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FOURTH
SECTION
CASE OF
BAH v. THE UNITED KINGDOM
(Application
no. 56328/07)
JUDGMENT
STRASBOURG
27
September 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Bah v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki,
President,
Nicolas
Bratza,
Ljiljana
Mijović,
Päivi
Hirvelä,
George Nicolaou,
Ledi Bianku,
Vincent
A. De Gaetano,
judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 6 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 56328/07) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a Sierra
Leonean national, Ms Husenatu Bah (“the applicant”), on
23 November 2007.
- The
applicant was represented by Pierce Glynn Solicitors, a firm of
lawyers practising in London. The United Kingdom Government
(“the Government”) were represented by their Agent,
Mr D. Walton, of the Foreign and Commonwealth Office.
- The
applicant alleged that she had been a victim of a violation of
Article 14 of the Convention, taken in conjunction with Article 8.
On 1 December 2009, the Acting President of the Chamber
decided to give notice of the application to the Government.
- The
Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in fine), the
parties replied in writing to each other’s observations. In
addition, third-party comments were received from the Equality and
Human Rights Commission, which had been given leave by the Acting
President of the Chamber to intervene in the written procedure
(Article 36 § 2 of the Convention and Rule 44 § 3). The
respondent Government replied to those comments (Rule 44 § 6).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- The
applicant arrived in the United Kingdom in 2000 as an asylum seeker
from Sierra Leone. Although her asylum claim was refused, she was
granted exceptional leave to remain and then, in 2005, indefinite
leave to remain. After she obtained indefinite leave to remain, she
applied to have her son Mohamed Saliou Jalloh, a Sierra Leonean
national born in 1994, join her in the United Kingdom. Her son
arrived in January 2007, with conditional leave to remain in the
United Kingdom, the condition being that he must not have recourse to
public funds. He is considered as being “subject to immigration
control” within the meaning of the Asylum and Immigration Act
1996, as is the applicant (see paragraph 12
below).
- At
the time of her son’s arrival in the United Kingdom, the
applicant was renting a room in a private home. However, her landlord
was unwilling to accommodate her son as well, and informed the
applicant shortly after her son’s arrival that they would have
to move out by 31 March 2007. The applicant applied to the London
Borough of Southwark Council for assistance on 9 February 2007, on
the basis that she had become unintentionally homeless. An
unintentionally homeless person with a minor child would ordinarily
qualify as being in priority need pursuant to section 189 of the
Housing Act 1996 (see paragraph 13 below), and
would thus be provided with suitable housing, usually within the
locality. Those in priority need are considered to be a class of
persons to whom reasonable preference must be given in the allocation
of social housing. As there is a significant shortage of social
housing in London, those in priority need would generally be placed
in temporary accommodation until appropriate social housing became
available. In the case of the applicant, however, as her son was
subject to immigration control, he was disregarded by the Council in
the determination of whether the applicant was in priority need, in
accordance with section 185(4) of the Housing Act 1996. On 14 March
2007 the Council decided that the applicant was not therefore in
priority need and not entitled to housing.
- The
applicant requested a review of this decision, which was carried out
by a senior officer, who reiterated that persons subject to
immigration control are not eligible for housing assistance and that
persons who are not eligible for housing assistance shall be
disregarded when determining whether another person has a priority
need for accommodation. As the applicant’s son was not
eligible, the applicant did not have a priority need. Consideration
was also given to the question of whether the applicant was
vulnerable for any other reason; however, it was found that the
applicant was not hindered in the performance of everyday tasks by
any medical problems and that she was no less able to fend for
herself than the average person. There was therefore no special
reason to find that she was entitled to homelessness assistance due
to vulnerability. On 24 May 2007 the original decision was upheld.
- The
Council assisted the applicant to find a private sector tenancy in
September 2007, which she accepted. The applicant and her son were
not therefore at any point actually homeless. However, the private
tenancy was more expensive than a social tenancy would have been, and
was outside the Borough of Southwark and therefore far from the
applicant’s previous employment and her son’s school. The
applicant claimed that she had to give up her job after three months
of commuting as she was unable to cope with the travel required, and
that her son spent four hours per day travelling to and from school.
- The
applicant, who had remained on the waiting list for social housing in
the Borough of Southwark, obtained an offer of a social tenancy of a
one-bedroom flat in March 2009. She and her son therefore moved back
to Southwark.
II. RELEVANT DOMESTIC LAW
1. Asylum and Immigration Act 1996
- Section
9 sub-sections 1 and 2 of the Asylum and Immigration Act 1996
provide:
“9. Entitlement to housing accommodation and
assistance
(1) Each housing authority shall secure that, so far as
practicable, no tenancy of, or licence to occupy, housing
accommodation provided under the accommodation Part is granted to a
person subject to immigration control unless he is of a class
specified in an order made by the Secretary of State.
(2) A person subject to immigration control—
(a) shall not be eligible for accommodation or
assistance under the homelessness Part; and
(b) shall be disregarded in determining, for the
purposes of that Part, whether another person—
(i) is homeless or is threatened with homelessness; or
(ii) has a priority need for accommodation,
unless he is of a class specified in an order made by
the Secretary of State...”
- Section
13(2) of the same act defines “a person subject to immigration
control” as being a person who under the Immigration Act 1971
requires leave to enter or remain in the United Kingdom (whether or
not such permission has been given).
2. Housing Act 1996
- The
Housing Act 1996, as amended by Schedule 15 of the Housing and
Regeneration Act 2008, provides insofar as relevant:
“184. Inquiry
into cases of homelessness or threatened homelessness
If the
local housing authority have reason to believe that an applicant may
be homeless or threatened with homelessness, they shall make such
inquiries as are necessary to satisfy themselves –
(a)
whether he is eligible for assistance, and
(b)
if so, whether any duty, and if so what duty, is owed to him under
the following provisions of this Part.
...
(3A)
If the authority decide that a duty is owed to the applicant under
section 193(2) or 195(2) but would not have done so without having
had regard to a restricted person, the notice under subsection (3)
must also –
inform
the applicant that their decision was reached on that basis,
include
the name of the restricted person,
explain
why the person is a restricted person, and
explain
the effect of section 193(7AD) or (as the case may be) section
195(4A)
...
(7) In this Part “a restricted person” means
a person –
(a) who is not eligible for assistance under this Part,
(b) who is subject to immigration control within the
meaning of the Asylum and Immigration Act 1996, and
(c) either –
(i) who does not have leave to enter or remain in the
United Kingdom, or
(ii) whose leave to enter or remain in the United
Kingdom is subject to a condition to maintain and accommodate
himself, and any dependents, without recourse to public funds.
185. Persons
from abroad not eligible for housing assistance.
A
person is not eligible for assistance under this Part if he is a
person from abroad who is ineligible for housing assistance.
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.
...
A
person from abroad who is not eligible for housing assistance shall
be disregarded in determining for the purposes of this Part whether
a person falling within subsection (5) –
is
homeless or threatened with homelessness, or
has a
priority need for accommodation.
A
person falls within this subsection if the person –
falls
within a class prescribed by regulations made under subsection (2);
but
is not
a national of an EEA State or Switzerland.
...
189. Priority
need for accommodation.
The
following have priority need for accommodation –
a
pregnant woman or a person with whom she resides or might reasonably
be expected to reside;
a
person with whom dependent children reside or might reasonably be
expected to reside;
a
person who is vulnerable as a result of old age, mental illness or
handicap or physical disability or other special reason, or with
whom such a person resides or might reasonably be expected to
reside;
a
person who is homeless or threatened with homelessness as a result
of an emergency such as flood, fire or other disaster.
...
Duty to
persons with priority need who are not homeless intentionally.
This
section applies where the local housing authority are satisfied that
an applicant is homeless, eligible for assistance and has a priority
need, and are not satisfied that he became homeless intentionally.
Unless
the authority refer the application to another local housing
authority (see section 198), they shall secure that
accommodation is available for occupation by the applicant.
The
authority are subject to the duty under this section until it ceases
by virtue of any of the following provisions of this section.
...
(3B) In this case “a restricted case” means
a case where the local housing authority would not be satisfied as
mentioned in subsection (1) without having had regard to a restricted
person.
...
(7AA) In a restricted case the authority shall also
cease to be subject to the duty under this section if the applicant,
having been informed of the matters mentioned in subsection (7AB) –
accepts
a private accommodation offer, or
refuses
such an offer
(7AB)
The matters are –
the
possible consequence of refusal of the offer, and
that
the applicant has the right to request a review of the suitability
of the accommodation.”
3. Allocation of Housing and Homelessness (Eligibility)
(England) Regulations 2006, SI 2006/1294
- The
Regulations, made by the Secretary of State in the exercise of powers
conveyed by certain sections of the Housing Act 1996, referred to
above, provide insofar as relevant:
“3. Persons subject to immigration control who are
eligible for an allocation of housing accommodation
The following classes of persons subject to immigration
control are persons who are eligible for an allocation of housing
accommodation under Part 6 of the 1996 Act –
(a) Class A – a person who is recorded by the
Secretary of State as a refugee within the definition in Article 1 of
the Refugee Convention and who has leave to enter or remain in the
United Kingdom;
(b) Class B – a person –
(i) who has exceptional leave to enter or remain in the
United Kingdom granted outside the provision of the Immigration
Rules; and
(ii) who is not subject to a condition requiring him to
maintain and accommodate himself, and any person who is dependent on
him, without recourse to public funds;
(c) Class C – a person who is habitually resident
in the United Kingdom, the Channel Islands, the Isle of Man or the
Republic of Ireland and whose leave to enter or remain in the United
Kingdom is not subject to any limitation or condition, other than a
person –
(i) who has been given leave to enter or remain in the
United Kingdom upon an undertaking given by his sponsor;
(ii) who has been resident in the United Kingdom, the
Channel Islands, the Isle of Man or the Republic of Ireland for less
than five years beginning on the date of entry or the date on which
his sponsor gave the undertaking in respect of him, whichever date is
the later; and
(iii) whose sponsor or, where there is more than one
sponsor, at least one of whose sponsors, is still alive;
...
5. Persons subject to immigration control who are
eligible for housing assistance.
(1) The following classes of persons subject to
immigration control are persons who are eligible for housing
assistance under Part 7 of the 1996 Act –
(a) Class A – a person who is recorded by the
Secretary of State as a refugee within the definition in Article 1 of
the Refugee Convention and who has leave to enter or remain in the
United Kingdom;
(b) Class B – a person –
(i) who has exceptional leave to enter or remain in the
United Kingdom granted outside the provision of the Immigration
Rules; and
(ii) who is not subject to a condition requiring him to
maintain and accommodate himself, and any person who is dependent on
him, without recourse to public funds;
(c) Class C – a person who is habitually resident
in the United Kingdom, the Channel Islands, the Isle of Man or the
Republic of Ireland and whose leave to enter or remain in the United
Kingdom is not subject to any limitation or condition, other than a
person –
(i) who has been given leave to enter or remain in the
United Kingdom upon an undertaking given by his sponsor;
(ii) who has been resident in the United Kingdom, the
Channel Islands, the Isle of Man or the Republic of Ireland for less
than five years beginning on the date of entry or the date on which
his sponsor gave the undertaking in respect of him, whichever date is
the later; and
(iii) whose sponsor or, where there is more than one
sponsor, at least one of whose sponsors, is still alive.”
4. Westminster
City Council v. Morris [2005] EWCA Civ 1184
- On
14 October 2005, the Court of Appeal handed down its judgment in this
case, which involved a woman who was a British citizen and her
daughter who was subject to immigration control. The local authority
had refused to treat mother and daughter as being in priority need of
homelessness assistance when they became unintentionally homeless,
due to the daughter’s immigration status. The Court of Appeal
held that Part VII of the Housing Act 1996 and specifically sections
188, 189 and 193 were designed to protect the family lives of the
homeless by ensuring that families who became unintentionally
homeless were accommodated together. It therefore fell within the
ambit of Article 8 of the Convention. A majority of the Court of
Appeal found that the basis of distinction between Mrs Morris, on the
one hand, and the parent of a child who was not subject to
immigration control, on the other, was either the national origin of
the child, or a combination of statuses including nationality,
immigration status, settled residence and social welfare. It was not
considered necessary to decide finally whether there was one sole
factor on which the distinction was based; the important point was
that nationality was amongst the factors. As such, very weighty or
solid justification was required if the distinction was to be found
to be compatible with the Convention. The Court of Appeal found that,
regardless of the precise basis of the differential treatment, the
justification offered by the Government – the need to preserve
immigration control and to prevent “benefits tourism” –
was not sufficiently weighty, nor was it a proportionate and
reasonable response to the perceived problem. The discouraging of
“benefits tourism” or the “over-staying” of
dependent relatives was an intelligible policy goal, but was not
served by legislative measures which discouraged British citizens or
those with a right of abode from coming to or remaining in the United
Kingdom, because they could not accommodate their dependent relatives
who were also lawfully permitted to be in the United Kingdom. Section
185(4) was found not to be a proportionate or even logical response
to the perceived problem. The Court of Appeal observed that it was
not apparent that the Government or Parliament had considered the
potentially discriminatory impact of the legislation; however, even
if such impact had been considered, it could not be considered to
fall within even the very wide margin of appreciation that the
Government enjoyed with regard to such matters.
- The
Court of Appeal therefore made a declaration of incompatibility in
the following terms:
“That s. 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, if both are
habitually resident in the United Kingdom, to be disregarded when
determining when a British citizen has a priority need for
accommodation when that child is subject to immigration control.”
- The
case of Mrs Morris was considered by the Court of Appeal alongside
that of Mr Badu, who had indefinite leave to remain in the United
Kingdom but was considered by the court to have “equivalent
status” to British citizenship (see paragraph 60 of the
judgment). He too was excluded by section 185(4) from establishing a
priority need for housing assistance because his child was subject to
immigration control. Unlike Mrs Morris, however, at the time of the
Court of Appeal’s judgment, he had an ongoing need for
assistance, being still prospectively homeless. This situation would
not be alleviated by the declaration of incompatibility, since the
impugned provision would remain in force until changed by Parliament.
Mr Badu’s case was therefore remitted by the Court of Appeal to
the relevant local authority for reconsideration, with specific
regard to whether he could be provided with accommodation under
powers conferred upon the authority by other legislation.
- As
a result of the declaration of incompatibility in Westminster
v. Morris, the Government amended the Housing Act 1996 by
means of Schedule 15 to the Housing and Regeneration Act 2008, as
noted above. The changes addressed the incompatibility insofar as
British citizens are concerned but meant that a person such as Mr
Badu or indeed the applicant in this case, with indefinite leave to
remain, would still not be considered to be in priority need of
housing assistance if his or her eligibility was dependent on another
person who was from abroad and subject to immigration control, such
as the applicant’s son. Moreover, in the case of a British
citizen like Mrs Morris or an European Economic Area (EEA) or Swiss
national, where the priority need resulted from a dependent child who
was subject to immigration control, the local authority’s duty
to provide accommodation would be satisfied by the local authority
procuring an offer of a tenancy from a private landlord, whether or
not the applicant chose to accept such an offer. In cases where there
was a dependent child who was not subject to immigration control, by
contrast, the local authority’s duty would not be discharged by
procuring such an offer if the applicant chose not to accept it.
THE LAW
- ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 8
- The
applicant complained of a violation of Article 14 of the Convention
read together with Article 8.
Article
8 of the Convention provides that:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection
of health and morals, or for the protection of the rights and
freedoms of others.”
- Article
14 provides that:
“The enjoyment of the rights and freedoms set
forth in [the] 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.”
A. Admissibility
- The
Government submitted that the complaint was manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and
therefore inadmissible. The Court, however, finds that the
application is not manifestly ill-founded, nor is it inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
a) The Government’s submissions
- The
Government submitted that, following the declaration of
incompatibility made by the Court of Appeal in Westminster v.
Morris (see paragraphs 15-18
above), the relevant provisions of the Housing Act 1996 had been
amended by Schedule 15 of the Housing and Regeneration Act 2008 (see
paragraph 13 above).
- However,
the declaration of incompatibility made in Westminster v. Morris,
and the legislative changes enacted as a result of that declaration,
did not apply to the applicant who was not a British citizen, but
only had indefinite leave to remain in the United Kingdom and was
subject to immigration control. Although the applicant was eligible
for housing assistance pursuant to Regulation 5(1)(c) of the
Regulations cited at paragraph 14 above, she had
been and still was unable, both prior to and after the legislative
amendments, to rely on her son who was also subject to immigration
control to convey priority need for accommodation.
- On
the facts of the applicant’s case, the Government observed that
she would not have been automatically entitled to social housing even
had she been accepted as having a priority need. No individual had an
entitlement to social housing under the Housing Act 1996. The
applicant, if considered to be in priority need, would have fallen
into a class of persons entitled to be given reasonable preference
for an allocation of social housing. However, given the scarcity of
such housing in London, she would most likely have been granted
temporary accommodation until an offer of social housing could be
made. The Government further observed that at the time the applicant
sought assistance, those identified as homeless spent on average 21
months in temporary accommodation, which was frequently property
leased by the local authority from private landlords and then sub let
to tenants and could therefore be more expensive to tenants than even
the private sector tenancy obtained by the applicant, given the costs
of leasing the property. Given that the applicant obtained an offer
of social housing in March 2009, the Government submitted that she
spent a similar amount of time in privately leased accommodation as
she would have done had she been granted temporary accommodation and
that it is possible that she would have paid a higher rent in such
temporary accommodation than she had had to pay in the private
accommodation she found with the assistance of her local authority.
The Government emphasised the fact that the applicant and her son
were never actually homeless and that there was other legislation
which required local authorities to provide accommodation or other
assistance to children who were in need. In the event of the
applicant’s son actually becoming homeless, then, the
Government argued that there were means other than section 193 of the
Housing Act 1996 by which he could have been provided with housing.
- As
regards the applicant’s complaint, the Government accepted that
its subject matter fell within the ambit of Article 8. However, the
Government contended that the differential treatment accorded to the
applicant as a result of her son’s immigration status did not
fall under Article 14, because the ground for differentiating was not
his nationality or national origin but his immigration status, which
was not an “other status” within the terms of Article 14.
Immigration status being an entirely legal status and not a “personal
characteristic”, the Government maintained that there was no
discrimination falling foul of Article 14.
- In
the alternative, and if the different treatment was found to be
discrimination within the meaning of Article 14, the Government
submitted that since the ground of discrimination was immigration
status rather than nationality, significantly less justification was
required. This was because discrimination based exclusively on
nationality was plainly suspect and required close scrutiny, whereas
discrimination based on immigration status flowed from the State’s
need to control and monitor immigration. Given that the case
concerned the allocation of scarce resources, namely social housing,
the Government contended that they enjoyed a wide margin of
appreciation and that Parliament was best placed to reach policy
decisions dealing with the allocation.
- The
justification offered by the Government for the differential
treatment imposed by the legislation was the need to allocate scarce
resources and the preference in so allocating for those with the
greatest level of connection to the United Kingdom, which the
Government submitted was possessed by British and EEA citizens rather
than those with indefinite leave to remain in the United Kingdom. The
Government took the view that it was wholly reasonable and
proportionate for the State to limit the provision of a scarce and
expensive resource such as housing to those whose priority need
flowed from their and their dependants’ fixed and permanent
rights to be present in the United Kingdom. It would have been
unacceptable, according to the Government, if the applicant had
gained priority status by reason of her son, whose permission to be
in the United Kingdom was expressly conditional upon his having no
recourse to public funds. The Government contended that their policy
of differential treatment in the allocation of housing, dependent
upon a person’s immigration status, was plainly proportionate.
- The
Government observed that the applicant’s comparison between EEA
nationals and those with indefinite leave to remain was irrelevant,
since it was justifiable to treat EEA nationals more favourably than
others due to the nature of the “special legal order”
formed by the European Union and the special status thereby conferred
upon its nationals. As to British citizens, it was fair to assume
that, as a general rule, they had a greater connection to the United
Kingdom than those with indefinite leave to remain.
b) The applicant’s submissions
- The
applicant maintained that, contrary to the Government’s
submission, the underlying ground of discrimination was nationality
even if the official ground was immigration status, and pointed out,
with reference to the Court’s judgment in Gaygusuz v.
Austria, 16 September 1996, § 42, Reports of Judgments
and Decisions 1996 IV, that very weighty reasons were
required to justify such discrimination. In support of the contention
that the ground of discrimination was nationality, the applicant
cited the case of Westminster v. Morris (see paragraphs 15-18
above), in which the majority of the Court of Appeal had found, at
paragraphs 52 and 82 of the judgment, that nationality was the
underlying ground on which the distinction was drawn. The applicant
submitted that the Court should accept the reasoning of the Court of
Appeal as determinative.
- The
applicant criticised the justification offered by the Government for
the differential treatment of those with a dependent child subject to
immigration control and those with a dependent child not subject to
such control, or, since the legislative amendments following
Westminster v. Morris¸ British, EEA or Swiss
nationals with a dependent child subject to immigration control and
those who were themselves subject to immigration control and whose
dependent child was too. Specifically, the applicant pointed out that
it was illogical to make a distinction based on purportedly different
levels of connection to the United Kingdom in respect of priority
need for accommodation in times of homelessness, when no such
distinction was drawn for the purposes of allocation of housing. The
applicant, with indefinite leave to remain and irrespective of her
child’s conditional immigration status, was eligible for social
housing. The applicant contended therefore that if she had a
sufficient level of connection to the United Kingdom to be eligible
for housing, she should also have a sufficient level of connection to
be considered in priority need of assistance. If the distinction made
by the legislation on priority need were genuinely justified by the
scarcity of social housing, as the Government claimed, then the
distinction would be extended to the allocation of long-term social
housing and those in the applicant’s position, who could not be
considered to be in priority need of assistance because of their
child’s immigration status, would not be eligible for long-term
housing either.
- The
applicant further submitted that the Government’s position did
not make sense since it could not be argued that EEA nationals, as a
class of persons, had a greater degree of connection to the United
Kingdom than those with indefinite leave to remain. Persons with
indefinite leave to remain were treated for all practical purposes,
including the allocation of social benefits, in the same manner as
British citizens; whereas EEA nationals’ right to be in the
United Kingdom and their entitlement to social benefits were
dependent on their being and remaining “qualified persons,”
such as workers. The applicant therefore contended that those with
indefinite leave to remain had a greater level of connection to the
United Kingdom than EEA nationals and that the Government’s
justification for treating the two classes of person differently was
invalid.
- Finally,
the applicant pointed to the Court of Appeal’s consideration of
Mr Badu’s appeal in Westminster v. Morris. Like the
applicant, he was not a British citizen but had indefinite leave to
remain in the United Kingdom. The Court of Appeal noted at paragraph
62 of the judgment that Mr Badu had “equivalent status”
to citizenship. The applicant endorsed this characterisation of
indefinite leave to remain. She contended that Westminster v.
Morris had been correctly decided by the Court of Appeal and that
the reasoning employed in that case applied with equal force both to
British citizens and to those with indefinite leave to remain. In the
view of the applicant, by amending the legislation so that it only
improved the position for those with citizenship (or nationals of
other EEA states and Switzerland), the Government had failed to give
full force to the declaration of incompatibility made by the Court of
Appeal.
c) The third party intervention
- The
Equality and Human Rights Commission (EHRC) characterised this case
as involving ongoing structural discrimination in the domestic
housing legislation. At the time the application was lodged, no
legislative changes had been made in response to the decision of the
Court of Appeal in Westminster v. Morris. Changes were enacted
in 2008. However, the EHRC criticised the Government’s
“inadequate and grudging approach to seeking to correct the
breach of Article 14” identified by the Court of Appeal in
Westminster v. Morris, noting in particular the length of the
period during which no steps had been taken to amend the impugned
legislation; the failure to conduct any monitoring of the impact of
the legislative provisions; and the eventual changes to the
legislation which, in the view of the EHRC, replaced the old form of
discrimination with a new form. Specifically, the legislation
continued to differentiate between households including a child who
was subject to immigration control – now termed a “restricted
person” by section 184(7) of the Housing Act 1996 – and
households which did not include a “restricted person.”
- The
EHRC argued that the justification offered by the Government for the
new provisions was no different from or any more coherent than that
in respect of the previous provisions. The nationality of the
dependent child who triggered a priority need for assistance on the
part of its parent was simply not relevant, in the view of the EHRC,
to the underlying policy objective behind Part 7 of the Housing Act
1996, which was keeping families in need together. Even if
there were a logical link between discriminating against those whose
dependent child was subject to immigration control and protecting the
limited stock of social housing, it would not amount to the weighty
justification necessary to render the discrimination acceptable.
2. The Court’s assessment
a) General principles
- The
Court recalls that Article 14 complements the other substantive
provisions of the Convention and the Protocols, but has no
independent existence since it applies solely in relation to the
“enjoyment of the rights and freedoms” safeguarded by
those provisions. The application of Article 14 does not
necessarily presuppose the violation of one of the substantive
Convention rights. It is sufficient – and also necessary –
for the facts of the case to fall “within the ambit” of
one or more of the Convention Articles (see Burden v. the United
Kingdom [GC], no. 13378/05, § 58, ECHR 2008 ). The
prohibition of discrimination in Article 14 thus extends beyond the
enjoyment of the rights and freedoms which the Convention and
Protocols require each State to guarantee. It applies also to those
additional rights, falling within the general scope of any Convention
article, for which the Contracting State has voluntarily decided to
provide. This principle is well entrenched in the Court’s
case-law. It was expressed for the first time in the Case
“relating to certain aspects of the laws on the use of
languages in education in Belgium” v. Belgium (Merits)
(judgment of 23 July 1968, Series A no. 6, § 9).
- The
Court has also established in its case-law that only differences in
treatment based on an identifiable characteristic, or “status”,
are capable of amounting to discrimination within the meaning of
Article 14 (Kjeldsen, Busk Madsen and Pedersen v.
Denmark, 7 December 1976, § 56, Series A no. 23). Moreover,
in order for an issue to arise under Article 14 there must be a
difference in the treatment of persons in analogous, or relevantly
similar, situations (D.H. and Others v. the Czech
Republic [GC], no. 57325/00, § 175, ECHR 2007;
Burden v. the United Kingdom [GC], cited above, §
60). Such a difference of treatment is discriminatory if it has no
objective and reasonable justification; in other words, if it does
not pursue a legitimate aim or if there is not a reasonable
relationship of proportionality between the means employed and the
aim sought to be realised. The Contracting State enjoys a margin of
appreciation in assessing whether and to what extent differences in
otherwise similar situations justify a different treatment (Burden
v. the United Kingdom [GC], cited above, § 60).
- The
scope of this margin will vary according to the circumstances, the
subject matter and the background (see Carson and Others v. the
United Kingdom [GC], no. 42184/05, § 61, 16 March 2010). As
a general rule, very weighty reasons would have to be put forward
before the Court could regard a difference in treatment based
exclusively on the ground of nationality or sex as compatible with
the Convention (see respectively Gaygusuz, cited above, § 42;
and Van Raalte v. the Netherlands, 21 February 1997, §
39, Reports of Judgments and Decisions 1997 I). On the
other hand, a wide margin is usually allowed to the Contracting State
under the Convention when it comes to general measures of economic or
social strategy (see, for example, James and Others v. the United
Kingdom, 21 February 1986, § 46, Series A no. 98, and
National & Provincial Building Society, Leeds Permanent
Building Society and Yorkshire Building Society v. the United
Kingdom, 23 October 1997, § 80, Reports
1997-VII). Because of their direct knowledge of their society and its
needs, the national authorities are in principle better placed than
the international judge to appreciate what is in the public interest
on social or economic grounds, and the Court will generally respect
the legislature’s policy choice unless it is “manifestly
without reasonable foundation” (Stec and Others v. the
United Kingdom, [GC], nos. 65731/01 and 65900/01, § 52,
ECHR 2006).
b) Application to the facts of the case
- The
Court recalls that the applicant claims that she was impermissibly
discriminated against because, as she was not classed as being in
priority need of accommodation when threatened with homelessness, she
was not granted reasonable preference for social housing and provided
with temporary accommodation until such social housing became
available. Instead, she was assisted to find a private sector tenancy
outside the Borough of Southwark by her local authority and
subsequently obtained a social tenancy back in the Borough of
Southwark seventeen months later when one became available.
- As
a preliminary note, the Court cannot make a finding as to the
conformity with the Convention of the new legislative scheme put in
place by the amendments made subsequent to Westminster v. Morris,
since it was the old scheme that applied to the applicant and gave
rise to the facts of this case. The Court observes that, regardless
of the amendments, the applicant’s case would not have been
handled any differently under the new legislation, since as she is
not a British citizen or an EEA or Swiss national, the new limited
duty brought in by section 193(7AA) of the Housing Act 1996 would not
have applied to her. She would still not have been eligible for
homelessness assistance under the amended legislation. However, the
Court must confine itself to an examination of the compliance or
otherwise with the Convention of the legislation as it applied in the
applicant’s case.
- Having
thus defined the scope of its examination, the Court begins by
observing that there is no right under Article 8 of the Convention to
be provided with housing (see Chapman v. the United Kingdom [GC],
no. 27238/95, § 99, ECHR 2001 I). However, as the
Court has previously held with regard to other social benefits (see,
for example, Stec and Others v. the United Kingdom (dec.)
[GC], cited above, § 55), where a Contracting State decides to
provide such benefits, it must do so in a way that is compliant with
Article 14. The impugned legislation in this case obviously affected
the home and family life of the applicant and her son, as it impacted
upon their eligibility for assistance in finding accommodation when
they were threatened with homelessness. The Court therefore finds
that the facts of this case fall within the ambit of Article 8. In so
finding, the Court notes the conclusion of the Court of Appeal at
paragraph 25 of Westminster v. Morris (see paragraphs 15-18
above) and further notes the fact that the Government agree that
Article 8 applies to the instant case. The Court must therefore go on
to consider whether the applicant was impermissibly discriminated
against within the meaning of Article 14.
- As
observed at paragraph 36 above, only where there
is differential treatment, based on an identifiable characteristic or
“status”, of persons in analogous or relevantly similar
positions, can there be discrimination. Dealing first with the
question of who is the appropriate comparator to this applicant, or
the person to whom she was in an analogous situation, the Court notes
that the applicant does not make an express submission in this
regard. However, given her reliance on the case of Westminster v.
Morris, cited above, and contention that persons with indefinite
leave to remain in the United Kingdom have an equivalent status to
those with British citizenship, the Court assumes that she may well
consider herself to have been in a relevantly similar position to a
person, such as Mrs Morris, who was a British citizen with a child
who was subject to immigration control. The Court recalls, however,
its finding at paragraph 39 above that it is
only the position under the Housing Act 1996 prior to its amendment
that is relevant to the consideration of the applicant’s case.
The Court further notes that a person such as Mrs Morris would have
been treated in exactly the same way as the applicant under the
relevant provisions, in that they would not have been considered to
be in priority need because their dependent child, being subject to
immigration control, would have been disregarded under section 185(4)
of the Housing Act 1996. There is therefore no differential treatment
for the purposes of Article 14 if a British citizen with a child
subject to immigration control is the appropriate comparator.
- The
Court notes, however, that there is another potential comparator,
namely a person who has indefinite leave to remain in the United
Kingdom like the applicant, but whose child is either not subject to
immigration control or has an unconditional form of leave, such as
indefinite leave to remain, which would mean that they could convey
priority need status on their parent or carer. Again, the Court
observes that the applicant does not specifically state that she
considers herself to be in an analogous position to such a person.
However, the Court considers that such a person is a more relevant
comparator than a British citizen, given that the submissions of both
the Government and the applicant as regards the ground of
distinction, considered below, focus on the applicant’s son’s
status rather than that of the applicant, and also given that, but
for the applicant’s son’s status, the applicant would
have been considered to be in priority need of housing assistance. In
any event, the Court does not consider it necessary to determine
conclusively whether the applicant and her son were in an analogous
situation to either of the comparators suggested above, for reasons
which are expanded upon at paragraphs 48-51
below.
- The
Court now turns to the issue of the ground of distinction, or the
basis for the differential treatment. In this case, the applicant
contends that she was treated differently based on the nationality of
her son, which equates to “national origin” for the
purposes of Article 14. The Government, on the other hand, contend
that the basis for the differential treatment of the applicant was
her son’s immigration status which, being a purely legal rather
than a personal status, did not amount to an “other status”
in terms of Article 14.
- The
Court must therefore decide whether the ground of distinction was
indeed the applicant’s son’s immigration status, or
rather his nationality, as the applicant claims. The Court has had
regard to the conclusions of the Court of Appeal in Westminster v.
Morris (see paragraphs 15-18
above) in relation to the ground of distinction, but notes that,
firstly, neither of the judges who formed the majority of the Court
of Appeal in that case reached an express conclusion as to whether
nationality formed the sole ground for the distinction; and secondly,
that that case involved a British citizen rather than a person, such
as the applicant, with indefinite leave to remain in the United
Kingdom. The Court finds that, on the facts of this applicant’s
case, the basis upon which she was treated differently to another in
a relevantly similar position, who for the reasons given at paragraph
42 above is considered to be the unintentionally
homeless parent of a child not subject to immigration control, was
her son’s immigration status. The Court specifically notes in
this regard that the applicant’s son was granted entry to the
United Kingdom on the express condition that he would not have
recourse to public funds. The Court finds that it was this
conditional legal status, and not the fact that he was of Sierra
Leonean national origin, which resulted in his mother’s
differential treatment under the housing legislation.
- The
Court does not agree with the Government that immigration status
cannot amount to a ground of distinction for the purposes of Article
14, since it is a legal rather than a personal status. The Court has
previously found that a person’s place of residence constitutes
an aspect of personal status within the scope of Article 14 (see
Carson and Others, cited above, § 70-71), in spite
of the fact that a person can choose their place of residence,
meaning that it is not an immutable personal characteristic.
Similarly, immigration status where it does not entail, for example,
refugee status, involves an element of choice, in that it frequently
applies to a person who has chosen to reside in a country of which
they are not a national. The Court further notes the Grand
Chamber’s judgment in A. and Others v. the United
Kingdom [GC], no. 3455/05, §§ 182-190, ECHR 2009 ...
in which, although it was not found necessary to consider the
complaints under Article 14, the Grand Chamber nonetheless upheld the
findings of the House of Lords that there had been impermissible
discrimination on the grounds of nationality or immigration status.
In so doing, the Court tacitly accepted immigration status as a
possible ground of distinction within the scope of Article 14.
Finally, the Court recalls that it has in its previous case law found
that a large variety of different statuses, which could not be
considered to be “personal” in the sense of being
immutable or innate to the person, amounted to “other status”
for the purposes of Article 14 (see Clift v. the United Kingdom,
no. 7205/07, § 58, 13 July 2010, for a review of the Court’s
case-law on this question).
- The
Court finds therefore, in line with its previous conclusions, that
the fact that immigration status is a status conferred by law, rather
than one which is inherent to the individual, does not preclude it
from amounting to an “other status” for the purposes of
Article 14. In the present case, and in many other possible factual
scenarios, a wide range of legal and other effects flow from a
person’s immigration status.
- The
Court recalls that the nature of the status upon which differential
treatment is based weighs heavily in determining the scope of the
margin of appreciation to be accorded to Contracting States. As
observed above at paragraph 45, immigration
status is not an inherent or immutable personal characteristic such
as sex or race, but is subject to an element of choice. In the
applicant’s case, while she entered the United Kingdom as an
asylum seeker, she was not granted refugee status. She cannot
therefore be described as a person who was present in a Contracting
State because, as a refugee, she could not return to her country of
origin. Furthermore, she subsequently chose to have her son join her
in the United Kingdom. Given the element of choice involved in
immigration status, therefore, while differential treatment based on
this ground must still be objectively and reasonably justifiable, the
justification required will not be as weighty as in the case of a
distinction based, for example, on nationality. Furthermore, given
that the subject matter of this case – the provision of housing
to those in need – is predominantly socio-economic in nature,
the margin of appreciation accorded to the Government will be
relatively wide (see Stec and Others, cited above, § 52).
- The
Court notes that while the Government argued before the Court of
Appeal in the Westminster v. Morris case that the differential
treatment under the Housing Act 1996, as it was prior to amendment,
was justified by the need to maintain immigration control and to
prevent “benefits tourism”, the justification as
presented to this Court was framed in terms of the need for the fair
allocation of a scarce resource. The Government maintained that it
was reasonable, in the allocation of social housing, to prioritise
those who had a fixed and permanent right to be in the United
Kingdom, or who had a priority need for housing due to dependants who
had such a right.
- The
Court finds that it is legitimate to put in place criteria according
to which a benefit such as social housing can be allocated, when
there is insufficient supply available to satisfy demand, so long as
such criteria are not arbitrary or discriminatory. As the Court has
previously held, any welfare system, to be workable, may have to use
broad categorisations to distinguish between different groups in need
(see Runkee and White v. the United Kingdom, nos. 42949/98 and
53134/99, § 39, 10 May 2007). The Court also recalls its
finding in the case of Anatoliy Ponomaryov and Vitaliy Ponomaryov
v. Bulgaria, no. 5335/05, § 54, 21 June
2011 (not yet final), that States may be justified in distinguishing
between different categories of aliens resident on its territory and
in limiting the access of certain categories of aliens to
“resource-hungry public services”. The Court takes the
view that social housing is such a public service.
- The
Court notes that section 185 of the Housing Act 1996 and the
Regulations referred to at paragraph 14 above,
when read together, set out clearly which classes of persons are
eligible for social housing; which classes are eligible for housing
assistance if threatened with homelessness; and which classes cannot
be considered when determining whether another person has a priority
need for housing assistance. The Court further notes that these
classes cannot be considered as arbitrary or discriminatory. Those
who have a fixed right to be in the United Kingdom, such as refugees
or those with permanent, unconditional leave to remain, are entitled
both to housing and to housing assistance. Those whose leave to
remain in the United Kingdom is conditional on their ability to
support themselves without recourse to public funds are not. The
Court notes in this regard the applicant’s argument that it is
inconsistent that she should be eligible for social housing but not
considered to be in priority need should she and her son become
homeless. However, there is nothing arbitrary in the denial of
priority need to the applicant when it would be based solely on the
presence in her household of her son, a person whose leave to enter
the United Kingdom, granted only a few months before the applicant’s
request for housing assistance, was expressly conditional upon his
having no recourse to public funds. By bringing her son into the
United Kingdom in full awareness of the condition attached to his
leave to enter, the applicant accepted this condition and effectively
agreed not to have recourse to public funds in order to support her
son. The Court upholds the Government’s argument that it is
justifiable to differentiate between those who rely for priority need
status on a person who is in the United Kingdom unlawfully or on the
condition that they have no recourse to public funds, and those who
do not, and finds that the legislation in issue in this case pursued
a legitimate aim, namely allocating a scarce resource fairly between
different categories of claimants.
- As
regards the proportionality of the means employed to realise this
legitimate aim, the Court has had regard to the specific
circumstances of the applicant’s case. Without underestimating
the anxiety which the applicant must have suffered as a result of
being threatened with homelessness, the Court observes that she was
never actually homeless and that, as pointed out by the Government
(see paragraph 24 above), there were duties
imposed by legislation other than section 193 of the Housing Act 1996
which would have required the local authority to assist her and her
son had the threat of homelessness actually manifested itself. In the
event, the applicant, who had previously lived in private
accommodation, moved with her son into other private sector housing,
the tenancy of which was secured with the assistance of the local
authority. The Court notes that, had the applicant been eligible and
considered to be in priority need, she would most likely have been
housed in temporary accommodation, quite possibly also within the
private sector, until a social tenancy became available. The private
sector tenancy obtained by the applicant was outside the Borough of
Southwark due to the shortage of suitable private sector housing
within the Borough. However, this may also have been the case had the
applicant been deemed to be in priority need, and had there been no
suitable accommodation available within the Borough of Southwark at
the given time. In the applicant’s case, she moved back to
Southwark when she was offered a social housing tenancy seventeen
months later, which was within a similar timescale as that in the
case of a person accorded priority need.
- In
these circumstances, the Court finds that the differential treatment
to which the applicant was subjected was reasonably and objectively
justified by the need to allocate, as fairly as possible, the scarce
stock of social housing available in the United Kingdom and the
legitimacy, in so allocating, of having regard to the immigration
status of those who are in need of housing. On the facts of the
applicant’s case, the effect of the differential treatment was
not disproportionate to the legitimate aim pursued. Accordingly,
there has been no violation of Article 14, taken in conjunction with
Article 8.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
2. Holds that there has been no violation of
Article 14 of the Convention taken in conjunction with Article
8.
Done in English, and notified in writing on 27 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech
Garlicki
Deputy Registrar President
