Maryam Mohamed, R (on the application of) v London Borough of Harrow

MR JUSTICE JACKSON: This judgment is in nine parts, namely:

This is a claim for judicial review of a decision made by the defendant local authority to the effect that the claimant is not eligible to receive interim accommodation under section 188(3) of the Housing Act 1996.

A crucial feature of this case is that the claimant is a Dutch national and is therefore a national of a state in the European Economic Area. The European Economic Area ("EEA") comprises all EU states, together with Iceland, Liechtenstein and Norway. The EEA was created by the Treaty of Oporto signed on 2nd May 1992. The purpose of the EEA is to facilitate the free movement of goods, services, persons and capital between different EEA states. Another crucial feature of this case is that the claimant is an EU citizen with the rights conferred upon her by the treaties and subordinate legislation of the EU.

In the course of this judgment, I shall refer to the European Court of Justice as "the ECJ".

Before I delve into the circumstances of the present case, it is first necessary to set out the legislative framework.

Part 7 of the Housing Act 1996 (the 1996 Act) makes provision for the homeless. Section 184 of the 1996 Act provides:

Section 202 of the 1996 Act enables an applicant to seek a review of an unfavourable decision. Section 204 of the 1996 Act provides:

If a local authority acts unlawfully in the exercise of its interim power to accommodate (for example by failing to consider relevant factors), then the resulting decision may be challenged. If the decision was made under section 188(3), the challenge is brought in the Administrative Court by way of judicial review. If the decision was made under section 204(4), then any challenge is brought in the county court in accordance with section 204A of the 1996 Act.

Let me turn now to some EU law which is relevant to the issues in this case. The EC Treaty (which is part of the EU Treaty) includes the following:

On 15th October 1968, the Council of the European Communities issued Regulation (EEC) 1612/68 concerning the freedom of movement of workers within the Community. I shall refer to this as "Regulation 1612/68". Title I of Part 1 of Regulation 1612/68 is entitled "Eligibility for Employment" and it comprises Articles 1 to 7. These articles enable a national of any Member State to apply for and obtain employment in any other Member State. These articles are therefore of benefit to persons seeking employment. I shall refer to such persons as "work seekers." In this judgment, I shall refer to the 7 articles which comprise Title 1 of Part 1 of Regulations 1612/68 as "Title I".

Title II of Part 1 of Regulation 1612/68 is entitled "Employment and Equality of Treatment" and it comprises Article 7 to 9. I shall refer to the three articles which comprise Title II of Part 1 of Regulation 1612/68 as "Title II". Article 7 provides:

Regulation 1612/68 is subsidiary legislation which gives effect to Article 39 of the EC Treaty. Although Article 39 refers only to workers, Regulation 1612/68 confers benefits both on work seekers and on workers. I shall refer to the benefits conferred on work seekers as "title I rights" and the benefits conferred on workers as "title II rights."

The term "worker" is sometimes, but not always, used by the ECJ as a compendious term which embraces both work seekers and workers. I shall not follow this course. Instead, I shall use the terms "worker" and "work seeker" as separate and distinct terms. When quoting from ECJ judgments, however, I shall indicate whether I believe that court to be using the word "worker" (a) in the narrow sense, or (b) in the extended sense to embrace both worker and work seeker.

On 15th October 1968, the Council of the European Communities issued Council Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families. I shall refer to this as "directive 68/360". Directive 68/360 includes the following provisions:

On 28th June 1990, the Council of the European Communities issued Council Directive 90/364/EEC on the right of residence. I shall refer to this as "Directive 90/364." Directive 90/364 includes the following provisions, Article 1:

Let me now turn to UK domestic legislation. On 2nd October 2000, the Immigration (European Economic Area) Regulations 2000 came into force. I shall refer to these as "the Immigration Regulations". The Immigration Regulations implement directive 68/360 and directive 90/364 as well as other directives. Regulation 2(1) of the Immigration Regulations provides:

The Nationality, Immigration and Asylum Act 2002 came into force on various dates in 2002 and 2003. I shall refer to this statute as "the 2002 Act". Section 11 of the 2002 Act is entitled "Unlawful presence in United Kingdom". Section 11(2) provides:

Paragraph 5 of Schedule 3 provides:

Paragraphs 2 and 3 of schedule 3 set out exceptions to the operation of paragraph 1. The relevant provision for present purposes is paragraph 3 which provides:

Let me now draw the threads together. Ineligible persons who can invoke paragraph 3(b) of Schedule 3 escape the operation of paragraph 1(1). In other words, such persons, despite being classified as ineligible, can still require a local authority to consider whether to exercise the interim power to accommodate in their favour.

That is a sufficient account of the statutory framework. It is now time to set out the facts of the present case.

The claimant is a Dutch national, originally from Somalia. She is a divorcee with one adult son and two younger children, now aged five and four. The claimant came from the Netherlands to the UK on her own in July 2003, bringing £3,000 in savings. The claimant stayed in London with a friend. The claimant started working in a grocery shop in September 2003. This employment was for half of each day on five days per week, making a total of 20 hours per week. In January 2004, the claimant changed employment. She left the grocery shop and started to work in a coffee shop. The rates of pay were better at the coffee shop but the hours were somewhat less, being 18 hours per week. The claimant was made redundant from the coffee shop in June 2004, and she has not worked since then. The claimant has been registered as unemployed at the Job Centre Plus since August 2004.

In July 2004, the claimant's two youngest children arrived in the United Kingdom. In October 2004, the claimant and the two children moved into a flat at 110 Wamford Road, Kenton, Middlesex. At this time, the claimant was in receipt of income support and housing benefit. The housing benefit covered about 80 per cent of the rent, leaving a shortfall of some £200 per month. Unfortunately, the claimant's payment of rent fell into arrears and in September 2005, the claimant was facing imminent eviction.

The claimant applied to the defendant for housing under part 7 of the Housing Act 1996. By a letter dated 1st September 2005, the defendant rejected the claimant's application on the ground of her immigration status. This letter constituted a decision under section 184 of the 1996 Act.

By a letter dated 16th September 2005, the claimant's solicitor requested a review of that decision, pursuant to section 202 of the 1996 Act. On the last page of that letter, the claimant's solicitor requested the defendant to accommodate the claimant and her children in the exercise of the defendant's power under section 188(3) of the 1996 Act. By a reply sent on the same day, the defendant refused that request.

On 20th September 2005, the claimant's solicitor wrote to the defendant renewing the request for accommodation pursuant to section 188(3) of the 1996 Act, pending the outcome of the review under section 202. In that letter, the claimant intimated a claim for judicial review if the defendant did not accede to the request. Upon receipt of this letter, the defendant immediately agreed to accommodate the claimant for the period 20th to 29th September, whilst consideration was given to the detailed arguments set out in the claimant's solicitor's letter. On 20th September, the claimant and her children were placed in bed and breakfast accommodation.

Over the next few days, the defendant's lawyers considered the arguments which had been advanced on the claimant's behalf. They concluded that those arguments were unsound. Accordingly, the defendant's review officer, Ms Kris Hunnisett, wrote a letter on 28th September 2005 ("the decision letter") stating that she had taken legal advice and that the claimant's request was refused. Ms Hunnisett did agree, however, to extend the current accommodation until 3rd October 2005. The reasoning in the decision letter was as follows:

The claimant was aggrieved by the decision to refuse her accommodation under section 188(3) of the 1996 Act. Accordingly, she commenced the present proceedings.

By a claim form issued on 3rd October 2005, the claimant applied for judicial review of the decision to refuse her request for accommodation under section 188(3) of the 1996 Act. The claimant based her claim on five grounds which I would summarise as follows:

On the evening of 3rd October, the claimant applied to the duty judge for interim relief. Calvert-Smith J made an order that the defendant should accommodate the claimant and her children, pending the outcome of the claimant's application for permission. On 2nd November 2005, Newman J granted the claimant permission to apply for judicial review and gave directions for an expedited hearing. It seems that, through an oversight, there was neither an order nor an undertaking for continuance of the interim accommodation until trial of the judicial review proceedings. That was, however, the intention of both parties and the claimant has remained in interim accommodation during the course of this litigation.

Both parties filed their evidence and prepared for trial with expedition. The claimant's evidence consists of two witness statements made by herself. The defendant's evidence consists of a witness statement made by Ms Hunnisett, the review officer.

The hearing of the claimant's claim commenced on 6th December and the argument lasted for two days. Mr Adrian Berry represents the claimant. Mr Kelvin Routledge and Miss Sian Davies represent the defendant.

The issues, as they have emerged in argument, may be formulated as follows:

The above summary of the issues is my own formulation, based upon the arguments which were deployed at the hearing. It is convenient to address matters in that order and that, therefore, is the sequence which I shall follow in this judgment.

Before addressing this question, I must first survey the case law on Article 39 (formerly Article 48) of the EC Treaty and the case law on the subordinate legislation.

In D.M. Levin v Staatssecretaris van Justitie, (1982) Case 53/81, Mrs Levin asserted that she was entitled to reside in the Netherlands on the grounds that she was a worker with rights under Article 48 of the EEC Treaty. The Judicial Division of the Netherlands State Council referred the matter to the ECJ for a preliminary ruling. The ECJ gave helpful guidance as to the interpretation of Article 48, including the following passages:

In Sylvie Lair v Universitat Hannover (1988) Case 39/86, the plaintiff challenged the refusal by the University of Hanover to award her a maintenance and training grant for the pursuit of her university studies. She had previously worked for certain periods in Germany. In a section of its judgment headed "the concept of worker" the ECJ stated as follows:

It should be noted that regulation EEC 1251/70 (which is referred to in paragraph 34 of Lair) relates to persons who had ceased working by reason of retirement or incapacity.

In R v Immigration Appeal Tribunal, ex parte Antonissen (1991) Case C-292/89, the claimant, a Belgian national, challenged a deportation order made by the Secretary of State. The claimant asserted a right to remain in the UK under Article 48 of the EEC Treaty on the grounds that he was seeking employment. The Queen's Bench Division referred to the ECJ two questions concerning the interpretation of Community law governing the free movement of workers. The ECJ's answers to those questions, in paragraph 22 of its judgment, were as follows:

The judgment in Antonissen is focused upon the position of work seekers. Where the word "worker" appears in this judgment, it is used in the extended sense.

Collins v Secretary of State for Work and Pensions (2004) Case C-138/02 was also a reference to the ECJ from the UK. Mr Collins was challenging the refusal to grant him a Jobseekers Allowance. One of the issues was whether Mr Collins was a worker within the meaning of EC legislation. The ECJ gave the following guidance on this issue:

The last authority to which I must refer in relation to this issue is the decision of Collins J in this court in R (Conde) v The London Borough of Lambeth [2005] EWHC 62 (Admin). Ms Conde was a Spanish national who came to the United Kingdom with two small children. She found herself homeless and applied to the London Borough of Lambeth for assistance under section 17 of the Children Act 1989. Lambeth rejected the application and asserted that, by reason of paragraph 1(1)(g) of Schedule 3 to the 2002 Act, it had no power to provide assistance under section 17 of the Children Act 1989. In the judicial review proceedings, Ms Conde (like the claimant in the present case) relied upon paragraph 3(b) of Schedule 3 in order to prevent the operation of paragraph 1. Ms Conde asserted that she was a work seeker and that Lambeth's refusal to provide accommodation was an unlawful obstacle to the exercise of her right to seek employment. Collins J rejected that claim at paragraphs 26 to 27, he said:

In the light of the guidance given by the ECJ and the recent decision of Collins J, I must now consider whether the defendant erred in concluding that the claimant was not a worker or work seeker.

The evidence bearing on this question is contained in the claimant's two witness statements and in the witness statement of Ms Hunnisett. The key facts which emerge from this evidence are as follows: in September 2005, the claimant was living on income support and looking after two young children. The claimant's last employment had ended some 15 months previously, which was shortly before the claimant's children arrived in this country. The claimant was registered as unemployed at her local Job Centre. The claimant had an appointment fixed to attend the Job Centre Plus on 10th October for interview. This interview was of a kind known as "work focused interview". It is a compulsory interview for those on certain benefits, including income support. The purpose of the interview is to check the applicant's circumstances to see whether he or she can be helped back into work.

On 28th September 2005, the defendant was not aware of the claimant's detailed arrangements with the Job Centre Plus. On the other hand, the defendant was aware of the claimant's general circumstances, Miss Hunnisett set these out as follows in paragraphs 7 and 8 on the fourth page of the decision letter:

In my view, the defendant's decision that the claimant was neither a worker nor a work seeker contains no error of law. On the contrary, the defendant correctly applied established legal principles to the facts. I reach this conclusion for four reasons:

Let me now address two arguments advanced by Mr Berry, with reference to the Immigration Regulations. The first argument may be summarised as follows: Regulation 5(2) indicates that a person retains the status of worker, if he is involuntarily unemployed and that fact is duly recorded at the local employment office. The second argument may be summarised as follows: under Regulations 18 and 19, a worker, or someone who was a worker, is entitled to a residence permit which will remain in force for specified periods after the termination of his employment; this indicates that the individual retains his status of worker during such periods.

I reject these arguments for four reasons:

Let me now draw the threads together. The defendant did not err in concluding that the claimant was neither a worker nor a work seeker. My answer to the question set out in part 5 of this judgment is no.

As a Dutch national, the claimant is a citizen of the EU. Under Article 17 of the EC Treaty, the claimant's rights as a citizen of the Union are additional to her rights as a citizen of the Netherlands.

One of the claimant's rights as a citizen of the Union is the right to "reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect." See Article 18(1) of the EC Treaty.

The "limitations and conditions" referred to in Article 18(1) include the provisions of Directive 90/364. Article 1 of this Directive imposes a condition upon the right of a national of one Member State to reside in another Member State. The condition is that the person should be covered by sickness insurance and have "sufficient resources to avoid becoming a burden on the social assistance system of the host Member State".

The word "burden" in Article 1 should be read as meaning an unreasonable burden, see Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve (2001) Case C-184/99 and Trojani v CPAS (2004) case C-456/02.

The claimant in the present case does not satisfy the condition imposed by Article 1 of Directive 90/364, even taking into account the qualification of Article 1 to be found in Grzelczyk and Trojani. The defendant's decision in this regard cannot be faulted.

Let me now draw the threads together. The claimant is not a work seeker and so she does not have Title I rights under Regulation 1612/68. The claimant is not a worker and so she does not have Title II rights under Regulation 1612/68. The claimant does not have the resources to be self-sufficient, and so she does not have a right of residence in the UK under Directive 90/364. In short, under the EC Treaty and subordinate legislation, the claimant no longer has any right to reside in the United Kingdom.

Let me now turn to UK domestic legislation. By reason of the matters set out above, the claimant no longer falls within any of the categories of "qualified person" set out in Regulation 5 of the Immigration Regulations. Accordingly, the claimant no longer has a right of residence in the UK under Regulation 14(1) and regulation 21(3)(a)(i) of those Regulations. The claimant is therefore someone who is in the UK in breach of the immigration laws: see section 11(2) of the 2002 Act.

The fact that the Home Office has not taken steps to remove the claimant does not confer legality upon her presence in the United Kingdom. The House of Lords decision in Chief Adjudication Officer v Wolke (1997) 1 WLR 1640 (upon which Mr Berry relies) can readily be distinguished. The issue in Wolke was whether the appellant had been "required by the Secretary of State to leave the United Kingdom." See the speech of Lord Slynn at pages 1642 to 1643.

The conclusions which I have set out above are consistent with the reasoning of the ECJ in Bidar v London Borough of Ealing (2005) Case C-209/03. See paragraphs 31 to 42. The above conclusions are also consistent with the reasoning of Collins J in Conde. See paragraphs 61 to 62. The ECJ's decision in Trojani v CPAS (2004) Case C-456/02 should be distinguished, since Mr Trojani (unlike the claimant in the present case) had a residence permit. See Trojani at paragraph 37.

For all of the reasons set out above, in my view the defendant did not err in deciding that the claimant did not have a right to reside in the United Kingdom under Articles 17 to 18 of the EC Treaty. My answer to the question posed in part 6 of this judgment is no.

The claimant has a right not to be discriminated against within the scope of the application of the EC Treaty: see Article 12. On the other hand, the claimant is not, and on 28th September 2005 was not, exercising any rights falling within the scope of the EC Treaty. See parts 5 and 6 above. Accordingly, there is no basis for the assertion that the claimant is or was being discriminated against contrary to Article 12.

The defendant local authority decided that it was not necessary to provide accommodation for the claimant in order to avoid a breach of the claimant's rights under the EC Treaty. In my view, that decision was correct in law. Indeed on the evidence as it stood in September 2005, I do not see how the defendant could have come to any other decision.

For the sake of completeness, let me now consider this question on a different and hypothetical basis. Suppose that, in September 2005, the claimant was properly to be classified as a work seeker. In that event, it still cannot be said that the claimant fell within paragraph 3(b) of Schedule 3. I say this because the provision of accommodation under section 188(3) of the 1996 Act was not "necessary" in order to enable the claimant to exercise her Title I rights under Regulation 1612/68: see Conde at paragraphs 50 and 67. It should be noted that the authorities upon which the claimant relies, in relation to this aspect of her case all concern Title II rights under Regulation 1612/68, rather than Title I rights, see Even v ONPTS (1979) Case 207/78, Reina v Landeskreditbank Baden-Wurttemberg (1982) Case 65/81, Commission of the European Communities v Italian Republic (1988) Case 63/86.

Let me now draw the threads together. On the facts as they were, and as they appeared to be on 28th September 2005, it was not "necessary" for the defendant to exercise the interim power to accommodate in order to avoid a breach of the claimant's rights under the EC Treaty. Accordingly, the claimant cannot bring herself within paragraph 3(b) of Schedule 3 to the 2002 Act. My answer to the question posed in part 7 of this judgment is no.

I shall now address the claimant's five grounds of claim in the order set out in part 4 above:

This ground fails. The claimant is and was ineligible to benefit from the exercise of the power conferred by section 188(3) of the 1996 Act. Accordingly, the defendant was under no duty to consider the factors relevant to the exercise of that power.

This ground fails for the reasons set out in part 5 above.

This ground fails for the reasons set out in part 6 above.

In relation to this ground, the claimant relies upon the ECJ's decision in Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano (1995) Case C-55/94. In that case, a German barrister, Mr Gebhard, was exercising his right to practise in Italy. The Milan Bar Council objected to Mr Gebhard using the title "avvocato". The issue therefore arose as to what restrictions could legitimately be imposed upon the national of another Member State, who was exercising his right to provide professional services within Italy. The ECJ stated the following principles at paragraph 37:

I agree with Mr Berry that of these four conditions, the third and fourth impose a test of proportionality. On the other hand, the four conditions set out in paragraph 37 only apply when the claimant is exercising fundamental freedoms guaranteed by the EC Treaty. In my view, in September 2005, the claimant was not exercising any fundamental freedoms guaranteed by the EC Treaty. The claimant in this case is not in an analogous position to Mr Gebhard, who was exercising his EC rights to pursue a legal career in Italy.

There is a further obstacle in the claimant's path. It does not seem to me that the national measure in question (namely Schedule 3 to the 2002 Act) does fail the test of proportionality, if that test is applicable. The EC Treaty and subordinate legislation create a web of rights which extend across the Union. However, these rights have been carefully balanced and circumscribed. It is not the case that every citizen of the Union is entitled to settle in any Member State and to draw upon its welfare benefits. In my view, Schedule 3 to the 2002 Act gives effect in a fair and proportionate manner to the established rights of EU citizens.

In the result, therefore, the fourth ground of claim fails.

The fifth ground of claim is focused upon the facts of the present case.

It appears to me from the witness statements that the defendant, through Ms Hunnisett, made proper and adequate enquiries and came to conclusions which were appropriate on the evidence. Indeed, I cannot discern any line of enquiry which might have been pursued and which might have caused the defendant to come to a different conclusion. Therefore, the fifth ground of claim fails.

Let me now draw the threads together. The claimant fails on each of her five grounds of claim. My answer to the question posed in part 8 of this judgment is no.

For the reasons set out above, the claimant fails in her challenge to the defendant's decision dated 28th September 2005. I reach this conclusion with regret because of the consequences which it will entail for the claimant and her children.

I thank all counsel for their assistance in this case.

The claimant's claim is dismissed.