An interesting argument emerged before the Court of Appeal in Lekpo-Bozua v Hackney LBC (SoS for Communities and Local Government joined as interested party) [2010] EWCA Civ 909. The issue arose around the difference between, on the one hand, an entitlement to the main housing duty under section 193, Housing Act 1996, to successful homelessness applicants, and, on the other hand, the duty owed in “a restricted case” under section 193(7AA). The restricted case material was inserted into the 1996 Act (finally) by section 314, Housing and Regeneration Act 2008, in order to deal with the declaration of incompatibility found in R(Morris) v Westminster CC [2006] 1 WLR 505 on the previous provision (disregard of applicant’s ineligible child for Part VII). A restricted person is someone who is ineligible, or subject to immigration control, and either doesn’t have leave to enter or remain in the UK or whose leave is without recourse to public funds. Where a household includes such a person they are subject to the restricted duty in section 193(7AA)-(7AD). In summary, the duty ceases if the household is made an offer of a private sector tenancy (an AST will do) and the authority is encouraged to bring their duty to an end in this way (see s 193(7AD)).
Ms Lepko-Bozua was seeking to avoid the application of section 193(7AA). She is British but her niece, who has the lovely name Océane (with an acute accent on the first e), has lived with her (and her ex) in the UK for about nine years. Ms Lepko-Bozua became homeless as a result of DV from her ex. Hackney found that Océane was a restricted person because she was not a qualified person under regulations 4 and 6, Immigration (European Economic Area) Regulations 2006. They also found that she had not “resided legally for a continuous period of five years” in the UK (see Article 16, Directive 2004/38/EC). On the s 204 appeal, it was found that she was not a qualified person (even though she was in education, she did not have comprehensive insurance cover in the UK and couldn’t give the sufficient resources assurance – see reg 4(1)).
The argument for her was that she had, in fact, “resided legally” in the UK for five years in accordance with Art 16. The legality derived from the fact that she had not been removed from the UK by the SoS. Now, this is an argument that I have also been looking at, quite separately, and found quite attractive (despite a nagging doubt). Consider Recital 17 to the Directive, which requires “compliance with the conditions laid down in this Directive” for the right to permanent residence (conditions such as not being an unreasonable burden on the social assistance system of the host state). The Court of Appeal dismissed the argument for Ms Lepko-Bozua pretty much out of hand:
Asked by the Court for the legal principle on which his submission rested, Mr De Mello struggled to answer. He was not promoting a kind of prescription, but was promoting a variety of waiver. He pointed to Recital 21 of the Directive which provides for host Member States to decide whether to grant social assistance before a person has acquired a right of permanent residence. He struggled to rationalise the selection of a period of 5 years for the operation of his variety of waiver, when Océane does not come within Article 16 of the Directive which is the origin of a period of 5 years. It might just as well on his argument be 2 years or 20. He did not begin to establish a basis in EC law for the variety of waiver for which he contended. ([17])
Residing “legally” means as per Recital 17 in compliance with the Directive’s conditions. Océane “remained [in the UK] upon tolerance subject to immigration control with no right to remain” ([18]). The Court cites McCarthy v SoS for Home Department and Abdirahman v SoS for Work and Pensions in support, and explained (politely) a comment made by Kay LJ in Kaczmarek v SoS for Work and Pensions (at [23]) as well as R(Badar) v Ealing LBC (irrelevant as right of residence was not contested).
Interesting argument, but unsuccessful – s 193(7AA) applied.