The following note appeared on the Doughty Street Chambers site. Anyone with clients (or applicants) in a similar position – in particular leave to remain granted under Appendix FM of the immigration Rules – should take note.
The DCLG has indicated that those granted Article 8 ‘leave to remain’ (and have recourse to public fund) will be made eligible for housing assistance under Parts VI and VII of the Housing Act 1996. Dominic Preston and James Kirk (in Romans v Southwark LBC and SSDCLG) and Ben Chataway (in Alabi v SSDCLG) were instructed by Morrison Spowart to issue discrimination challenges in the High Court asserting that Regulation 5(b) of the Allocation of Housing and Homelessness (eligibility)(England) Regulations 2006 (SI 2006/1294) unlawful categorises such applicants as ineligibility for housing assistance.
Currently those whose leave to remain is granted pursuant to Article 8 are only eligible for housing under regulation 5(b) if they were granted leave ‘outside the immigration rules’. Since 2012, most Article 8 applications for leave to remain are granted within the Immigration Rules (notably Appendix FM). Despite the 2012 changes, a number of Article 8 applicants are refused leave ‘within the rules’ (often because they have a history of bad character) but are nevertheless granted discretionary leave outside the rules, for instance because to return them to their country of origin would be unsafe or disproportionate in the circumstances. The applicants argued that those provisions were discriminatory and in breach of Articles 8 and 14 of the ECHR.
Having considered the arguments in Romans and Alabi, the secretary of state has acknowledged that there is a gap in the regulations that needs to be addressed. The parties have agreed to stay both claims in the light of the Secretary of State’s indication that forthcoming changes in the eligibility regulations are likely to confirm that the applicants are eligible for housing assistance. Southwark have also agreed to house the applicants pending the enactment of the new regulations.