Burns, R (on the application of) v London Borough of Southwark

MR JUSTICE GAGE: The issue in this case involves the interaction between a local authority's duties and obligations in respect of homeless persons under the Housing Act 1996 and the Home Office's right to control immigration. It involves some complex legislative provisions, but in the end the issue, in my judgment, is a narrow one. It arises in this way.

The claimant was born in Nigeria in April 1964. She arrived in this country in October 1982 on a visitor's visa together with her two young daughters. She was not married to the children's father. Shortly after arrival she heard that her father, a politician, had been killed and she became frightened to return to Nigeria. In July 1990 she gave birth to a son, the father of whom was her ex-partner from Nigeria and with whom she had been reunited. However, that relationship ended about one year after her son was born. In 1995 she applied for political asylum.

In 1997 she met Thomas Burns. They became friendly and formed a relationship which led to marriage on 26th February 1997. Mr Burns is an Irishman. Sadly, the marriage did not endure and in due course he ceased to come home. In December 1998 the claimant asked him not to return. I have been told that his whereabouts at this time is not known.

In the meantime the application for political asylum was still pending. However, following her marriage she was advised by solicitors to make a fresh application on the basis of her marriage. She has never divorced Mr Burns, nor has he divorced her. During the marriage the claimant lived with Mr Burns at 247 Wendover House, Thurlow Street, London SE17. She continued to live there up to March 2004 together with her three children who are now aged 20, 15 and 14.

In March 2004 the defendant took proceedings for possession of 247 Wendover House on the ground of non-payment of rent. Her case is that the rent arrears built up due to her not receiving housing benefit. On 16th March 2004 the claimant was evicted from Wendover House by the defendant. On 17th March she went to the Housing Unit of the defendant seeking assistance as a homeless person. On 18th March solicitors acting for her wrote a letter before action and on the same day obtained an injunction from the court requiring the defendant to provide the claimant with accommodation. That injunction has been continued pending this hearing.

On 19th March the defendant refused assistance. The refusal was sent by letter. In the second paragraph it says:

By a letter dated 26th March 2003 solicitors acting for the claimant asked for a review of that decision and sought discretionary assistance. By a letter dated 31st March 2004 the defendant indicated that the matter would be subject to review but refused assistance pending the review. It is that letter which is the subject of these proceedings and I refer to three paragraphs in it, starting with the second paragraph which reads:

The claimant's case is that the defendant in that letter, refusing to exercise his powers under section 188(3) of the Housing Act 1996 to provide accommodation to her, has acted irrationally or unreasonably. The defendant's case is that the claimant is a person subject to immigration control and therefore not eligible for housing assistance. The issue therefore turns on the claimant's status in this country. Her case is that she is entitled to remain in the United Kingdom by virtue of the fact that she is married to an Irish national, and as such is not a person subject to immigration control. She has rights of residence as a family member of a European Economic Area national.

I turn therefore to the statutory provisions and deal first with the Housing Act 1996. A local authority has a statutory duty under Part 7 of the 1996 Act to provide housing assistance for homeless persons, provided an application for assistance is made pursuant to section 183. On such an application the local authority becomes under an obligation to make inquiries to satisfy itself that the applicant is eligible for assistance and, if so, what duty it owes to the homeless person. I refer now to section 184(1) and (3) of the Housing Act. Section 184 reads:

Such a decision can be the subject of a review under section 202, and the decision on review can itself be challenged under section 204. Once a local authority has made its inquiries, the decision must be communicated to the applicant. Section 188 provides, in the event of a favourable decision, a duty on the local authority to provide accommodation. Section 188(1) reads:

If the decision is adverse to the applicant and a review is sought the local authority may grant assistance to the applicant under section 188(3) which reads:

The exercise of the discretion under section 188(3) is subject to criteria set out in R v Camden London Borough Council ex parte Mohammed [1997] 30 HLR 315, which is the decision referred to in the letter of 31st March, and to which I shall have to refer later. In this case the defendant has decided that the claimant is not eligible for assistance because she is a person from abroad and ineligible for assistance. Its decision, which is the decision under review, is set out in the letter of 31st March 2004 which is signed by Mr Albert Quarcoopome, whose statement is before the court. The claimant is a person from abroad but her claim is that she is entitled to assistance as the spouse of an EEA national and is not subject to immigration control.

I turn now to the immigration legislation. British citizens have a right of abode in the United Kingdom, pursuant to section 2(1)(a) of the Immigration Act 1971. Section 3(1)(a) of the Immigration Act 1971 provides under the heading "General provisions for regulation and control":

Section 7 of the Immigration Act deals with Community rights of nationals of Member States. Subsection 1 of that section reads:

Finally, section 13 of the 1996 Immigration Act defines a person subject to immigration control in subsection 2 in the following way:

Article 4 of the European Union Directive 68/360 states as follows:

So one then turns to the right of European Economic Area nationals, as set out in The Immigration (European Economic Area) Regulations 2000. Regulation 2 states, in what appears to be a definition or an interpretation of Regulations, under Regulation 2(1):

(a) and (b) are not material. (c) is:

Then further down:

And then further on:

Regulation 14 is entitled "Rights of residence" and is relied upon by the claimant in this case. It reads:

Regulation 21(3)(b) is part of the regulation which deals with exclusion and removal from the United Kingdom.

It is submitted by Mr Berry, on behalf of the claimant, that this regulation underlines the status of an EEA national. It is a right to work and live in other European Community countries and is not dependent on being granted rights in this country by the Government.

I must now make further reference to residence permits. I have already referred to Regulation 2. It is necessary before dealing with Regulation 15, which specifically deals with the issue of residence permits, to refer briefly to Regulations 5 and 6. Regulation 5 is headed "Qualified person". Paragraph (1) reads:

Regulation 6 deals with family members. Paragraph (1) reads:

Then it goes on to deal with the position of spouses of other persons entitled to be in the United Kingdom by virtue of the European Directives. So I come to Regulation 15 headed "Issue of residence permits and residence documents". Paragraph (1) reads:

The claimant claims the right of residence in this country by virtue of the fact that she is married to Mr Burns, himself a European Economic Area national who lived and worked in this country. There is no dispute that if this is the case she has a good arguable case to remain in this country as the primary carer of children of a person who was a migrant worker in the host Member State as defined and as set out in Baumbast v Secretary of State for the Home Department (Case C - 413/99) [2002] 3 CMLR 23 ECJ.

Finally, I have been referred to the Homelessness (England) Regulations 2000. Regulation 3 deals with persons who are subject to immigration control but who are nevertheless eligible for housing assistance. I am not concerned with this regulation. Regulation 4 deals with persons from abroad who are ineligible for housing assistance. The claimant relies on it to support her case. Mr Berry submits that the effect of this regulation is to provide that some EU nationals not subject to immigration control are, even if not habitually resident in the United Kingdom, nevertheless entitled to benefit. In that respect they are better off, he submits, than British citizens. It is unnecessary for me to recite the whole of that regulation. It reads in the material part relied on by the claimant:

I now turn to the submissions in relation to the decision in this case. As I indicated during the course of argument and now conclude, in the end the issue is a narrow one. The claimant submits that in this case, when exercising its discretionary powers under section 188(3), the defendant has an obligation, if not a duty, to inquire into the claimant's status in this country. It is submitted that without doing that it cannot decide the issue of eligibility.

Here it is submitted that the defendant has fettered its discretion by going no further than the Secretary of State's decision refusing a residence permit under Regulation 15 of the Immigration (EEA) Regulations 2000. It is submitted that what the defendant ought to have done is to make its own quick assessment on the material available to it. That material is contained in the claimant's solicitors' letter stating that she is married to an Irish national (marriage certificate supplied) who was working in this country as a national of a European Community state. What it is not entitled to do, it is submitted, is to go no further than the refusal by the Secretary of State of a residence permit where there is an appeal pending. Mr Berry submits that to do as the defendant did in this case is not to apply the facts to the low threshold provided by section 188(1) and (3) of the Housing Act 1996. He further submits that that frustrates the objects of free movement of workers within Community states and the application of European Community rights within Member States.

Mr Swirsky, for the defendant, submits that it is reasonable for the defendant to rely on the Secretary of State's decision. To do otherwise would, he submits, be to raise the possibility of conflicting decisions between a local authority and the Secretary of State on immigration matters. In any event the Home Office is the department primarily responsible for immigration. Mr Swirsky relies on the fact that the question of the grant or refusal of a residence permit is not a rubber stamp exercise. It involves the Secretary of State in making inquiries and making a decision based on those inquiries, something which is better done by the Home Department than a local authority.

Each party has referred to the decision of Latham J, as he then was, in R v Camden London Borough Council ex parte Mohammed. In that decision Latham J set out the criteria applicable to the exercise by the local authority of its discretion under section 188(3). I quote from the second paragraph on page 321 of the judgment:

The discussion or the statement of the first criteria, being the merits of the case, has been the subject of other judicial comment. Brooke LJ, in the case of R v London Borough of Newham ex parte Anthony Lumley CO/4390/99 unreported, said this at paragraph 54:

Mr Berry submits that the defendant has an obligation when exercising its discretion to look at the merits of this claimant's claim for eligibility. Mr Swirsky submits that the inquiries must be read in the light of dicta of Hale LJ in R v Wandsworth London Borough Council ex parte O & another [2000] 1 WLR 2539 to which I now refer. The part I propose to refer to, and on which counsel on both sides rely, is at page 2557. It reads from letter D:

Mr Swirsky, on behalf of the defendant, relies to some considerable extent on that paragraph and the following paragraphs, to which I will refer in a moment. Mr Berry, on the other hand, points out that that was a case where there were no criteria for eligibility, as opposed in this case where eligibility is set out as a statutory requirement. Hale LJ continues at F:

Both sides also have made reference to, and rely on, the Secretary of State's guidance to local authorities issued pursuant to section 182 of the Housing Act 1996. The guidance contains a number of passages under the chapter entitled "Eligibility for Assistance". I do not refer to all that have been cited by counsel, but just one or two. Paragraphs 5.1 and 5.2, under the heading "General" read:

Turning to Annex 14, Mr Berry in particular relies on question 11 which states: "Are you any of the following?", and (ii) reads:

Mr Berry submits that the Council are there given the guidance that they should have trained staff capable of making the appropriate inquiries. Perhaps one other citation from the guidance is necessary, 5.7:

No such inquiry was made in this case. Mr Swirsky submits that it was unnecessary since it was an agreed fact that the Secretary of State had refused to grant a residence permit.

The judgment which I have to make is whether the decision of the defendant in its letter of 31st March 2004 was unlawful in the sense that it was either irrational and/or unreasonable or both. My view is that it was not. Whilst a local authority has an obligation to make inquiries about an applicant's eligibility, it seems to me that where the Secretary of State has refused a residence permit, the local authority is entitled, when exercising its discretion under section 188(3) of the Act, to take that decision at face value. It might be different if the applicant was awaiting a decision of the Secretary of State but where as here a resident permit has been refused, it seems to me that it is reasonable for the defendant to work on the basis of that evidence without making its own inquiries.

I take into account the submissions that have been made on behalf of the claimant about the delay, as it has been experienced in this case, that may be caused, but in my view the passage in Ex parte O to which I have referred has some application to this situation. Although the guidance exhorts local authorities to have trained employees who can deal with immigration issues in respect of eligibility, it must be the Home Office European Union unit which will have more experience on such matters.

In my judgment, it cannot be unreasonable for the defendant in such a case, and in particular in this case, to have relied on the evidence of the Secretary of State's refusal. Looking at the letter itself, to which I have referred, it seems to me that the defendant considered that and the other matters set out in this letter before exercising its discretion and then making its decision.

In the circumstances, in my judgment, it conforms to the criteria set out in Ex parte Mohammed, and in my view it does not display any errors or flaws. In the circumstances, in my judgment, this application for judicial review must be refused.

MR BERRY: My Lord, there are two matters I have to deal with. They relate to the question of whether or not we can seek permission to appeal, and also the issue of costs in this matter in respect of my client's case. I do not know what application my friend has to make in relation to costs.

MR JUSTICE GAGE: Shall we wait and see what application he is going to make?

MR BERRY: In relation to the appeal, my Lord, I do not know if you wish to deal with that first.

MR JUSTICE GAGE: Let us deal with them logically one at a time, costs first. Mr Swirsky?

MR SWIRSKY: We have won, so we would ask for our costs.

MR JUSTICE GAGE: I take it that she has legal assistance support.

MR SWIRSKY: No.

MR JUSTICE GAGE: She has not?

MR BERRY: My Lord, the position is that Legal Services Commission funding was refused on the assessment of the means test rather than on the merits test. At the time she had made her application she was not paying housing costs because she did not have any housing costs at the time, and so no amount was allowed in the application for an assessment of that. That has been the subject of challenge by those instructing me on the construction of the Legal Services Commission funding regulations, but there is no right of appeal to the funding appeal board as there is on the merits test, and the dispute is outstanding. A fresh application was made last Friday under an emergency certificate but the actual grant of that certificate in terms of whether or not it is well made out has not yet been decided. It may be that for today's purposes we are covered, but it looks as if for work up until last Friday there was no certificate in force.

MR JUSTICE GAGE: I think that all I can do is to make an order for costs, but as to the question of enforcement, you must have liberty to apply.

MR BERRY: If we were to be legally aided then we would ask for the order where although we have to bear the costs, there would be, in my understanding, a section 11 order that whether or not the claimant or the Legal Services Commission should bear the costs would need to be assessed first.

MR JUSTICE GAGE: That is why I give you liberty to apply, because that can then be resolved if and when the position is known.

MR BERRY: My Lord, there is one final matter in relation to the issue of costs, and that is that Collins J, in directing that the matter came to court initially, looked at the issue of costs in the beginning of this application where there had been no decision under section 184, and also there had been no decision for a refusal to grant accommodation under section 188(1). If your Lordship turns to the --

MR JUSTICE GAGE: So you say that you were entitled to either costs or not have to pay the costs of the initial?

MR BERRY: If the defendant -- it is page 106.

MR JUSTICE GAGE: We are now in the problem that that is where my bundle goes wrong. Just read it out to me.

MR BERRY: He adjourned the application for oral hearing on notice in eight days.

So the duty there in question was the duty under section 188(1) to provide accommodation at that stage.

MR JUSTICE GAGE: What they did then was make a further decision.

MR BERRY: They made the section 184 duty --

MR JUSTICE GAGE: What are you saying, Mr Berry? What are you asking for?

MR BERRY: We are asking for our costs up until the timing of the section 184 decision because pending a decision there is a duty to accommodate under section 188, and there was no accommodation.

MR JUSTICE GAGE: Yes, I have the point.

MR SWIRSKY: My Lord, the history of this case is that the 184 decision was made on the previous Friday, before the order of Collins J. You have already referred to that letter in your judgment.

MR JUSTICE GAGE: Without looking at the documents, just tell me what your point is.

MR SWIRSKY: The point is that the decision was made on 19th March. The hearing in front of Collins J was on the 22nd, and it was made without his Lordship being informed that we had already conceded that there was a duty, and we had made the decision under section 184. So the matter should not have been before Collins J on 22nd March because at that point there was no jurisdiction to make any order for interim accommodation. There was no application at that stage for review. The application for review was not made until 26th March.

MR JUSTICE GAGE: You say it was premature?

MR SWIRSKY: They made the application on the papers to Andrew Smith J. That was not premature but something went wrong and Collins J was not informed that the decision had been made at that time that he made his conditional costs order. I do not criticise anyone unduly; these things happen. But in these circumstances when it is fairly clear that the decision letter was given to the claimant personally on the 19th, and an injunction was sought after that weekend, it is surprising that the claimant seek those costs at the end of the case when they have lost.

MR JUSTICE GAGE: Yes.

MR BERRY: My Lord, that is not my understanding. What happened was that the claim was filed on 18th March, which was a Thursday, and an application for consideration on the papers was made. There was no decision on that and so an interim order was sought by telephone on Thursday, 18th March. That was the interim relief. The defendant never made a decision to provide this accommodation under section 188(1) pending the decision under section 184. What the defendant did do on Friday the 19th was to make a decision on section 184, thus obviating the need for a decision under section 188(1). There was no decision letter under section 188(1) which was why we had to go to court. What Collins J --

MR JUSTICE GAGE: He was not told.

MR BERRY: When his Lordship considered it the following Monday, he was considering the urgent application on the papers which had been lodged on Thursday the 18th. His Lordship had not been informed at the time he made the decision that a section 184 decision had been made. It had only been handed to my client on the previous Friday and the weekend had intervened. His Lordship's view was referring to such a period before a 184 decision was made. So in respect of the period before such a decision was made, my Lord, we ought to have our costs in respect of that period of time.

MR JUSTICE GAGE: In effect the defendant has won, perhaps not everything. Doing the best I can in the circumstances I propose to order that the claimant pays 80 per cent of the defendant's costs, subject to the claimant having the right to apply within 14 days if it appears that she has the support of the Legal Services Commission for today's hearing.

MR BERRY: I am grateful. There is just one further point in relation to the application last Friday for a new Legal Services Commission certificate. It may be that we do have that; it will be granted. May we have an order for detailed assessment of the claimant's privately funded costs under that certificate, subject to 14 days to file it in court.

MR JUSTICE GAGE: Yes, that would at least save you having to put that in an application. I cannot see the reason why you should not have that, on condition that you have it.

MR BERRY: Indeed.

MR SWIRSKY: My Lord, the 80 per cent of the costs you have ordered, you said they are subject to a detailed assessment?

MR JUSTICE GAGE: Yes. Unless you can agree them. Now you want to talk about appeal.

MR BERRY: I am in the difficult position of asking for permission to appeal.

MR JUSTICE GAGE: No, it is not at all difficult. I entirely recognise it. I think that my provisional view, subject to any submission of yours, is that this is one of those matters that you have to go to the Court of Appeal to seek permission from it.

MR BERRY: My Lord, I will not detain you further, save for the observation that there is a point about the way in which your Lordship has outlined the relationship between local authorities and central government creates an obstacle to the furtherance of Community rights, and given that your Lordship did draw attention to the delay in this case we would say there are some rather compelling reasons why it should be heard on appeal.

MR JUSTICE GAGE: You will, I am afraid, have to explain that to one of the members of the Court of Appeal. Thank you both very much. I am genuinely grateful for your assistance in an area which is, some might say, a little archaic.