Facts of the case
Husenatu Bah, is a Sierra Leonean national who was granted indefinite leave to remain in the UK in 2005 following an application for asylum in 2000. Her young son was granted leave to enter and remain in the UK on the basis that there was to be no recourse to public funds.
Ms Bah was placed in a position where she was threatened with homelessness and as such, she made an application for homelessness assistance under the Housing Act 1996 to the London Borough of Southwark. In order to secure assistance, she was was required to show that she was homeless/threatened with homelessness, that she had a priority need, and that she did not make herself ‘intentionally homeless.’
Ordinarily applicants with minor children are treated as having a ‘priority need’ for the purposes of homelessness applications under s. 189 of the Housing Act 1996. However, because Ms Bah’s son had only been granted leave to remain in the UK on the basis that he would have no recourse to public funds, the local authority found that he could not be taken into consideration for the purposes of her application under the terms of section 185(4) of the Housing Act 1996. The decision was upheld by the local authority upon review.
Arguments on behalf of the appellant
You may recall the case of West Minster City Council v Morris  EWCA Civ 1184. This was the case in which the Court of Appeal made a declaration of incompatibility with of section 185 (4) of the Housing Act 1996 with Articles 14 and 8 ECHR.Section 185(4) The was declared incompatible to the extent that it required dependent children of British citizens who were habitually resident in the UK to be disregarded when it came to determining who had a ‘priority need’ for a homelessness assistance (eventually after dragging its feet the former Labour Government amended the Housing Act 1996 through Schedule 15 to the Housing and Regeneration Act 2008. The legislation amended the position for British citizens only, and not for those with indefinite leave to remain in the UK- this case deals with the law prior to these changes.
Accordingly in the light of the above, the appellants argued that the above provisions breached Article 8 ECHR (right to respect for home and private and family life) in conjunction with Article 14 (enjoyment of rights without discrimination) ECHR. The appellants asserted that discrimination was on grounds of nationality, and that it could not be justified in respect of priority need for accommodation, when no such distinction was made for the allocation of social housing more generally. It was also argued that the position was illogical as EEA nationals were treated as having a greater connection than those with ILR for the purposes of priority need for housing as a homeless person.
The Court’s assessment
The Court starts of by noting that its judgment applies only to the scheme that existed at the relevant time, and not the new legislative scheme enacted following the Morris case (all be this continues to treat those with ILR differently but amends the position for those with British citizenship.)
It finds that the facts of the case fall within the ambit of Article 8 ECHR. Following Stec, it then goes on to consider whether the scheme is compliant with Article 14 ECHR and the requirement not to discriminate on specified grounds.
The Court does not dwell on the issue of the relevant comparator in its consideration of Article 14 ECHR as it dismisses the appeal on other grounds. It simply note that the comparator cannot be a British citizen given that the same regime was originally applicable at the time of the decision. It suggests that someone with ILR who has a child who does not have conditional status or is not subject to immigration control might be an appropriate comparator.
It takes the view that in this case, the basis for the discrimination was immigration status rather than nationality – it was the conditional legal status which was granted on the express condition that he would not have recourse to public funds, and not the fact that he was Sierra Leonean that resulted in differential treatment in the view of the Court. Contrary however to the Government’s submissions, it states that immigration status can amount to a ground for distinction for the ppurposes of Article 14 ECHR. However in such cases the State has a large margin of appreciation. The Court articulates the position in the following terms at para 147:
“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 (Chamber) then goes on to find that it is justifiable to differentiate between those rely upon someone with conditional status which is subject to a no recourse to public funds requirement or someone with no leave, and those who do not for the purpose of the priority need requirement under the Housing Act. It asserts that the aim of allocating scarce resources fairly between different categories is a legitimate aim, and that the means was proportionate to the aim.
In relation to proportionality it refers to the circumstances of the applicant who moved into private sector accommodation outside the borough, and was subsequently offered council accomodation within the Borough. Accordingly it unanimously dismisses the Article 14/8 ECHR appeal. For a full comment by a housing law lawyer see the piece on the Nearly Legal blog on the case.