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27/02/2012

Homelessness, proportionality and children

A very welcome guest report on this s.204 Housing Act 1996 Appeal by Alice Hilken of 1 Pump Court, who acted for the appellant, instructed by Rahman & Co.

Kumaning v London Borough of Haringey December 2011, Central London County Court, HHJ Saggerson

The Appellant (A) was a British Citizen of Ghanaian origin who had lived in the U.K for over 15 years. He applied to the council (C) as homeless together with his wife, adult daughter and seven year old son, K. A’s wife & daughter had come from Ghana to join A in the UK in the UK in 2009, whereas K (who was seven years old at the time of A’s application and had a different birth mother) had been born in the UK and was therefore a British Citizen. A had separated from K’s mother in 2004 and K had lived with him ever since.

A told C during the course of their enquiries that he owned an 8 bedroomed property in Ghana, which was occupied by his four adult sons, their wives and children.

C then informed A that it considered him not to be homeless because there was accommodation in Ghana which was available to him and which it was reasonable for him and his family to occupy.

A applied for a review and instructed a solicitor, who wrote to C informing it that (a) A had no intention of returning to Ghana as he had no likely source of employment there and wished to exercise his right to remain in the UK as a British Citizen and to settle his family here; (b) he was receiving benefits in the UK (including Child Benefit in respect of K’s upbringing) which he would not receive were he to return to Ghana; (c) K’s upbringing had been in the UK and he was established at primary school here and (d) although neither he nor K were currently in contact with K’s birth mother, it was possible that contact might resume in the future. It was also stated that C’s decision represented a disproportionate interference with A’s and K’s Article 8 rights, given their status as British Citizens.

C upheld its decision on review, maintaining that Article 8 had no application to the case. It refused to accept that its decision impacted on A’s and K’s rights as British Citizens, on the basis that A the choice of remaining in the UK with his family rather than removing them to Ghana, if he wished. The letter stated: “You may continue to live in this country and you may exercise your rights as a British Citizen to claim housing benefit to rent a new home for yourself and your family….it is not the purpose of the Housing Act, however, to assist you to enjoy the “benefits of citizenship”.

A appealed. It was argued, citing the cases of ZH v Tanzania [2011] UKSC 4 and Birmingham CC v Clue (1) Secretary of State for the Home Department (Interested Party) (2) and Shelter (Intervener) (3)[2010] EWCA Civ, that C’s decision that it was reasonable for A and his family to take up occupation in accommodation in Ghana necessarily represented an unlawful interference with A’s and K’s rights to private and family life, since it was a necessary implication of that decision that A and his family should remove to Ghana to take up occupation there. C had misdirected itself in finding that Article 8 was of no application to the case, and accordingly, had failed to consider the proportionality of its decision or give sufficient weight to the intrinsic value of A and K’s British Citizenship. Further, it had failed to consider K’s best interests as a child to be of primary importance, as it was required to do under Article 3 of the United Nations Convention on the Rights of the Child (UNCRC). It was also argued that the decision was irrational and that, applying a proportionality analysis, it could never be said that the manner in which A and K’s life would be impacted by their removal to Ghana could be outweighed by any legitimate aim on the part of C.

C argued that Article 8 was not engaged. ZH v Tanzania and Birmingham v Clue were distinguishable because they were cases concerning potential deportation, whereas in the present case A had the option of remaining in the UK if he chose to seek housing in the private sector (a consideration which A argued was unlawful).

Held: The appeal was allowed. It was simply unrealistic for the council to state that it was not an inevitable implication of its decision that A and his family would have to remove to Ghana to take up occupation there. Consequently C had an obligation to (a) carry out a proportionality analysis of the impact of its decision on A’s and K’s Article 8 rights, and (b) consider whether taking up occupation in Ghana was in A’s son’s best interests, which were to be given primacy, following Lady Hale’s judgment in ZH v Tanzania. The decision was remitted for reconsideration.

 

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

1 Comment

  1. Mr T

    It’s also a breach of EU Art.20 using the same principles from the ECJ Zambrano case.
    Gov’t cannot “Constructively Deport” UK national child.
    Someone in Haringey council is clearly out of their depth.

    In the future Universal Credits will replace Housing Benefit, Tax Credits, and JSA, so having an overseas asset worth more than £16000, such as their house in Ghana, may well limit their options eventually.

    Reply

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