Lekpo-Bozua v Hackney LBC [2010] EWCA Civ 222 [Not on Bailii]

Ms L-B had applied to Hackney as homeless. Hackney accepted that she was eligible, homeless, not intentionally homeless and in priority need, because her niece, a child, lived with her. However, while Ms L-B was a UK citizen, her niece was an EU national. Hackney contended that this meant the niece was a restricted person within the meaning of section 184(7) Housing Act 1996:

so that its duty to re-house her was the more limited duty imposed by section 193(2) and (7)(AA) of the Act. That meant that its duty to the applicant continued only until she accepted or refused an offer of private accommodation as defined in section 193(7AC).

The Court of Appeal was told that the only issue to be decided on appeal was whether the niece has the right to reside freely in the United Kingdom under Article 18 of the EU Treaty. If she does then the full housing duty would be owed by Hackney.

Art 18 applies to a ‘qualified person’. The niece did not fall under any of the definitions of ‘qualified person’ in Regulation 6(1) of the Immigration (European Economic Area) Regulations 2006. Ms L-B argued that Baumbast v SSHD (Case C-413009) [2002] ECR-701 meant that proportionality applied to limitations and conditions under a directive (here Directive 2004/38/EC) such that:

If it can be seen that there is an accidental lacuna in the Directive, Article 18(1) must be applied to fill it where it is plainly appropriate for a person to have a right of residence by virtue of being a citizen of the union. Where, however, it is possible to discern in the Directive a deliberate intention to exclude a particular class of persons, it is not legitimate to resort to Article 18(1), since to do so would undermine the Directive.

The niece had lived in the UK with her aunt for 9 years, receiving an education and benefits here. At s.204 appeal, Ms L-B contended that this meant there was a clear lacuna in the directive and regulations, which should be interpreted in her favour. Hackney argued that the regulations were carefully worded. Students were a qualified person only if they had comprehensive sickness cover, which the niece didn’t, and had no recourse to public funds The definitions of family members did not extend to the niece. The Circuit Judge held against Ms L-B.

On application for permission, Ms L-B argued:

i) Article 8 applied as the homeless duty in Local Authorities was intended to preserve family life and the legislation discriminated between foreign (EU) nationals and UK children, which was not justifiable.
ii) The niece had access to the NHS as a resident in the UK, so Reg. 6 was besides the point.
iii) If the regulations and directive gave rise to a breach of human rights, that was a lacuna falling under Article 18.
iv) that in light of recent developments in the case law of the European Court it is no longer necessary to find a lacuna before considering the question of proportionality.

Hackney argued that a scheme which enabled discharge of housing duty by means of an AST could not fall foul of the convention on human rights.

The Court of Appeal took the view that the relevant European law was complex and of wider importance. In addition, there was not time to consider Teixeira v Lambeth and Ibrahim v Harrow properly, but it may be that further clarification was required in this area. Permission to appeal allowed.

Comment
It will be interesting to see how this goes. It doesn’t seem to quite fall under Ibrahim, but it may be that the decisions on Art 12 rights are relevant. That said, I can see Hackney’s argument on ASTs and a lack of breach of Art 8. There was no proposal to divide the family. Thanks to Garden Court bulletin for the heads up on this case.