Morris, R (on the application of) v Westminster City Council & Anor

In this claim for judicial review, the Claimant seeks various declarations relating to the true construction of section 185(4)(b) of the Housing Act 1996 (“the 1996 Act”) and the compatibility of section 185 with Art. 14 of the European Convention on Human Rights (“the Convention”). But the claim has an unusual history, which has been chronicled in two previous judgments of mine given on 13 October 2003 ([2003] EWHC 2266 (Admin)) and 26 May 2004 ([2004] EWHC 1199 (Admin)) respectively. For present purposes, the following passages in my judgment of 26 May 2004 set out the background:

“1.

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.

2.

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.

3.

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.

4.

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.

5.

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 …..”

The First Secretary of State’s intervention was subject to one reservation. When the Treasury Solicitor was notified of my judgment of 13 October 2003, the Treasury Solicitor made enquiries about the Claimant’s daughter’s immigration status. It was discovered that she had been registered as a British citizen on 12 June 2003, and had therefore no longer been subject to immigration control. In these circumstances, the Claimant had been in priority need for accommodation since then, and on the assumption that her application for accommodation would be decided on that basis, she no longer needed a remedy for herself. Moreover, the Claimant’s circumstances had considerably improved in the meantime, and she no longer intended to rely on the public sector for assistance with her housing needs and those of her daughter.

Despite his concern as to whether the Claimant’s claim should be permitted to proceed, the First Secretary of State did not object to the claim proceeding. For their part, both the Claimant and the Council wanted the claim to proceed. Not without hesitation, I decided that the claim should proceed, and my judgment of 26 May 2004 explains why I reached that conclusion. I therefore directed that the case be re-listed for the discrimination, construction and declaration issues to be argued. This is the Court’s judgment following that hearing.

Art. 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Mr Matthew Hutchings for the Claimant argued that the Court’s refusal to treat her 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 to enjoy her right to respect for her family life under Art. 8 without discrimination.

In Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, Brooke LJ (with whom the other members of the Court agreed) identified the approach which courts should usually adopt when dealing with a claim which raises Art. 14. At [20] he said:

“It appears to me that it will usually be convenient for a court, when invited to consider an article 14 issue, to approach its task in a structured way. For this purpose I adopt the structure suggested by Steven Grosz, Jack Beatson QC and the late Peter Duffy QC in their book Human Rights: the 1998 Act and the European Convention (2000). If a court follows this model it should ask itself the four questions I set out below. If the answer to any of the four questions is ‘No’, then the claim is likely to fail, and it is in general unnecessary to proceed to the next question. These questions are as follows. (i) Do the facts fall within the ambit of one or more of the substantive Convention provisions (for the relevant Convention rights see section 1(1) of the Human Rights Act 1998)? (ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison (‘the chosen comparators’) on the other? (iii) Were the chosen comparators in an analogous situation to the complainant’s situation? (iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship on proportionality to the aim sought to be achieved?”

He added at [22] that this classification was only a “framework”, and that there was “a potential overlap between the considerations that are relevant when determining, at any rate, the last two, and possibly the last three, questions”. He also pointed out that there may sometimes “be a need for caution about treating the four questions as a series of hurdles, to be surmounted in turn”, and that questions (iii) and (iv) tended “to merge into” each other. Subject to one reservation, all counsel agreed that this approach was appropriate for the present case.

Their reservation related to a fifth question which needs to be asked, since Art. 14 on the face of it only prohibits discrimination on certain specified grounds. The question was first formulated by Stanley Burnton J in R (Carson) v Secretary of State for Work and Pensions [2002] EWHC 978 (Admin) at [52]:

“[I]s the basis for the treatment of the complainant as against the chosen comparators based on any ground such as sex, race, colour, language ….. or other status within the meaning of Art. 14?”

Although Stanley Burnton J thought that this question might be encapsulated in the third question, it is now plain that this question is a free-standing one. That is borne out by what Lord Steyn said in R (S) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196 at [42]. Building on Brooke LJ’s classification, as amplified in Carson, he interposed a fifth free-standing question, between Brooke LJ’s second and third questions:

“If so, was the difference in treatment [between the complainant and others put forward for comparison] on one or more of the prohibited grounds under article 14?”

Baroness Hale of Richmond had said much the same thing in Ghaidan v Godin-Mendoza [2004] 3 WLR 113 at [133-134], though she did not think it appropriate to identify at what stage in the analysis the further question would always be asked.

I agree with counsel that it is appropriate for Brooke LJ’s classification, with the additional new question, to be applied to this case. I therefore deal with each of the five questions in turn.

(i) Ambit. It is well established in European jurisprudence that there does not have to have been a breach of one of the substantive articles of the Convention for Art. 14 to be engaged: see, for example, the Belgian Linguistics Case (No. 2) (1968) 1 EHRR 252 at [9]. If it were otherwise, Art. 14 would have hardly any effect. If there was not a breach of a substantive article, Art. 14 would not be engaged. If there was a breach of a substantive article, there would be a breach of a Convention right irrespective of Art. 14. Moreover, the jurisprudence shows that Art. 14 can apply to rights which a State chooses to guarantee, even if it is not obliged to do so: see the comments of Lord Nicholls and Baroness Hale of Richmond in Ghaidan at [6] and [135] respectively. If a State chooses to legislate in a particular area, it must not do so in a discriminatory manner. But it is not every area in which the State chooses to legislate that it must not act in a discriminatory manner. Art. 14 is only engaged when the State legislates in an area which falls within the ambit of one of the substantive rights in the Convention.

In this case, the substantive right relied upon is Art. 8 which provides so far as material:

“1.

Everyone has the right to respect for his private and family life, his home and his correspondence.”

It is accepted that the restrictions on the right to housing assistance under Part VII of the Act do not amount to a breach of Art. 8. That is because Art. 8 does not give anyone the right to be provided with a home. As Lord Scott of Foscote said in Harrow London Borough Council v Qazi [2003] 3 WLR 792 at [125]:

“Article 8 was intended to deal with the arbitrary intrusion by state or public authorities into a citizen’s home life. It was not intended to operate as an amendment or improvement of whatever social housing legislation the signatory state had chosen to enact. There is nothing in Strasbourg case law to suggest the contrary.”

But Art. 8 focuses not only on respect for one’s home, but also for one’s family life. Accordingly, what is contended is that having chosen to confer the right for parents with dependent children to be provided with housing assistance, any restriction on that right should not be discriminatory because that is State intervention in an area which falls within the ambit of the right to respect for one’s family life in Art. 8.

The test for determining whether the area in which the State has chosen to legislate falls within the ambit of one of the substantive rights in the Convention is somewhat elusive. In Petrovic v Austria (1998) 33 EHRR 307, the European Court of Human Rights said at [28]:

“The Court has said on many occasions that Article 14 comes into play whenever ‘the subject matter of the disadvantage ….. constitutes one of the modalities, of the exercise of the right guaranteed’, or the measures complained of are ‘linked to the exercise of a right guaranteed’.”

These concepts are not all that easy to grasp, and perhaps the test is best understood by looking at examples of the way the concepts have been applied. Thus, in Petrovic itself, the complaint related to the refusal of the Austrian authorities to grant to men a parental leave allowance which was available to women. The court held that Art. 8 itself was not infringed since it did not impose any particular obligation on the State to provide financial assistance of the kind in question. But it nevertheless held that Art. 14 was engaged. It said at [27] and [29]:

“….. this allowance paid by the State is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children ….. By granting parental leave allowance States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the allowance therefore comes within the scope of that provision. It follows that Article 14 – taken together with Article 8 – is applicable.”

Accordingly, since (a) the payment of the parental leave allowance was intended to promote family life (because it enabled one of the parents to stay at home to look after the children), and (b) the promotion of family life was one of the aims of Art. 8, the legislation relating to parental leave allowance fell within the ambit of Art. 8 so as to engage Art. 14.

It follows that if the relevant provisions in Part VII of the 1996 Act were intended to promote family life, any discriminatory restrictions on such rights as those provisions created on any of the prohibited grounds would amount to an infringement of Art. 14. This was the argument advanced by Mr Hutchings, and Ms Lisa Giovanetti for the First Secretary of State did not contend otherwise. What she contended was that Part VII of the 1996 Act was not specifically intended to promote family life. Its intention was to provide a comprehensive regime to combat homelessness, one element of which was to provide assistance for vulnerable persons who have a priority need for accommodation (sections 188 and 193). Persons with dependent children are just one category of the vulnerable (see section 189). The 1996 Act could not have been intended to keep families together at all costs. That is apparent from the fact that parents with dependent children are only entitled to be provided with accommodation if they did not become homeless intentionally. If they became homeless intentionally, the provision of accommodation is dependent on the local housing authority’s discretion (see section 192(3)).

I cannot go along with this argument. The ultimate predecessor of Part VII of the 1996 Act was the Housing (Homeless Persons) Act 1977 (“the 1977 Act”). Of the 1977 Act, Lord Wilberforce said in Din v Wandsworth London Borough Council [1983] AC 657 at p.663G that “it is designed for the expressed purpose of bringing families together”. At p.668D-G, Lord Fraser of Tullybelton said:

“While 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 the 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 purposes 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 intended 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 expect to reside with him’: (section 2(1)(a)).”

The language of sections 1(1)(a) and 2(1)(a) of the 1977 Act were reproduced in sections 176(a) and 189(1)(b) of the 1996 Act. Thus, what Lord Fraser described as one of the “main purposes” of the 1977 Act, i.e. the need to prevent the splitting up of families, must be treated as one of the main purposes of Part VII of the 1996 Act. The fact that Part VII does not mandate families being kept together at all costs does not mean that one of its aims was not to keep families together wherever possible.

In any event, what may or may not have been the main purpose of Part VII 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 VII 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.

Mr David Warner for the Council adopted a different line of attack. His argument, reduced to its core, was that the rights conferred by Part VII of the 1996 Act were part of the general welfare regime which was held by the Court of Appeal in Carson v Secretary of State for Work and Pensions [2003] EWCA Civ 797 to be beyond the scope of Art. 8. Thus, other welfare provisions, such as those in Part III of the Children Act 1989, cater for the situation where a dependent child is homeless. I do not agree. In R (G) v Barnet London Borough Council [2003] 3 WLR 1194, the House of Lords held that Part III of the Children Act 1989 did not oblige a local authority to provide accommodation to enable a dependent child to live with its parents. But apart from that, the provision of accommodation to the homeless parents of dependent children is specifically dealt with by Part VII of the 1996 Act. Even if there had been a final safety net elsewhere to prevent them from being split up or on the streets, the existence of such a safety net 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. And once that intention has been recognised, the necessary link between the relevant provisions in Part VII and Art. 8 has been established.

For these reasons, the facts of the case, in my view, fall within the ambit of Art. 8.

(ii) Difference in treatment. The Claimant’s advisers have chosen two comparators: (a) an applicant for housing assistance under Part VII of the 1996 Act who is a British citizen and who has a dependent child who is not subject to immigration control, and (b) an applicant for housing assistance who is a British citizen and who is pregnant at the time of her application. It is not disputed that these comparators would have had a priority need for accommodation under section 189(1), and would have been entitled to housing assistance under sections 188 and 193 if they were, or were believed to be, homeless and eligible for assistance, and if, in the case of the comparator in (a), the child might reasonably be expected to reside with her. There was, therefore, a difference in treatment between the Claimant and her chosen comparators.

(iii) Prohibited ground. In order for the difference in treatment between the Claimant and her chosen comparators to infringe Art. 14, the difference in treatment has to have been on one of the prohibited grounds, namely

“….. any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

Her case is that the difference in treatment was because of her daughter’s nationality. No other case was advanced on her behalf. For example, it was not contended that, if the difference in treatment was not because of her daughter’s nationality, but because of her daughter’s status as someone who was subject to immigration control, that amounted to a difference in treatment on a ground relating to her daughter’s status.

It should be noted that the word “nationality” is not used in Art. 14. Art. 14 talks of “national ….. origin”. But in Gaygusuz v Austria (1996) 23 EHRR 364, the European Court of Human Rights equated nationality with national origin. In that case, an emergency advance on the applicant’s pension was refused on the ground that, subject to certain exceptions, the legislation prohibited the payment of such an advance to a non-Austrian national such as the applicant. The court said at [41] that “his nationality” was “a ground of discrimination covered by Article 14”, though it looks as if any possible distinction between nationality and national origin was not addressed. Both the Council and the First Secretary of State were content for me to proceed on the basis that national origin equated with nationality, but they reserve the right to argue the contrary elsewhere.

At first blush, it seems obvious that the difference in treatment between the Claimant and her chosen comparators was because of her daughter’s nationality. It is true that, unlike the legislation in Gaygusuz, section 185 does not speak of nationality. Instead, it uses the phrases “from abroad” and “subject to immigration control”. But section 185(2) provides that the phrase “subject to immigration control” has to be given the meaning assigned to it by the Immigration and Asylum Act 1996. Section 13(2) of the Immigration and Asylum Act 1996 provides that the phrase “‘person subject to immigration control’ means 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)”. Section 3(1) of the Immigration Act 1971 in effect exempts only British citizens from the requirement to obtain leave to enter or remain in the UK. Thus, a person who is subject to immigration control within the meaning of section 185(2) can be equated with someone who is not a British citizen.

But that is far from being the end of the matter. The whole of section 185 has to be considered, together with the regulations made under it, since it is the whole of the relevant statutory scheme which has to be addressed. The governing provision is section 185(1), because that is the provision which identifies the class of persons who are not eligible for assistance under Part VII: that class comprises persons from abroad who are “ineligible for housing assistance”. Section 185 then proceeds to identify two categories of persons who are to be treated as “ineligible for housing assistance”. Those two categories of persons are identified in sections 185(2) and 185(3):

Against that background, the core point taken by the First Secretary of State and the Council is that the critical dividing line between those who are eligible for assistance under Part VII and those who are not is long-term residence in the British Isles, not nationality. Nationality is not the dividing line because

I cannot accept this argument. Concentrating on the first of the two categories of persons who are to be treated as ineligible for housing assistance, i.e. the class of persons to whom section 185(2) relates, the fact is that that category of persons encompasses exclusively persons who are subject to immigration control. It therefore applies only to those persons who are in effect not British citizens. I appreciate that the Secretary of State has created, in reg. 3 of the 2000 Regulations various exceptions, but the dividing line in section 185(2) between those who are eligible for assistance under Part VII and those who are not is nationality, because non-British citizens are ineligible for such assistance unless they come within any of the exceptions. Very few of them will come within the exceptions for persons who are habitually resident within the British Isles because (a) the overwhelming majority of non-British citizens from abroad will not be habitually resident in the British Isles, and (b) they will not have unconditional leave to enter or remain in the UK. Simply because there may be a relatively small number of non-British citizens from abroad who will be eligible for assistance because they come within the exceptions created by reg. 3 is insufficient to justify saying that the dividing line in section 185(2) between those who are eligible for assistance under Part VII and those who are not is something other than nationality.

That is borne out by Gaygusuz. There were two exceptions to the rule that non-Austrian nationals were not entitled to an emergency advance on their pension. First, they were entitled to the advance if they had been born in Austria and had lived uninterruptedly in Austria since their birth or if they had lived uninterruptedly in Austria since 1930. Secondly, the relevant minister was entitled to grant the advance to unemployed nationals of other countries which granted a similar advance to Austrian nationals, and to unemployed persons who had been employed in Austria for three years making compulsory unemployment insurance contributions. The European Court did not regard the existence of these exceptions to the rule as undermining its conclusion that the rule discriminated on the ground of nationality. It may be different, of course, if the exception to the rule is in such wide terms that the rule can no longer be regarded as the norm. But that cannot be the case with the exceptions to section 185(2).

If section 185(2) is viewed in that light, section 185(3) can make no difference. Section 185(3) increased the categories of persons who would not be eligible for assistance under Part VII. Persons who are ineligible for assistance under Part VII by virtue of section 185(2) because they are subject to immigration control and do not come within any of the exceptions in reg. 3 will not become eligible for assistance as a result of the single exception created by reg. 4.

For these reasons, the difference in treatment between the Claimant and her chosen comparators was on one of the grounds prohibited by Art. 14., namely national origin.

(iv) Analogous situation. The Council did not contend that the situation of the Claimant’s chosen comparators was not analogous to the situation of the Claimant. However, the First Secretary of State did contend that. In the Court of Appeal in Carson, Laws LJ said at [61] that questions (iii) and (iv) posed in Michalak (now questions (iv) and (v)) could be asked compendiously:

“…..are the circumstances of X and Y so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X?”

Ms Giovanetti contended that on the facts of the present case, the single compendious question identified by Laws LJ could be formulated (at any rate so far as the Claimant’s first chosen comparator is concerned) as follows:

“X is an individual with a dependent child who has unconditional permission to reside permanently in the UK. X is eligible for homelessness provision. Y is an individual with a dependent child who is in the UK as a visitor. Y is not eligible for homelessness provision. Would a rational and fair-minded person consider that a positive justification for this difference in treatment was called for?”

She submitted that the answer to that question should be no. I disagree. If one adds into the equation the fact that both X and Y are British citizens, the answer seems to me to be clear. Positive justification for the difference in treatment between them is called for.

Whether the situation of the second of the Claimant’s comparators was analogous to the situation of the Claimant is less clear-cut. I acknowledge that the priority need of that comparator was not dependent on someone else, but the need for accommodation is just as compelling for a pregnant woman as it is for a mother with a dependent child. However, I do not have to reach a conclusion about the second of the Claimant’s chosen comparators in view of the conclusion which I have reached about the first.

(v) Justification. The European jurisprudence shows that a difference in treatment must have an objective and reasonable justification if it is to be regarded as non-discriminatory. For such justification to be established, it has to be shown that the difference in treatment (a) pursues a legitimate aim, and (b) bears a reasonable relationship of proportionality between the aim sought to be realised and the means used to achieve it.

In the past, local authorities generally discharged their duties to homeless persons by providing them with secure tenancies from their own housing stock or by ensuring that they were re-housed under assured tenancies by registered social landlords. The automatic priority for accommodation which the homeless enjoyed meant that they often got what were in effect tenancies for life at a below market rent, whereas those who were not homeless, but were nevertheless living in unsuitable accommodation, had to wait much longer to be allocated suitable accommodation. The 1996 Act attempted to address this problem by

At about the same time as the proposals which ultimately formed Parts VI and VII of the 1996 Act were being considered, there was a drive to restrict the eligibility of persons from abroad for accessing welfare benefits, including housing assistance. It had always been a requirement of the Immigration Rules that persons coming to the UK should be able to support and accommodate themselves without recourse to public funds. It was thought to be wrong for people who come to the UK on the basis that they could provide for themselves to receive benefits paid for by the taxes of UK residents. It was against this background that concerns were expressed about local authorities being required to accommodate persons who met the statutory criteria for homelessness assistance, but who would not be entitled to claim housing benefit. Since such people would often be unable to contribute to their housing costs without housing benefit, an unreasonable burden could well be placed on local authorities.

Accordingly, section 185 of the 1996 Act was one of a number of statutory initiatives intended to give effect to the policy

“….. that those who have not established a right to remain permanently in the UK, who are settled here on an undertaking that their relatives will support them, or whose entry is conditional on them not having recourse to public funds, should not have welfare provision on the same basis as those whose citizenship or immigration status gives them an entitlement to benefits when in need” (para. 25 of the witness statement of Terrie Alafat, Director of the Homelessness and Housing Support Directorate at the Office of the Deputy Prime Minister).

In the context of housing, that policy was to be achieved by releasing local authorities from the duty of housing the homeless if they are subject to immigration control (which would itself enable more long-term accommodation to be available for persons who are not subject to immigration control), and by denying such persons access to housing benefit. In that way, it was hoped that (a) people would be less likely to come to the UK to claim benefits or services (“benefit tourism”), and (b) people who were in the UK illegally would be more likely to regularise their status: see para. 25 of Ms Alafat’s witness statement. These aims are perfectly legitimate, and Mr Hutchings did not suggest otherwise.

It follows that the critical question is whether the measures in section 185 which resulted in the difference in treatment between the Claimant and that of her chosen comparators amounted to a reasonable and proportionate way of achieving these aims. The Court’s approach to that question should be informed by what Lord Nicholls said in Ghaidan at [19]:

“….. Parliament is charged with the primary responsibility for deciding the best way of dealing with social problems. The court’s role is one of review. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person’s Convention rights. The readiness of the court to depart from the view of the legislature depends upon the subject matter of the legislation and of the complaint. National housing policy is a field where the court will be less ready to intervene. Parliament has to hold a fair balance between the competing interests of tenants and landlords, taking into account broad issues of social and economic policy. But, even in such a field, where the alleged violation comprises differential treatment based on grounds such as race or sex or sexual orientation the court will scrutinise with intensity any reason said to constitute justification. The reasons must be cogent if such differential treatment is to be justified.”

To that list can be added differential treatment on the ground of nationality since the Court in Gaygusuz said that “very weighty reasons” had to be shown if differential treatment on the ground of nationality was to be justified.

Although one of the aims of section 185 was to encourage illegal entrants to regularise their status in the UK, it is difficult to see why section 185 would encourage them to do that. If they applied for leave to remain in the UK, any such leave would only be granted on the basis that they would not have recourse to public funds. Thus, they would still be ineligible for housing assistance under Part VII. That is hardly an incentive for illegal entrants to regularise their stay. It is true that when the Claimant’s daughter’s application for British citizenship was granted, the Claimant became eligible for housing assistance under Part VII. But that was not a case of someone remaining subject to immigration control. It was a case of someone ceasing to be subject to immigration control because they acquired British citizenship.

The aim of discouraging benefit tourism is, in my view, a different matter – especially when the benefit which is sought, namely temporary accommodation which may well turn out in practice to be long-term accommodation, is a scarce commodity for which the demand exceeds the supply. I have no reason to doubt that a measure such as section 185 is likely to deter some persons from abroad from coming to the UK and claiming such a benefit, thus making the benefit more available for persons already in the UK. But this case is only about section 185(4), and I have no reason whatever to suppose that section 185(4) would deter persons who were not themselves subject to immigration control, i.e. British citizens, and who have dependent children abroad, from bringing them to the UK simply to render themselves eligible for housing assistance under Part VII. If they bring their dependent children into the UK, they do so because they want to live with them and provide for them here, not because the consequence of that would be that the British citizen would be treated by section 189(1)(b) of the 1996 Act as having a priority need for accommodation, but for the fact that that right is trumped by section 185(4). The same applies to the other categories of persons in sections 189(1)(a) and 189(1)(c) of the 1996 Act. In short, I have not been persuaded at all that the principal aim which the First Secretary of State says section 185(4) was intended to achieve is, or even is likely to be, achieved by it. If a particular measure which would otherwise be discriminatory is unlikely to achieve the result which it was intended to achieve, the difference in treatment between persons on the ground of their nationality which the measure produces can hardly be a reasonable and proportionate way of achieving that result.

I have not overlooked the point made on behalf of both the Council and the Secretary of State that the effect of section 185(4) was not to create a comprehensive prohibition on the provision of temporary accommodation to a homeless person in the position of the Claimant. It simply prevented her from being treated as having a priority need for accommodation. Although local authorities are not obliged to accommodate them, local authorities may nevertheless do so: see section 192(3) of the 1996 Act. In addition, other powers are available under Part III of the Children Act 1989 and section 2 of the Local Government Act 2000 which might be invoked as a final safety net to prevent families from being split up or on the streets if the circumstances warrant their invocation. All that is true, and if I had found that section 185(4) was likely to achieve what it was intended to achieve, I might have regarded the existence of these powers as providing the means whereby hard cases could be considered sympathetically and therefore justifying section 185(4). But as I have said, I do not believe that section 185(4) is likely to achieve what it was intended to achieve.

Conclusion on the discrimination issue. For these reasons, I have concluded that 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 to enjoy her right to respect for her family life under Art. 8 without discrimination.

Mr Hutchings had originally contended that if the discrimination issue was decided in the Claimant’s favour, section 185(4) could be read in a way which made it compatible with Art. 14. That was his stance at the first hearing of this claim (see para. 18 of my judgment of 13 October 2003), and in para. 87 of his skeleton argument for the latest hearing. However, in the light of what the House of Lords had to say in Ghaidan about the correct approach to section 3(1) of the Human Rights Act 1998, he accepted at the later hearing that it was difficult for him to contend that section 185(4) could be read in a way which made it compatible with Art. 14. That was the stance which the Council had always adopted, and the First Secretary of State did not argue otherwise.

I agree with the stance now adopted on all sides. If I were to read section 185(4) in such a way as made it compatible with Art. 14, I would be falling into the trap of amending section 185(4), not interpreting it. To use the words of Lord Rodger of Earlsferry in Ghaidan at [110], I would be changing “a provision from one which Parliament says that x is to happen into one saying that x is not to happen”.

That brings me to the declaration issue. Three objections to the making of a declaration are advanced on behalf of the First Secretary of State. First, in R (on the application of J) v Enfield London Borough Council [2002] 2 FLR 1, Elias J held at [72] that where a Convention right would be infringed if a local authority concluded that it was not open to it to exercise a particular power which it had, but that the infringement could be avoided by exercising some other power which it had, the power to exercise that other power becomes a duty to exercise it. The rationale presumably is that no local authority could reasonably refuse in the exercise of its discretion to exercise that power if the effect of refusing to do so would be to infringe a person’s Convention rights. It may be that this reasoning does not apply to some legislative measures. For example, it is possible that the effect of the decision of the House of Lords in R (G) v Barnet London Borough Council [2003] 3 WLR 1194 is that Elias J’s reasoning does not apply to some of the provisions in Part III of the Children Act 1989. But Ms Giovanetti contended that there was no reason why it should not apply to a local authority’s power under section 192(3) of the 1996 Act to secure accommodation for persons to whom the full homelessness duty would have been owed but for the fact that the local authority is not satisfied that they have a priority need for accommodation. In these circumstances, Ms Giovanetti argued that I should not make a declaration of incompatibility. I disagree. It may be that the consequences of the incompatibility of section 185(4) with Art. 14 can be ameliorated by converting the power in section 192(3) into a duty. But that does not make section 185(4) any the less incompatible with Art. 14. Its incompatibility should be brought home by a formal declaration under section 4(2) of the Human Rights Act 1998.

Secondly, it is said that if the incompatibility of section 185(4) with Art. 14 arises at all, it does not arise because of the language of section 185(4), but because of the current extent of the regulations made under section 185(2), which could have provided for additional categories of persons who are subject to immigration control nevertheless to be eligible for housing assistance. I cannot go along with this argument either. It may be that the incompatibility could be remedied by promulgating new regulations under section 185(2), though the limitation on that power contained in section 185(2A) could well prevent even that. But even if the incompatibility could be remedied in that way, the fact remains that the incompatibility arises because of the primary legislation. Section 185(4) is incompatible with Art. 14 because, by section 185(2), persons are ineligible for housing assistance if they are subject to immigration control.

Thirdly, it is said that I should not exercise my discretion to make a declaration of incompatibility because the claim is academic on the facts of the Claimant’s case, and she now wishes to secure accommodation for herself and her daughter in the private sector. That is tantamount to saying that this is not an appropriate case in which to make a declaration of incompatibility. I dealt with that argument in my judgment of 26 May 2004 and rejected it.

Accordingly, I have concluded that I should make a declaration of incompatibility, and I declare that section 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.

I do not think it appropriate to grant any relief other than to make that declaration. As I told the parties at the conclusion of the hearing, I wish to spare the parties the expense of attending court when this judgment is handed down. I leave it to the parties to see whether an appropriate order for the costs of the claim can be agreed. In case such an order cannot be agreed, I give the parties liberty to apply for the issue of costs to be determined by me. The same applies to the Council and the First Secretary of State if they wish to apply for permission to appeal, and to the Claimant if she wishes to cross-appeal against the decision in my judgment of 13 October 2003 about the proper construction of section 185(4) applying the ordinary canons of construction. Any such application for permission to appeal should be filed within 7 days of the handing down of this judgment, and I will consider such an application without a hearing on the basis of any written representations which the parties wish to make.