Bah v The United Kingdom – 56328/07 [2011] ECHR 1448

This is a decision of the European Court of Human Rights on the regulations for eligibility for housing support, after the declaration of incompatibility in Westminster v Morris [2005] EWCA Civ 1184.

It is a very significant case, not least because it has a direct bearing on the ‘corrective’ amendment that the Government made 4 years later in response to Morris via Schedule 15 Housing and Regeneration Act 2008 and the possibilities of any challenge to that Schedule. It also has broader implications for differential conditions for access to social welfare benefits in general, where a child subject to immigration control is a qualifying condition.

At issue is whether regulations preventing a child subject to immigration control from conferring priority need for the parent’s homeless application under Part VII Housing Act 1996 were a breach of Article 14 (Discrimination) and Article 8 (family and private life).

Ms Bah was a failed asylum seeker from Sierra Leone. In 2005, she was granted indefinite leave to remain. She then applied to have her son, a Sierra Leonean national born in 1997, join her. He arrived in 2007 with conditional leave to remain – no recourse to public funds. The son is ‘subject to immigration control’ for the purposes of Asylum and Immigration Act 1996.

Ms Bah applied as homeless to LB Southwark soon after her son’s arrival, having been turned out of her private accommodation. While Ms Bah was eligible for housing assistance, LB Southwark disregarded the son in assessing priority need under s.185(4) Housing Act 1996 as he was subject to immigration control. Southwark found she was not in priority need. This was upheld on review. LB Southwark used its rent deposit scheme to find Ms Bah a private sector tenancy, but this was outside the borough, a considerable distance from employment and school, and more expensive. Ms Bah remained on the Part VI housing list and obtained a one bed flat in Southwark in 2009. I presume that Ms Bah taking the private tenancy in 2007 meant that no further recourse to the national courts was possible.

In Westminster v Morris, the Court of Appeal made a declaration of incompatibility in relation to Art 14 in respect of s.185(4) Housing Act 1996. That clause states that ‘a person who is not eligible for housing assistance shall be disregarded in determining for the purposes of this Part […] (b) has a priority need for accommodation. Ms Morris was a British citizen with a daughter subject to immigration control and the declaration specified that the incompatibility arose from disregarding the dependent child of a British citizen. The Court of Appeal found that the clause was disproportionate to the supposed justification – to preserve immigration control and restrict ‘benefits tourism’, and that its discriminatory impact could not fall within the margin of appreciation, even if it had been considered.

A Mr Badu’s case was heard at the same time. He had indefinite leave to remain (considered by the Court of Appeal to be ‘equivalent’ to British citizenship), but as he had ongoing housing needs, a declaration would not have availed him. The Court of Appeal remitted his case for reconsideration to the local authority, with a direction to consider if he could be assisted under other legislation.

Schedule 15 Housing and Regeneration Act 2008 removed the effect of s.185(4) but only for British or EEA citizens and only to the extent that the housing duty could be discharged by an offer of a private sector tenancy, whether or not the applicant accepted that offer (unlike anyone else accepted as in priority need and eligible). This would make no difference to Mr Badu or indeed Ms Bah. As Ms Bah’s application had been made before Schedule 15 came into force, the effect of the Schedule was not up for consideration by the ECtHR (although it was raised).

Ms Bah’s application to the ECtHR was declared admissible despite the UK arguing it was manifestly ill founded.

Ms Bah’s argument was there was discrimination and that the underlying ground was nationality, even if officially cast as immigration status. In Westminster v Morris, the Court of Appeal had found that nationality was the underlying ground of the distinction. Weighty reasons were required to justify such discrimination.

The Government’s justification (see below) for such discrimination was weak. Further it was illogical to distinguish between purportedly different levels of connection to the UK in respect of priority need for accommodation for homelessness where no such distinction was made for Part VI allocation. The scarcity of social housing did not explain the discrimination as then it would be extended to Part VI allocation via the housing list. Further it could not be argued that EEA nationals had a greater connection to the UK than those with indefinite leave to remain, who were treated in all other practical respects as UK citizens, as EEA nationals had to be ‘qualified persons’.

Finally, Westminster v Morris was correctly decided and the COurt of Appeal had noted that Mr Badu, with indefinite leave, had ‘equivalent status’ to citizenship.

The EHRC, intervening, said that this case involved ongoing structural discrimination in domestic housing law. Schedule 15 marked an ‘inadequate and grudging approach’ to the Morris declaration, taken after considerable time. Schedule 15 replaced the old form of discrimination with a new one, differentiation between households in which the child was a ‘restricted person’ and those where they weren’t. The Government’s justifications were no different o before and the nationality of the dependant child was simply not relevant to the priority need of the parent.

The Government argued that Morris had been remedied by Schedule 15, but that the declaration in Morris did not apply to Ms Bah as she was not a British citizen, only had indefinite leave and was subject to immigration control. She was unable, both before and after Schedule 15 to rely on her son for priority need.

Even if Ms Bah had been accepted as having priority need, conditions in London would have meant a considerable period in temporary accommodation until a permanent offer was made. Temporary accommodation – for an average of 21 months – could be more expensive than a private tenancy. Ms Bah was never ‘actually homeless’ and there was other legislation requiring assistance to be given to children who were in need.

Differential treatment by reason of the son’s immigration status did not fall under Article 14 because the ground was not nationality or origin but immigration status. This was not an ‘other status’ within the terms of Art 14 as it was a legal status and not a personal characteristic. So there was no Art 14 discrimination.

Alternatively, the ground of immigration status meant that less justification of discrimination was required, as such discrimination flowed from the State’s need to control and monitor immigration, The case concerned the allocation of scarce resources – social housing – and there was a wide margin of appreciation on policy decisions.

The justification was the need to allocate scarce resources and the preference to allocate them to those with the greatest level of connection to the UK, which was UK and EEA citizens over those with indefinite leave. It was justifiable to prioritize based on a person and their dependants fixed and permanent rights to be in the UK. The son had no recourse to public funds as a condition of his permission.

Any comparison between the applicant and EEA nationals was irrelevant. More favourable treatment of EEA nationals stemmed from the ‘special legal order’ of the European Union and the special status of its citizens.

The ECtHR held:

1. The situation being considered was that which held before the implementation of Schedule 15 H&RA 2008

2. It was generally agreed that if there was a breach of Art 14, Art 8 was also engaged.

3. Ms Bah had not identified a specific comparator for the alleged discrimination. If it was a British citizen like Ms Morris, with a child subject to immigration control, then Ms Bah would have been treated in exactly the same way. However, more relevantly, if the comparator was a person with indefinite leave with a child not subject to immigration control, there would have been a difference in treatment. The court did not go further to decide wether Ms Bah was in a position analogous to either comparator, for the reasons below.

4. The alleged ground of distinction was nationality. The Court did not agree. The relevant ‘status’ was the son’s immigration status. However, against the Government’s arguments, immigration status can amount to an ‘other status’ for the purposes of Art 14. A personal status did not need to be immutable or innate (Clift v the United Kingdom no 7205/07 July 2010 and A, and Others v the United Kingdom [GC] no 3455/05 ECHR 2009).

5. Immigration status was not an immutable characteristic and involved an element of choice, where it does not entail refugee status, as it applies to a person who has chosen to reside in another country. The nature of the status upon which differential treatment is based weighs heavily on the margin of appreciation to be accorded.Ms Bah entered as an asylum seeker but was not granted refugee status. She then chose to have her son join her. Given the element of choice, differential treatment in this case must be objectively and reasonably justifiable but not to the same weighty degree as nationality.

6. The justification presented by the Government differed from that presented in Morris. It was presented as the need for the fair allocation of a scarce resource, to prioritise those who had a fixed and permanent right to reside or had a priority need through dependants with that right.

7. It was legitimate to put in place criteria for the allocation of a social benefit when not arbitrary or discriminatory. Broad categorisations of different groups were permissible.

8. The classes of people set out in s.185 (and amending regulations) could not be considered as arbitrary or discriminatory. Those who have a fixed right to be in the Country or those with permanent unconditional leave to remain are entitled to housing and housing assistance. Those whose leave to remain is conditional on their ability to support themselves without recourse to public funds are not.

9. There is nothing arbitrary in Ms Bah being eligible for social housing but not to be considered in priority need. Priority need would be based solely on the presence of her son whose leave was conditional. Ms Bah had brought her son to the UK in full knowledge of the condition attached to his leave.

10. It is justifiable to differentiate between those who rely for priority need on a person who is the UK unlawfully or with a no recourse condition and those who do not. The legislation in issue (pre Schedule 15) pursued a legitimate aim of allocating a scarce resource between different categories of claimant.

And 11. in considering proportionality, Ms Bah may well have suffered anxiety but was never actually homeless. There were other duties which would have required assistance had she and her son been homeless. The period she spent in a private tenancy was within a similar time scale to the likely period in temporary accommodation had she been accepted. Similarly, there was no certainty that temporary accommodation would have been within the borough.

The effect of differential treatment was not disproportionate to the legitimate aim pursued. The differential treatment was reasonably and objectively justified.

Comment

Oh dear, what a mess.

First, I have to say that I think Ms Bah was right about the spirit, if not the letter of the Court of Appeal decision in Morris. A distinction between a British citizen and someone with indefinite leave does not appear to have been something that the Court considered important, let alone a viable basis for differential treatment.

There is also a possibly significant error in the ECtHR’s finding that there were other duties under which the local authority would have had to accommodate Ms Bah and her son if they had been street homeless. The son, yes, under Children Act 1989, but assistance for Ms Bah under that act would not have been a duty.

The court does not deal well, or indeed at all, with the argument that it is irrational to restrict homeless assistance on this basis but not eligibility for social housing via Part VI in the same way. The argument is noted as being made by Ms Bah, but the court’s conclusions are expressed in terms of eligibility for social housing per se, not even making the argument that homeless provision is a distinct resource or form of provision to Part VI housing waiting lists. The lack of practical effect on Ms Bah as an individual rather helps the court to elide this point.

And that leads on to the suggestion that this was not, perhaps, a great case to bring on the facts. That there was little practical effects of the differential treatment beyond some anxiety for Ms Bah was clearly a significant factor for the Court. Knowing Southwark well as I do, it is hard to argue that Ms Bah wouldn’t quite probably have spent a similar period of time in temporary accommodation to the time she spent in a private tenancy, although unlikely to be out of borough in the same way.

The upshot then, is that while immigration status is a relevant status for the purposes of Article 14, it is justifiable to restrict access to homeless assistance, or indeed, social welfare, where the applicant is otherwise eligible if the qualifying factor is a child whose own immigration status is ineligible.

Although the law at issue in this case is that existing before the implementation of Schedule 15 H&RA 2008, any challenge to the distinction drawn in Schedule 15 between British and EEA citizens and those with indefinite leave to remain has now been blown out of the water. If this judgment holds, it is hard to see any such challenge succeeding.

Similarly, any challenge to the differential treatment between a British citizen with child subject to immigration control and one whose child isn’t – specifically that an offer of a private sector tenancy is sufficient to discharge duty for the former – must surely face a huge uphill battle. Although in this latter case, the argument about ‘a fixed right’ and ‘level of connection’ to the UK would perhaps be harder for the Government to maintain. Still, it is perhaps a good thing that Morris didn’t go all the way to this ECtHR.