Morris, R (on the application of) v Westminster Ciry Council (2)

The issue which this case originally raised was set out in the introduction to an earlier judgment which I handed down in this case on 13 October 2003:

“Homeless persons are regarded as having a priority need for accommodation if they have dependent children living with them. In that event, the local housing authority has to ensure that they are provided with accommodation. If they do not have a priority need, the local housing authority may secure accommodation for them, but is not obliged to do so. The question which this case raises is whether a homeless person has a priority need if, unusually, the child is subject to immigration control but the parent is not.”

I decided that where the child is subject to immigration control but the parent is not, the parent is not to be regarded as having a priority need for accommodation.

The facts of the case were fully set out in my earlier judgment. For present purposes, all that needs to be said is that the claimant comes from Mauritius. She has a daughter now aged 3 and is her daughter’s sole carer. They arrived in the UK in April 2002, and were given leave to enter as visitors. Their leave to remain in the UK expired on 10 June 2002. They did not leave the UK then. Instead, the claimant applied for a British passport on the basis that she was a British citizen by descent. That status was subsequently recognised, and on 9 August 2002 she obtained a British passport. At the time of the last hearing, it was thought that her daughter was not eligible for British citizenship, and that she remained a citizen of Mauritius alone.

The claimant and her daughter lived with relatives until August 2002 when the claimant’s aunt, who lived in Westminster, refused to let them stay any longer. The claimant applied to the defendant, Westminster City Council (“the Council”), for accommodation under Part VII of the Housing Act 1996 (“the Act”) which relates to homelessness. That application was finally refused on 7 October 2002 on the basis that the claimant was not in priority need of accommodation. Section 189(1)(b) of the Act provides that “a person with whom dependent children reside or might reasonably be expected to reside” will have a priority need for accommodation, but the Council decided that the claimant could not rely on the need to accommodate her daughter as giving her a priority need for accommodation because of her daughter’s immigration status. The claimant requested a review of that decision, but by its letter dated 18 November 2002 to the claimant the Council confirmed its decision. That was the decision challenged on this claim for judicial review, which was heard on 16 September 2003.

In reaching the conclusion that the claimant’s daughter’s immigration status was decisive, the Council relied on section 185 of the Act, which provides:

“(1)

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

(2)

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

(2A) No person who is excluded from entitlement to housing benefit by section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) shall be included in any class prescribed under subsection (2).

(3)

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

(4)

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

(a)

is homeless or threatened with homelessness, or

(b)

has a priority need for accommodation.”

It was common ground that the claimant’s daughter was “subject to immigration control within the meaning of the Asylum and Immigration Act 1996”, and that she was not included in any class prescribed by regulations made by the Secretary of State. The Council’s case was that section 185(2) therefore prevented her from being eligible for housing assistance, and since she was to be treated as coming from abroad, section 185(4) prevented the claimant from relying on her daughter to bring herself (the claimant) within the class of persons identified by section 189(1)(b) as having a priority need for accommodation. I agreed with this argument. Applying the ordinary canons of statutory construction, I concluded in my judgment of 13 October 2003 that the claimant’s daughter was “a person from abroad who is not eligible for housing assistance” within the meaning of section 185(4). The Council therefore had had to disregard her in determining whether the claimant had a priority need for accommodation.

However, my judgment continued:

“But that is not the end of the matter. The claimant’s case is that this construction of section 185(4) prevents her and her daughter from being able to enjoy their right to respect for their home and their family life under Art. 8 of the European Convention on Human Rights (‘the ECHR’) in the way that other people can. In short, the question is whether the Council’s refusal to treat the claimant as having a priority need for accommodation in circumstances where a parent with a dependent child who was not subject to immigration control would have been treated as having a priority need for accommodation amounted to an infringement of her right under Art. 14 of the ECHR to permit her rights under the ECHR to be enjoyed without discrimination (‘the discrimination issue’). If that argument is correct, two further issues arise. First, is it possible for section 185(4) to be read and given effect in a way which is compatible with the right guaranteed by Art. 14 as required by section 3(1) of the Human Rights Act 1998 (‘the HRA’) (‘the construction issue’)? Secondly, if not, and if section 185(4) is therefore incompatible with the right guaranteed by Art. 14, should the Court make a declaration of that incompatibility as permitted by section 4(2) of the HRA (‘the declaration issue’)?

I did not think that it was appropriate for me to address those issues until the Crown had been given by the Court the notice required by rule 19.4A(1) of the Civil Procedure Rules. That notice was given, and on 14 November 2003 the First Secretary of State decided to intervene in the proceedings as an interested party, subject to an important reservation to which I shall return in a moment. Accordingly, a second hearing was convened to address the discrimination, construction and declaration issues. The hearing took an unexpected turn, and this is the Court’s judgment following that hearing.

The reservation which the Secretary of State had was that the proceedings had become “entirely academic” because the claimant’s daughter had by then ceased to be subject to immigration control. Indeed, she had ceased to be subject to immigration control well before the previous hearing on 16 September 2003. That came as a surprise to everyone. What had happened was this.

Following the grant of British citizenship to the claimant, she instructed Sheridans, a firm of solicitors, to apply for British citizenship for her daughter. Sheridans were not the solicitors who represent her on this claim. Those solicitors are TMK. Sheridans duly applied on 11 October 2002 for a British passport for the claimant’s daughter, presumably on the basis that she should be regarded as a British citizen by descent. That application failed, no doubt on the basis that to acquire British citizenship by descent, at least one of the applicant’s parents has to have been a British citizen otherwise than by descent: see section 2(1)(a) of the British Nationality Act 1981 (“the 1981 Act”). Sheridans were informed of the failure of that application by a letter from the UK Passport Service dated 31 October 2002.

In the meantime, Sheridans had submitted an application for British citizenship for the claimant’s daughter. That was submitted on 22 October 2002. The application was made under section 3(1) of the 1981 Act, which provides:

“If while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.”

That application succeeded, and the claimant’s daughter was registered as a British citizen on 12 June 2003. That was well after the Council had made the decision which is being challenged (18 November 2002), and after the claimant’s claim for judicial review had been issued (7 January 2003). Indeed, it was a few days after Collins J. had given permission for the claim for judicial review to proceed (9 June 2003), but well before the previous hearing before me (16 September 2003).

Although Sheridans were informed of the change in the immigration status of the claimant’s daughter, that news did not reach either the claimant or TMK. Sheridans wrote to the claimant on 13 June 2003 to inform her of the registration of her daughter as a British citizen, but she had moved to another address. She had not given them her new address, and presumably had not even told them that she had moved. That would not have been a problem if Sheridans had informed TMK about the change in her daughter’s status. They did not do that, presumably because they did not know about the claimant’s claim against the Council, and who was representing her on that claim. And although TMK knew that Sheridans had applied for a British passport for the claimant’s daughter (because the claimant had provided TMK with the UK Passport Service’s letter of 31 October 2002 to Sheridans before the issue of the claim for judicial review), TMK did not know of the application which Sheridans had made for British citizenship for the claimant’s daughter.

The combination of neither the claimant nor TMK knowing about the grant of British citizenship to the claimant’s daughter meant that neither the Council nor the Court was informed about it either. The previous hearing therefore took place on a wholly false premise. TMK only heard of the grant of British citizenship to the claimant’s daughter from the Treasury Solicitor when they received the Treasury Solicitor’s letter to that effect of 4 November 2003, the Treasury Solicitor having decided to find out about the claimant’s daughter’s immigration status after being notified of the judgment of 13 October 2003.

This is neither the time nor the place to apportion responsibility for what happened. TMK accepts that with the benefit of hindsight it would have been desirable for them to have made enquiries of Sheridans, though I do not think that they should be criticised for not having done that: they were unaware of the application which Sheridans had made under section 3(1) of the 1981 Act or that such an application could have been made. But it cannot, I think, be gainsaid that the claimant should have told TMK of the application which Sheridans had made for British citizenship for her daughter (assuming that she had been aware of that), and that she should have kept Sheridans informed of any new address to which she moved.

In that connection, what had happened was that following the Council’s decision that the claimant did not have a priority need for accommodation, the claimant (as I have said) sought a review of that decision. Pending the determination of that review, the Council paid for temporary accommodation for her in Westcliffe-on-Sea within the administrative area of Southend Borough Council (“Southend”). When the Council confirmed its decision that the claimant did not have a priority need for accommodation, the claimant was evicted. Southend then agreed to provide her with temporary accommodation. Southend took the view that the responsibility for accommodating the claimant remained with the Council, but it was willing to provide her with accommodation under the Children Act 1989 (“the 1989 Act”) while she took steps to establish that the Council was responsible for housing her. For a while she was accommodated in the Palace Hotel. She complains that the accommodation was unsuitable for her, no doubt reflecting the differences between the obligations owed by local authorities under the 1989 and 1996 Acts. The obligation under the latter is to secure “suitable accommodation” (section 206(1)(b)), whereas the obligation under the former is simply a general duty to provide a range and level of services appropriate to the needs of children in the local authority’s area (section 17(1)).

Had it been known prior to the hearing on 16 September 2003 that the claimant’s daughter had been registered as a British citizen, and was therefore no longer subject to immigration control, it is inconceivable that the hearing would have gone ahead. What would have happened is that the claimant would have re-applied to the Council or Southend to be accommodated on the basis that she was in priority need. The date fixed for the hearing of the claim would have been vacated pending the outcome of that application. One thing is clear. The issue which was canvassed and decided then, and the issues which the earlier judgment left outstanding, would not have been litigated at all. Those issues no longer arose on the claimant’s case.

There is now an additional reason why those issues no longer arise on the claimant’s case. Her circumstances have considerably improved. She is working part-time, and she has received an offer of employment which she will be starting shortly. She has also saved sufficient money for a deposit to rent a flat in the private sector, and she has no intention of relying on the public sector for assistance with her housing needs or those of her daughter. Thus, the issues which this hearing was to address are as far removed from the claimant’s case as they could be.

In these circumstances, the question arises as to whether the proceedings should continue at all. The claimant has no interest in the proceedings herself, but she has told TMK that she wants the proceedings to continue because she is very bitter about the time she spent in the Palace Hotel, which was a direct result of the Council’s view that it had to disregard her daughter when considering whether she had a priority need for accommodation. She does not want mothers with young children to have to undergo a similar experience. That is pretty rich coming as it does from someone whose failure to keep her solicitors informed of her new address has resulted in very considerable public funds being expended on a case which would never have proceeded if her daughter’s new immigration status had been disclosed to TMK, the Council and the Court. Having said that, though, the Court has to address the question whether the claim should be permitted to proceed in the light of the facts as they are now.

The circumstances in which it is appropriate to permit a claim to proceed when the claimant no longer needs a remedy for himself or herself were considered by the Court of Appeal in R v. British Broadcasting Corporationex p. Quintavelle (1998) 10 Admin LR 425. In that case, the BBC decided not to transmit a party political broadcast in the run-up to the 1997 general election on the ground that it offended good taste. Leave to apply for judicial review of that decision was sought as a matter of urgency, but leave was refused. An appeal was lodged, but by the time the appeal was heard the general election had taken place. On behalf of the appellant, it was said that the case would provide valuable guidance on the content of party political broadcasts in the future. Lord Woolf MR (as he then was) said that the Court’s decision on whether to grant leave

“….. should be governed by two principal considerations. First, whether there is any relief which the applicant could appropriately be granted in this context, which would be of value to those who have to decide matters such as this. Secondly, whether the present application is an appropriate vehicle for providing that guidance.”

Although the Court accepted that “what should be the BBC’s approach to applications for transmission, particularly at a time of an imminent general election, is a matter of great public importance”, the Court refused to grant leave. Having concluded that the law on the topic did not need to be clarified, the Court did not think that the case was a suitable vehicle for guidance on the content of party political broadcasts to be given. The case related to one particular broadcast, and future broadcasts would have to be looked at afresh.

What is the result of the application of the two governing considerations in Quintavelle to the present case? I deal first with the first of the two considerations. In that connection, it is important to note that it focuses on the relief which could be granted. So even if the present case is an appropriate vehicle for an illuminating and valuable debate on the questions which the discrimination, construction and declaration issues raise, the critical question is whether there is appropriate relief which can be granted upon the resolution of those issues.

Mr Matthew Hutchings for the claimant in effect contended that the relief which had always been sought on the claimant’s behalf could, with one exception, still be sought. The relief originally sought (but altered to reflect the case which is advanced on her behalf) was

All parties were fully prepared for a hearing which addressed those issues. In those circumstances, it was tempting to say: “We’re all ready to argue the issues, so let’s get on with it.” Attractive though that stance is from a pragmatic point of view, it rather dilutes the purity of the principle that courts are there to decide disputes between the litigants. So if for one reason or another a litigant no longer needs the relief which he or she originally sought, the time and resources of the courts should not be squandered on debating issues of academic interest to the litigants. In any event, it would not be right for the court to permit the proceedings to continue simply because the parties have spent valuable public funds in preparing for this hearing. It would have been open to TMK, once it discovered that the claimant’s daughter was no longer subject to immigration control, to ask the court to decide whether the case should nevertheless go ahead as a test case. That would have made much of the preparation which has had to be done for this hearing unnecessary. In fairness to TMK, Mr Hutchings told me that that was what he had advised TMK to do, and TMK had sought funding for a hearing for that limited purpose following representations by the Treasury Solicitor to the Legal Services Commission that funding should not continue. In the event, the Legal Services Commission increased the claimant’s funding to enable the claim to proceed.

So the question whether this case is the appropriate vehicle for the resolution of the discrimination, construction and declaration issues has to be decided on its merits, not by reference to the parties’ readiness to argue the case now. In my view, that turns in good measure on the extent to which those issues are fact-sensitive. In one sense, of course, the claimant’s case is not fact-sensitive at all, because the facts are not in dispute. But it goes without saying that the more the resolution of general principles is dependent on the particular facts of the case which gives rise to the need to determine those principles, the less likely will it be appropriate for those principles to be decided in the context of that particular case.

Two possible reasons were advanced by Ms Lisa Giovanetti for the Secretary of State for saying that the facts of the present case - as they were when the decision challenged was taken - might be of such limited application as to prevent the case from being a suitable vehicle for the determination of the discrimination, construction and declaration issues. First, section 189(1)(b) of the 1996 Act sets out only one of the classes of persons treated by section 189(1) as having a priority need for accommodation. Other classes are:

“(a)

a pregnant woman or a person with whom she resides 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.”

Some of these persons, particularly those in (d), may have no family life to be protected under Art. 8. That may be so, but I do not think that the fact that other persons to whom section 189(1) applies are not at risk of an infringement of their right to family life makes the discrimination issue which arose on the particular facts of the claimant’s case one of only limited application. The issue is whether the refusal to treat a homeless person as having a priority need for accommodation simply because that person’s dependent child is subject to immigration control, whereas a homeless person would have been treated as having a priority need for accommodation if that person’s dependent child was not subject to immigration control, amounted to an infringement of their right under Art. 14 to permit them to enjoy their right to family life under Art. 8 without discrimination. This is an important issue to be decided. Mr Hutchings and TMK have received a number of enquiries about the progress of this case. I was not informed why those enquiries were being made, but it is a fair guess that at least some of them related to persons in the particular position of the claimant and her daughter prior to the change in the latter’s immigration status.

Secondly, immigration control covers a wide spectrum of persons – from those who enter the UK unlawfully, to those who (like the claimant’s daughter) remain in the UK unlawfully, i.e. in breach of the conditions attached to their leave to enter, to those who remain in the UK lawfully, but are subject to conditions, for example that they are not to have recourse to public funds. It may be entirely justifiable for some of the classes of persons who are subject to immigration control to be disregarded for the purpose of section 185(4), but not for other classes. Again, that may be so, but that does not make the issues which arose on the particular facts of the claimant’s case ones of only limited application. Even if the issues were limited to the rights of overstayers, the issues would still be important ones to be decided.

In the circumstances, I have concluded, albeit after some hesitation, that the fact that none of the relief sought could have any practical impact on the claimant should not prevent her claim from continuing. The development of the law would be enhanced, and the need for local authorities to know where they stand on section 185(4) when it comes to overstayers who are subject to immigration control, would be met, by the Court’s rulings on the issues which arose on the particular facts of the claimant’s case. This would not be an example of the court deciding the case on hypothetical facts: the court would be deciding the case on the basis of the facts as they were when the Council took the decision which is challenged.

In reaching this conclusion, I have not overlooked the important point that relief on a claim for judicial review is entirely discretionary. But that point was more relevant to an alternative way in which Mr Hutchings advanced his argument – namely, that the claimant and her daughter were each a victim of the Council’s unlawful act within the meaning of section 7(7) of the HRA and Art. 34 of the ECHR, and that that entitled the claimant to bring this claim for judicial review under section 7(1) of the HRA. The fact that the claimant ceased to be adversely affected by section 185(4) on 12 June 2003 when her daughter ceased to be subject to immigration control was said to be immaterial in the light of the jurisprudence of the European Court on the topic. Although Ms Giovanetti strongly contended that this argument was flawed, I do not need to address it in view of my conclusion on the primary way in which Mr Hutchings put his case.

For these reasons, despite my strong initial misgivings, I have been persuaded that the claimant’s claim should proceed. I am fortified in that view by the stance taken by both the Council and the Secretary of State. Neither of them contended that the claim should not proceed. The Council wanted the claim to proceed, but elected not to advance any arguments as to why it should proceed. The Secretary of State took a neutral stance, but through Ms Giovanetti drew my attention to features of the case which I ought to take into account. The case will now be re-listed for hearing on dates convenient to counsel.

In order to save the parties the expense of attending court when this judgment is handed down, I leave it to the parties to see whether an order for the costs of the hearing can be agreed. Subject to argument, I would have thought that an order that the costs be in the case would be appropriate. I doubt whether the Council or the Secretary of State would seek permission to appeal since neither of them was contending that the claim should not proceed. But if either of them wish to apply for permission to appeal, or if a suitable order for costs cannot be agreed, I give liberty to the parties to apply for those issues to be determined by me. Any such application should be filed within 14 days of the handing down of this judgment, and I will consider such applications without a hearing on the basis of any written representations which the parties wish to make.