Lekpo- Bozua v London Borough of Hackney

This is an application for permission to appeal which was adjourned by the Single Lord Justice for consideration after hearing argument from the parties.

The appellant is a British Citizen who lives with her niece, Océane, a French citizen, in the London Borough of Hackney. The proceedings concern the obligations of the local housing authority, in this case Hackney Borough Council, under Section 193 of the Housing Act 1996 to provide housing for a person who is homeless, eligible for assistance, has a priority need and has not become homeless intentionally.

The applicant became homeless as a result of domestic violence and in August 2008 applied to the council for accommodation. The council accepted that she was eligible for assistance and had a priority need because she was a person with whom a dependant child resided, but it considered that Océane was “a restricted person” within the meaning of section 184(7), so that its duty to re-house her was the more limited duty imposed by section 193(2) and (7)(AA) of the Act. That meant that its duty to the applicant continued only until she accepted or refused an offer of private accommodation as defined in section 193(7AC).

The applicant considered that the council owed her a full housing duty and sought a review of its decision. In June 2009 the reviewing officer upheld the council’s decision. The applicant was dissatisfied and appealed to the county court. Her appeal was heard by HHJ John Mitchell in the Clerkenwell and Shoreditch County Court. The statutory provisions which apply in this case are complex, but it is unnecessary to recite them in detail because it is common ground that the outcome of the proceedings depends essentially on whether Océane has the right to reside freely in the United Kingdom under Article 18 of the EU Treaty. If she has such a right, the council owes the applicant a full housing duty; if she does not, it owes her only the more limited duty.

Article 18(1) of the treaty provides:

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States subject to the limitations and conditions laid down by the Treaty and by the measures adopted to give it effect.”

It is common ground that the limitations and conditions are contained in Directive 2004/38/EC, which was implemented in this country by the Immigration (European Economic Area) Regulations 2006. Regulation 14(1) provides that a qualified person is entitled to reside in the United Kingdom for so long as he or she remains a qualified person. A qualified person is defined in Regulation 6(1), but it was agreed before the judge that Océane does not fall within the language of any of the definitions there set out. On the face of the legislation, therefore, the position appears to be clear, but the applicant says that there is a lacuna in the directive, which, in accordance with the case law of the Court of Justice in the European Union, the reviewing officer should have filled by treating Océane as having the right to reside freely in the United Kingdom.

That submission, which seems to be a bold one on the face of it, is based on the decision of the ECJ in the case of Baumbast v SSHD (Case C-413009) [2002] ECR-701 which has been considered in a number of cases in this jurisdiction which were drawn to the judge’s attention. In summary, the principle is that limitations and conditions are to be applied in accordance with the general principles of community law and in particular the principle of proportionality. If it can be seen that there is an accidental lacuna in the Directive, Article 18(1) must be applied to fill it where it is plainly appropriate for a person to have a right of residence by virtue of being a citizen of the union. Where, however, it is possible to discern in the Directive a deliberate intention to exclude a particular class of persons, it is not legitimate to resort to Article 18(1), since to do so would undermine the Directive.

At the time of the council’s decision Océane had lived in this country as a dependant of her aunt for nine years. She had been educated here and received state benefits just as she were a citizen of the United Kingdom. The applicant said that there obviously a lacuna in the Directive and the Regulations, which should therefore interpreted as applying to her. The council argued to the contrary. It has submitted that the Directive, and accordingly the Regulations, have been carefully worded. Specific provision was made in Regulation 6 for students studying in Member States, but the definition of a student is worded in such a way as to exclude Océane, first because it includes only those who have comprehensive sickness insurance cover, which she does not, and second because it extends only to those who can satisfy the Secretary of State that they have sufficient resources not to become a burden on social assistance during their period of residence, which she cannot. The Regulations also make provision for family members, but they are defined in terms which do not extend to Océane.

The judge reached the conclusion that there was no inadvertent lacuna into which a person in Océane’s position fell. He held that she simply failed to meet the requirements of the Regulations.

The applicant now seeks permission to appeal on the following grounds: (i) that the issues fall within the scope of Article 8 of the European Court on Human Rights because the duty on local authorities to provide housing for the homeless is designed to preserve family life, and in this case the legislation discriminates between a foreign national in the position of Océane and a British child, which is not justified; (ii) the fact that Océane was resident in this country and had access as a right to the National Health Service means that the condition in Regulation 6 that a student must have health insurance is irrelevant or satisfied in a case; (iii) that in any event there is a lacuna in the Directive and the Regulations if they give rise to a breach of human rights recognised by European Law and that itself is enough to bring Article 18 into play; and (iv) that in light of recent developments in the case law of the European Court it is no longer necessary to find a lacuna before considering the question of proportionality.

In the skeleton argument prepared for this hearing the council substantially repeats the arguments it made to the court below. I am greatly indebted to Miss Bhogal who has explained those arguments and why this case falls to be determined by existing authority. It is fair to say that the council’s skeleton does not grapple in detail with some of the points raised in the applicant’s skeleton, but that seems to me be because they were not advanced, or at least not advanced in such detail, until very recently. She does, however, submit that a scheme which enables the council to discharge its duty by means of an assured short-hold tenancy cannot fall foul of the European Convention on Human Rights.

As I have already indicated, the principles of law applicable in this case are in some respects quite complex and require an understanding of the case law of the European Court. I remind myself that this is an application for permission to make a second appeal because the proceedings in the country court were themselves an appeal from the decision of the reviewing officer. Accordingly, permission to appeal should only be granted if the cases raises an important point of principle or practice or there is some other reason why an appeal should be heard by this court.

In my view, the grounds of appeal cannot be said wholly to lack prospects of success, and the case does, in my view, raise issues that are of general importance. It is possible that clarification of certain aspects of European law may be required. Mr Samuels has helpfully provided me with copies of the very recent decisions of the European Court in the cases of Teixeira v Lambeth and Ibrahim v Harrow. Unfortunately, it has not been possible to digest those fully in the time available, but it remains to be seen to what extent any further clarification may be required of the principles that apply in this area.

For all these reasons I have reached the conclusion that this is a case which ought to be heard by this court and that therefore permission to appeal should be granted. Miss Bhogal has submitted that I should perhaps limit the scope of the permission to some, but not all, of the grounds which the applicant seeks to raise. In my view, that would not be a satisfactory course to take in this case. I think the right course therefore is to give permission to appeal generally. Miss Bhogal also makes the point that some of the arguments raised in the applicant’s skeleton argument do not currently feature in its notice and grounds of appeal. In response to that observation, Mr Samuels has applied for permission to amend, should it be necessary for him to do so. It seems to me to be highly desirable that the notice of appeal should reflect accurately all the grounds upon which the appeal is to be conducted to ensure that counsel, the court and anyone else who may be interested in this matter is properly aware of the issues that arise. I will hear counsel further before making an order; but I am prepared in principle to give permission to amend the notice of appeal to ensure that it properly reflects all the points raised in the skeleton argument.