote or protect family life. The latter contended that it was part of a general welfare scheme of a kind which had been held in R (Carson) v Secretary of State for Work and Pensions (Footnote: ⁸) to be outwith the ambit of art.8.

Keith J rejected these arguments. He noted that the progenitor of Part VII was the Housing (Homeless Persons) Act 1977, which had been held by the House of Lords in Din v Wandsworth LBC (Footnote: ⁹) to be “designed for the expressed purpose of bringing families together”, and he cited in full this passage from the speech of Lord Fraser:

“…One of the main purposes of that Act was to secure that, when accommodation is provided for homeless persons by the housing authority, it should be made available for all members of his family together and to end the practice which had previously been common under which adult members of a homeless family were accommodated in hostels while children were taken into care, and the family thus split up. The emphasis on treating the family as a unit appears from section 1 which provides that a person is homeless for the purpose of the Act if he has no accommodation, and that he is to be treated as having no accommodation if there is no accommodation which he “together with any other person who normally resides with him as a member of his family …is entitled to occupy” (section 1 (1) (a)). The particular emphasis on families with children appears from section 2 which provides that a homeless person has “a priority need for accommodation” when the housing authority is satisfied that he is within one of certain categories, the first of which is that “he has dependant children who are residing with him or who might reasonably be expected to reside with him”: (section 2 (1) (a)).”

The judge concluded:

“13.

In any event, what may or may not have been the main purpose of Part V11 as a whole, the undoubted purpose of section 189(1)(b) was to ensure that families would not be split up. In these circumstances, the relevant provisions in Part V11 of the 1996 Act, namely sections 188, 189 and 193, especially when seen against the background of section 176, were intended to promote family life. It follows that if section 185(4) amounts to a discriminatory restriction on the rights created by sections 188, 189 and 193 on any of the prohibited grounds, it would infringe Art. 14.”

In this court the Secretary of State has adopted the broader argument advanced below by Mr Warner for Westminster. This was rejected by Keith J on similar grounds. He considered that the possible presence of a safety net for dependant children in other legislation “would not have prevented the relevant provisions in Part VII of the 1996 Act from being regarded as having been intended to promote family life”. He concluded (at §14):

“And once that intention has been recognised, the necessary link between the relevant provisions in Part VII and art.8 has been established.”

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.

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.

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.

It is no longer contended (though Mr Pannick reserves the point) that national origin – the art.14 class - is materially different from nationality (Footnote: ¹⁰). Both appellants submit, however, that nationality is not the true ground of the distinction made by s.185(4). Mr Hutchings resists this submission on the apparently straightforward grounds that if the daughter had not been subject to immigration control her mother would have had a priority need, and that the reason she was subject to immigration control was that she lacked British nationality. The decision letter had made it clear that this was the reason for refusal.

For the appellants, however, it is pointed out, first, that nationality is not a stated ground of exclusion: it enters the picture, if at all, through s.185(2) and the provisions of the Immigration Act 1971. Secondly it is pointed out that the governing category in s.185(1) is “a person from abroad who is ineligible for housing assistance”. Such a person, it is submitted, may include a British citizen who has been living abroad, or a Commonwealth citizen not habitually resident here. Equally, a refugee, to take only the most striking of a series of exceptions under regulation 3 of the Homelessness Regulations, is eligible for assistance regardless of nationality. The net effect, Mr Pannick submits, is to introduce “complex criteria relating to the nature and extent of the individual’s right to reside in the UK and/or the nature and extent of the UK’s treaty obligations and/or whether the individual is habitually resident in the UK as a matter of fact and law”. Correspondingly, “the reason that the daughter fell to be disregarded under s.185(4) was not her Mauritian nationality but the fact that she had been brought into the UK as a visitor and remained as an overstayer”. Were she not an overstayer, Mr Warner adds, her right of entry would have still been conditional on not having recourse to public funds.

Mr Warner submits that for these reasons the judge erred in concentrating on s.185(2) and regarding s.185(3) as providing exceptions to its general rule. He contends that s.185(1) creates a general class of ineligible persons, while subsections (2) and (3) create sub-classes of the same ineligibility; and that the disregard created by subsection (4) applies to the wide class created by subsection (1), not simply the subclass created by subsection (2). Eligibility, he submits, depends on habitual residence in the Common Travel Area; on whether those not so resident fall within a stated exception; or on whether, being subject to immigration control, they fall within a stated exception.

I do not agree with this analysis of s.185. The section creates, in my view, a single category of ineligibility, the definition of which is elaborated and refined by the successive subsections. Subsection (4), as it happens, creates an exception to all Part VII provision, not simply to subsection (1). But what matters is that s.185(4) creates a class of person whose own ineligibility counts against the eligibility of another.

In oral argument Mr Pannick has developed a more complex submission than was advanced before Keith J. He accepts that, if we hold the measure to be within the ambit of art.8, it requires justification within art.14. But the reason why it requires justification has a critical bearing on the requisite level of justification, because if the material distinction is made not on the ground of national origin (or therefore of nationality) but on the ground of “other status”, to wit a combination of immigration status and habitual residence, a much lower level of justification is required. Even so, the case he advances will if necessary, in his submission, justify discrimination based on nationality.

Mr Hutchings submits that the issue is unaffected by the existence of other sub-classes which share the want of nationality but not the consequent disadvantage, or which share the disadvantage without sharing the want of nationality. The submission derives strong support from the decision of the ECtHR in Gaygusuz. The Austrian legislation which excluded the claimant on the ground of his nationality nevertheless accorded the material benefit to several classes of other non-nationals. It also allowed the state to exclude certain classes of nationals. Even so, the simple fact that the claimant was denied the benefit because he was not an Austrian national was all that was required to establish a breach of art.14.

The jurisprudence of Gaygusuz reflects what seems to me a proposition of logic which answers the appellants’ explanation of the claimant’s ineligibility: that a discriminatory measure is no less discriminatory for being partial or selective in its scope. The undoubted fact that the particular measure forms part of a complex of criteria makes it the more important to ensure that an inadmissible ground of ineligibility does not form part of the complex.

These questions will affect justification under art. 14, albeit depending in large part on whether immigration control rather than nationality is the true ground, or part of the true ground, of the distinction drawn by s.184(5). But they have a bearing, and have been argued accordingly, on the question of what the true ground is. Habitual residence, however, does not in my judgment enter this argument. It is of course a second statutory criterion, but it was not the ground on which Mrs Morris was denied assistance. For all present purposes her and her daughter’s habitual residence in the United Kingdom has been assumed. Where it will matter is in the formulation of the declaration of incompatibility if this is upheld: it will be necessary – and was probably necessary below – to add after “a dependent child of a British citizen” the words “if both are habitually resident in the United Kingdom”. As a separate ground of qualification its admissibility is not under challenge.

Habitual residence apart, what is the true ground of the distinction made by s.185(4)? On its face it is the ineligibility of a person other than the claimant for housing assistance; but that tells us nothing. Ineligibility, however, means liability to immigration control. If one stops there, Mr Pannick’s position seems secure: the ground of distinction has to do with immigration control, and the decision of the ECtHR in Moustaquim v Belgium (Footnote: ¹¹)- relied on by him only in reply, and then with understandable diffidence – appears to establish that the expulsion of offenders who lack a right of abode can never rank as nationality discrimination because the only possible comparison is with nationals who, since they have a right of abode, are not comparable. It was perhaps an awareness of a certain frailty in this reasoning that led Mr Pannick not to rely too heavily on it. But it gives broad support to his contention that, if the ground of differential enjoyment of a Convention right is immigration status, it should not be anything like as onerous to justify as if the ground were race, sex or nationality.

If, however, one asks what was the underlying element that rendered Mrs Morris’s daughter subject to immigration control, the answer may be said to be her want of British nationality. True, such a want may be cured by the grant of some other right which relieves the entrant of the need for leave to enter or remain here, but the defining categories are the mutually exclusive ones of national and non-national. If therefore this was the ground of the differential treatment dictated by s.185(4), it fell within the proscribed art.14 class of national origin.

But I propose to defer the correct characterisation of the material ground of discrimination, because the conclusion I have reached on justification means, if it is correct, that the identification of a single ground is not critical. This is because it seems to me that, whatever is held analytically to be the ground for it, the justification advanced for the s.185(4) differential fails to explain or excuse its discriminatory effect.

Mr Pannick accepts that, whatever the ground of discrimination, art.14 requires him to justify it once it is held to enter the ambit of art.8. He also accepts that, as the House of Lords insisted in A v Secretary of State for the Home Department (Footnote: ¹²), it is to the substance and not the form of the power that is being exercised that the court must look. But he says that the substance of s.185(4), seen in proper perspective, is to complete a pattern of immigration control which begins with the Immigration Rules (Footnote: ¹³). Rules 297 and 298 prevent the entry or continued residence of a non-national child who cannot be accommodated without recourse to public funds. Section 184(5), although not itself part of the immigration control system, continues this provision in relation to families whose members have become habitually resident here: indeed Rules 297 and 298 would be undermined if there were not an extended exclusion of children like Mrs Morris’s daughter.

One problem with this argument is that in a variety of other respects the purported extension of immigration control is not applied to such people: child benefit, child tax credits, education and health care, as Mr Hutchings points out, are all unaffected by analogous exclusions. He accepts the legitimacy of the material immigration controls, but he does not accept that s.185(4) forms part of them. He contests in particular the policy grounds advanced by Mr Pannick in reliance on the witness statement of Terrie Elizabeth Alafat, director of the Homelessness and Housing Support Directorate of the Office of the Deputy Prime Minister. Her statement describes the heavy pressure on the social housing stock, including some 94,000 homeless people in temporary accommodation. It goes on as follows:

I want to enter a caveat about evidence of this kind. Although no objection has been taken to it by Mr Hutchings, extrinsic evidence of legislative policy can only be admissible, if admissible at all, in relation to a claim for a declaration of incompatibility. In this context its permissible nature and ambit were considered by Lord Nicholls in Wilson (Footnote: ¹⁴)and by this court in Evans v Amicus Healthcare (Footnote: ¹⁵). Neither seems to have been much heeded so far in Whitehall or the Temple; but I will take paragraph 25 of Ms Alafat’s witness statement as if it were a part of Mr Pannick’s written submissions.

“Reducing the incentive for people to come to Britain for the purpose of claiming benefits or services” is a perfectly legitimate policy objective. But its application to an adult who is here as of right, and who has her child with her, is far from obvious. Nobody was entitled to ask Mrs Morris why she chose to be in the United Kingdom or to put her under pressure to leave. Her daughter, on the assumed facts, had a different and more precarious immigration status, but there was nothing to suggest that it was in order to facilitate a claim for emergency housing assistance that she was here with her mother. Nor would that be the natural or normal inference. In other words, there was no good reason to regard Mrs Morris’s application for emergency housing assistance with her daughter as in any sense benefit tourism rather than as a reaction to a crisis which had overtaken them while she was lawfully here and her daughter, who was subject to immigration control, was with her.

“Encouraging people to regularise their stay if they are here illegally”, as was accepted in argument, is a euphemism (Footnote: ¹⁶). What it means is putting such people, if they cannot secure a lawful status here, under pressure go back to where they came from. This, again, is a perfectly admissible policy objective. But the question, again, is why it should be a proper means to this end to put Mrs Morris under pressure, by reason of her child’s immigration status, to give up her right to be here. The two things do not add up.

It is uncontested that the state is entitled to link its measures, for example in relation to deportation, with nationality or with immigration status without differentiating between the two. The Secretary of State submits that s.185 “reflects the scheme regulating immigration control” and so is “a legitimate exercise of the right to control the entry and residence of aliens, and does not require specific justification”. He founds on the established body of ECHR cases, in particular Abdulaziz and others v United Kingdom (Footnote: ¹⁷), which recognise that much of immigration control lies outside the ambit of the Convention rights. Here, while holding that the bar on non-national husbands joining wives lawfully settled here (in contrast to the freedom of non-national wives to join husbands settled here) amounted to unjustifiable sex discrimination, the ECtHR rejected the contention that the Immigration Rules discriminated on grounds of race. They considered (Footnote: ¹⁸) that the restriction of immigration “was grounded not on objections regarding the origin of the non-nationals but on the need to stem the flow of immigrants at the relevant time”. Declining to apply a concept of indirect discrimination in view of the preponderant impact of the rules on persons from the New Commonwealth and Pakistan, the Court held that “the … Rules made no distinction on the ground of race”.

Mr Pannick’s submission was that in rejecting the justification advanced by the Secretary of State, Keith J trespassed upon the discretionary area of judgment of Parliament and the executive. Mr Pannick also submitted that, by demanding “very weighty” justification the judge set too high a hurdle. Mr Warner, adopting these submissions on behalf of Westminster City Council, submitted that the judge assumed without evidence that those who regularised their status would be able to do so only on condition that they were to have no recourse to public funds and so would come no closer to eligibility under s.185. The Morris family’s own situation and experience indicated the opposite. So did the express exceptions to s.185 created by regulation 3: refugees, certain asylum-seekers and persons with unconditional leave to remain. As to benefit tourism, Mr Warner likewise criticises the judge for assuming without evidence that s.185 would not prevent British citizens bringing dependent children here. In his skeleton argument he adds this:

“The absence of that evidence is of little surprise since the purpose of the legislation is to deter non-British citizens from coming to the UK and claiming, or being used to claim, welfare benefits.”

Mr Hutchings responds that the Housing Act is not a measure of immigration control, but he accepts that the judge was right to decide in the light of immigration policy considerations whether the discrimination he had identified in s.185 was reasonable and proportionate and therefore justified. His principal case is that once nationality is found to be the essential ground of discrimination, weighty reasons are required to justify it (Footnote: ¹⁹), and there are none; but he contends in the alternative that even if s.185(4) discriminates on less objectionable grounds, the discrimination still cannot be not justified.

The starting point, in my judgment, is that immigration control has no legitimate bearing at all on a British citizen. It has a proper bearing on her non-national dependent child, but a policy objective of driving a British parent out of the country because of the immigration status of her child is not one which I am prepared to attribute to Parliament in its enactment of s.185(4). It is said, however, that what happened in the present case, which was that the child’s immigration status was regularised, illustrates the realism of the policy. I accept entirely that where this can be done, the statutory handicap strongly encourages parents to do it. But the subsection does not strike here: it strikes at those who, despite their own British citizenship, have failed or have been unable to secure the necessary immigration status for the dependent child. Except for those (not likely to be many) who have simply neglected to take the necessary steps, the effect is not an encouragement to regularise their children’s status but a penalty – in the nature, moreover, of expulsion - for being unable to do so.

As I have said, putting foreign nationals under pressure to leave if they cannot regularise their stay is a perfectly intelligible policy objective. But while it is simple to justify in relation to foreign nationals, it has no discernible justification in relation to British citizens. The same is true of benefit tourism: while there may be separate reasons of non-residence for denying such people benefits, subjecting them to disadvantage purely in order to discourage them from exercising the right of abode which their citizenship carries seems to me to require very solid justification.

Neither the evidence nor the argument, in my judgment, shows the rule created by s.185(4) to be a proportionate or reasonable response to the perceived problem. The problem is in all significant respects a problem of foreign nationals either coming to this country (benefit tourism) or outstaying their leave to be here (irregular status) in order to take advantage of the priority housing status accorded to homeless families. Measures directed at this, I accept, require no explicit justification, whether because they are an aspect of immigration control or because they are an obviously legitimate response to a manifest problem. But a policy objective of discouraging British citizens from coming or remaining here needs justification. Justification has to start, moreover, not from art.14 but from art.8: the question is whether it is justifiable to make a measure designed to accord respect to family life dependent not on the nationality of the claimant but on the immigration status of her dependant child.

Section 185 carries no self-evident justification capable of making subsection (4) a proportionate, or even a logical, response to the problems of benefit tourism and unlawful migration. There is certainly the beginning of an explanation in the undesirability of British nationals exercising their right of abode here for the purpose of securing accommodation for themselves together with children of theirs who are subject to immigration control. But it is the combination of the settled residence rule and the subsistence of immigration controls on such children which exist to deal with this problem. The assumptions on which s.185(4) is built are different: they are that the parent is both lawfully here and habitually resident here, and that the child, albeit subject to immigration control, is also here and is dependent on the parent. To exclude such a family does not correspond with even the limited policy objective I have described.

I do not accept that this particular terrain between discrimination and justification lies within the discretionary area of judgment of the legislature or of the executive. It is evident that neither has appreciated that s.185 has a discriminatory impact which is based on one or more grounds proscribed by art.14 and is therefore in breach of the United Kingdom’s international obligations unless it can be justified. Both have taken the stance that there is no such impact. Neither has therefore made any judgment at all as to whether the measure is proportionate and otherwise justified. A declaration of incompatibility, if one is made, will invite them to exercise exactly this judgment. In making such a declaration, the court usurps no function of the other limbs of government.

I come back to a question which I set on one side earlier in this judgment: is the ground of the distinction drawn by s.185(4) nationality, immigration control, settled residence or a combination of some or all of them? As I suggested earlier, the answer depends on how far you travel from the taciturn statutory test of ineligibility, and in which direction. A lexicographical journey takes you to immigration control, and from immigration control to nationality. A policy journey takes you to settled residence and social welfare. The attempt to isolate from among these a single operative ground of distinction may be a search for a mare’s nest. It is, I would think, enough that in combination they have operated to determine first the child’s and then the mother’s status (and hence the former’s art.14 rights) in relation to eligibility for emergency housing assistance. But it may still matter, in Convention terms, that nationality is among these factors, for it is the root cause of the child’s liability to immigration control, and thus of the mother’s inability to establish a priority need.

It also seems to me to be more consonant with the purpose of art.14 not to try to isolate or prioritise one of a complex of factors defining the individual’s status, but to address the complex itself. This has, at base, been the First Secretary of State’s approach in this court, albeit it has not yielded the result he wants.

If, contrary to my preferred approach, it is necessary to decide whether or not national origin, in the form of nationality, is the ground upon which the distinction contained in s.185(4) is drawn, my answer would be that it is: but for the child’s non-British nationality, Mrs Morris would have been recognised as having a priority need for accommodation. If so, justification is the more visibly wanting.

In R (on the application of J) v Enfield LBC (Footnote: ²⁰), Elias J upheld the submission of the intervener, the Secretary of State for Health, that because s.2 of the Local Government Act 2000 was broad enough in scope to allow a local authority to provide financial assistance for accommodation in order to keep a family together and so respect their art.8 rights, there was no need for a declaration that s.17 of the Children Act 1989, which did not permit this, was incompatible with the Convention. Indeed, he held, the s.2 power would become a duty if its exercise was necessary in order to avoid a breach of art.8. We are asked, in the last resort, to take the same approach here.

For reasons I have touched on, I do not think the one thing follows from the other. An incompatibility remains an incompatibility whatever other forms of recourse are or become available. It is not for the courts to write off a legislative provision because other, necessarily different, provisions coexist with it. In my judgment the argument impermissibly assumes that the incompatible legislation is otiose or dispensable because other means exist to the same or a similar end. But everyone’s situation is different, and not everyone capable of benefiting by the impugned legislation will have a point of entry into the alternative provisions. Although the claim for a declaration of incompatibility requires a sufficient interest on the part of the claimant, the decision to make a declaration if the conditions are met depends not on the claimant’s interest alone but on the general compatibility of the measure with the Convention right in question.

In the circumstances it seems to me unnecessary to rule on the potentially far-reaching argument that s.6 of the Human Rights Act may operate so as to turn administrative powers into duties - not as a general proposition (many powers become duties in particular situations) but as a specific consequence of the Convention-incompatibility of a discrete statutory provision. Whatever the answer, it is not in my view a reason for withholding a declaration of incompatibility.

It is not clear to me why, if the court reaches this point, the First Secretary of State, much less Westminster City Council, wants to resist the making of a declaration the sole effect of which is to draw the executive’s and Parliament’s attention to a departure from the state’s international obligations which requires correction. Lord Steyn’s proposition in R v A (No 2) (Footnote: ²¹), cited by Mr Pannick, that a declaration of incompatibility is a measure of last resort concerned the priority set by the Human Rights Act itself: that one must use s.3 so far as possible and resort to a declaration only if construction cannot resolve the incompatibility. It did not relate to an argument that the availability of other forms of recourse made a declaration of incompatibility redundant.

Accepting, therefore, (something I doubt) that the word “may” in s.4(2) of the Human Rights Act confers a general discretion on the court rather than a jurisdiction which it is expected to exercise, I do not consider that there is any good reason to withhold a declaration of incompatibility. I would make it in the same form as did Keith J, save that, as indicated earlier, I would qualify it by inserting the phrase “if both are habitually resident in the United Kingdom”, so that it will read:

“That s.185(4) of the Housing Act 1996 is incompatible with art.14 of the Convention to the extent that it requires a dependent child of a British citizen, if both are habitually resident in the United Kingdom, to be disregarded when determining whether the British citizen has a priority need for accommodation, when that child is subject to immigration control”.

Subject to this modification, I would dismiss the appeal.

Mr Badu’s claim is predicated on the declaration of incompatibility made by Keith J in Morris, which I would uphold. Elias J, giving permission to Mr Badu to apply on this basis for judicial review of the failure of the London Borough of Lambeth to accord him priority housing status, directed that the papers be sent to this court so that consideration might be given to hearing the case sequentially with Morris, a course which this court agreed to. Mr Badu’s application has accordingly been listed before the three of us, sitting as the Administrative Court.

The argument, however, has been deliberately (and helpfully) confined by counsel to the outlying issues of principle: does the Convention-incompatibility of s.185(4) compel local authorities to use their other powers to fill the space, as Bryan McGuire contends on Mr Badu’s behalf; or does it, as Ranjit Bhose contends for the local authority, have the diametrically opposite effect of preventing them from doing so? While we have also to consider the intermediate position advanced by David Pannick QC for the First Secretary of State, namely that the law permits but does not compel the use of alternative powers, we have not been asked to embark upon the merits of the case. If, therefore, one side is not able to deal the other a knockout blow of the kind I have indicated, it will be necessary to remit the claim for reconsideration or for trial at first instance.

Mr Badu is a foreign national (a Ghanaian) who has indefinite leave to remain in the United Kingdom. He is the sole carer of his son, who was born on 6 June 2003 and whose mother, an overstayer, has abandoned him. The child is in law a person from abroad who is subject to immigration control. The two have been forced by the lack of proper accommodation to live with Mr Badu’s uncle in circumstances which, it is accepted, render them substantively or prospectively homeless. They therefore stand, in principle, in the same situation vis-à-vis Part VII of the Housing Act 1996 as Mrs Morris and her daughter were taken to stand. The difference is that, unlike the latter, they have a continuing need.

It follows from the first decision of Keith J in Morris that s.185(4) prevents Mr Badu, because of his child’s immigration status, from establishing a priority need. This is accepted by Mr McGuire. Although Mr Badu, unlike Mrs Morris, is not a British citizen, it has not been sought by Mr Bhose to exclude him from the ambit of the incompatibility declared by the same judge in the present proceedings, no doubt because he enjoys an equivalent status by virtue of regulation 3(b) of the Homelessness (England) Regulations 2000. But, as s.4(6) of the Human Rights Act 1998 provides:

Mr McGuire points to three separate powers possessed by the local authority, each of which is capable of being used to provide the urgently needed accommodation:

To this end Mr McGuire places reliance on the decision of Elias J in R (J) v Enfield LBC [2002] EWHC 432 (Admin), to which I have referred in paragraph 53 above in relation to the argument that the existence of a surrogate power makes a declaration of incompatibility unnecessary or inappropriate. That, however, has no bearing on the present point, which relies on Elias J’s ruling at §53 that

“The power conferred by section 2 [of the Local Government Act 2000] is … capable of extending to the grant of financial assistance for acquiring accommodation.”

Elias J (§57) accepted the submission of the Secretary of State that s.3 did not operate so as to block the use of s.2 powers to provide accommodation which it was disabled from providing under s.185 of the Housing Act 1996, and we are not asked to revisit that question. But he went on (at §58):

“Of course, the mere fact that the power exists does not mean that the local authority is obliged to exercise it in any particular case.”

Mr McGuire accepts this; but he points out also – and correctly – that not infrequently the facts are such that the only lawful decision is to exercise the power in question. That, he submits, is the case where, but for a measure which is incompatible with his Convention rights, the claimant would be entitled to a benefit which the authority has power to provide under another measure. Such a power, in such circumstances, becomes a duty.

Mr McGuire has a perhaps unexpected ally in Mr Pannick. Although Mr Pannick’s principal stance is that Mr Badu, not being a British citizen, derives no benefit from the declaration of incompatibility made in Mrs Morris’s case, he points out in oral argument that one effect of s.6(1) of the Human Rights Act may be to turn a power into a duty by operation of law. This will paradigmatically be the case where a failure to use the power would mean that a public authority was acting incompatibly with a Convention right. Mr McGuire says that, given the declared incompatibility of s.185(4), that is this case.

Mr Bhose’s anchorage for his principal argument is s.6 (2)(b) of the Human Rights Act. The first two subsections read as follows:

Public Authorities

6.

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

(2)

Subsection (1) does not apply to an act if-

(a)

as the result of one or more 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 or enforce those provisions.

In R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29 the House of Lords had to consider, among other things, whether admittedly unjustified sex discrimination in the statutory provision for payment of certain benefits was prevented by s.6(2) from being cured by the making of equivalent ex gratia payments. The House unanimously held that the common law power of the Crown to make such payments was shielded by s.6(2), so as to afford the Crown a defence to a claim under ss.6(1) and 7(1) for failing to make such payments. Lord Hoffmann pointed out that, unlike s.6(2)(a), which protects acts which are necessary in order to give effect to legislation, s.6(2)(b)

“assumes that the public authority could have acted differently but nevertheless excludes liability if it was giving effect to a statutory provision which cannot be read as Convention-compliant…” (§49).

Lord Hoffmann went on to explain that

“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” (§51).

The description Lord Hoffmann gave to the effect of s.6(2)(b) on the decision not to pay ex gratia was that it “immunised” the decision against a s.6(1) challenge – not that it, any more than s.6(2)(a), either forbade or demanded such a decision. Lord Hope, agreeing, approached s.6(2) as creating two exceptions to the general rule set out in s.6(1), both designed to protect Parliamentary sovereignty where interpretation in accordance with s.3 cannot produce compliance. He recognised that paragraph (b) was addressed to the exercise of discretions, whether founded in statute or common law. He focused on exercises of discretion which are designed to give effect to non-compatible provisions of primary legislation (see §§72, 73), whereas the present argument is about exercises of discretion designed to compensate for such non-compatible provisions. Nevertheless, what Lord Hope said at §73 is of general application:

“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.”

Neither this decision of their Lordships, nor their contemporaneous decision in Wilkinson [2005] UKHL 30, supports Mr Bhose’s strong argument that a public authority is precluded by the Human Rights Act or by the common law from using one of its statutory powers to assist a person whom it has been obliged to refuse under another of its statutory powers or duties. (We have not heard argument on the possibility, rejected by Elias J in J, that s.3 of the Local Government Act 2000 does forbid such a use of s.2.) It would take a great deal to persuade me that this was right: it would mean, among other things, taking away a range of discretions which Parliament itself has given to public authorities, and turning every application for help into a once-for-all gamble, dependant upon which power the applicant has decided to invoke. It is also an argument which has nothing logically to do with Convention-compatibility. What Hooper does in my respectful view establish is that a power to make alternative provision does not become a duty simply because the principal power is subject to statutory restrictions which are incompatible with Convention rights.

By parity of reasoning, all such powers remain in being. But is it then open to the public authority in whom they are vested, if minded to do so, to use them for the purpose of circumventing or replacing the non-compliant one? Once the purpose of s.6(2) is recognised as being the preservation of Parliamentary sovereignty, the answer must be no. Such a use of power would have an illicit purpose. Thus a local authority which resolved to use s.17(6) of the Children Act in all cases which fell foul of s.185(4) of the Housing Act would in my judgment be abusing its powers.

It is therefore in the triangle formed by these three points that the lawful exercise of powers such as those cited by Mr McGuire lies. The local authority (a) is not obliged but (b) is permitted to use its alternative powers, so long as (c) it does not exercise them with the object simply of circumventing restrictions – even restrictions which are incompatible with Convention rights - built into the impugned power. Once in this space, the exercise of each discretion will be subject to the familiar requirements of public law, but that is all.

One of these – the requirement to take all relevant matters into account – will, however, in Mr McGuire’s submission, require the authority in considering whether to exercise each of the alternative powers he relies on to have in mind and give weight to the fact that the condition which has shut the applicant out of priority need status is non-compliant with the Convention. I do not think this is right. What the authority needs to have regard to is the obligation under s.3 to interpret its alternative powers, so far as possible, compatibly with the Convention rights, and its duty under s.6(1) not to exercise those alternative powers incompatibly with the Convention rights. These powers are by definition different from the provision which has been declared incompatible. If in exercising them the authority is not entitled, short of being required to do so by statute, to hold against Mr Badu his child’s immigration status, that will be because of s.6(1), not s.4, of the Human Rights Act. In other words the incompatibility of s.185(4) with the Convention rights will not be legally relevant to the potential use of the surrogate powers.

Subject to the parties’ submissions when they receive the drafts of our judgments, I would remit to the London Borough of Lambeth Mr Badu’s application for assistance so that it may be reconsidered – rapidly, I would hope - in the light of this court’s conclusion and reasoning. To this end I would stand over the question of relief, and any intervening issues of law or of fact, for trial by a single judge of the Administrative Court if the application continues thereafter to be disputed. In such an event, the hearing in the Administrative Court is to be expedited.