R(Gullu) v LB Hillingdon [2018] EWHC 1937 (Admin)
Well now. This was another challenge to LB Hillingdon’s policy of requiring 10 years residence in borough for admission to the housing register. It follows after TW, SW, and EM, R (On the Application Of) v London Borough Of Hillingdon (2018) EWHC 1791 (our note here) which found that Hillingdon’s policy unjustifiably discriminated against Travellers. But with a very different outcome.
In the case, the challenge was that the policy discriminated against refugees. The claimant had been given Part VII homeless accommodation by LB Hillingdon once granted refugee status, but not allowed to join the housing register.
On the fundamental discrimination claim, Mostyn J held:
- The claimant is a recent arrival in Hillingdon who is a refugee. He is discriminated against in favour of long-term residents not because he is a refugee but because he is a short-term resident. Nobody is suggesting that discrimination on that basis is to be impugned. Indeed, as I have pointed out, it has been expressly authorised by Parliament and strongly encouraged by the government.
- The correct analogue is therefore another short-term resident who is not a refugee. That analogue might be a recent arrival from another part of the UK or a recent arrival from the EEA exercising treaty rights. The same treatment is meted out to the claimant and the analogue – both are denied priority by virtue of the 10-year residency rule. The claimant’s case can only get off the ground if he can show that his circumstances and those of the analogue are materially different: that they are unalike cases. If he can show that they are unalike then the defendant has to justify the same treatment being applied to both.
- But are they unalike? Mr Burton says the circumstances of a refugee and those of a voluntary migrant from Yorkshire or France are different because the refugee has no choice but to apply in Hillingdon whereas the analogue comes to Hillingdon by choice. Further, the refugee may be more vulnerable as a result of the persecution he has suffered which has resulted in the award of refugee status. All of this is true, but so what? The reason that each has started the 10-year journey may be different but that is immaterial to the process of starting the clock and counting the days, which is all that the measure stipulates.
- In R (On the Application of H & Ors) v Ealing London Borough Council Mr Justice Supperstone held that the circumstances of Irish travellers were so different to other short-term residents who were counting days under the rule as to make the uniform application of the rule to them unjustified. That decision I can well understand. Travellers are a nomadic people. It is in their blood and is their fundamental tradition. Therefore, as a matter of probability it is surely much more likely that an Irish traveller will not complete the 10-year journey than his or her analogue. The traveller and the analogue are unalike cases which should be treated differently.
- But the same cannot be said when comparing a recently arrived refugee to his or her analogue. In my opinion, for the purposes of assessing the impact of the 10-year rule, when it comes to starting the clock and counting the days their situations are the same. I therefore do not find that there is any actual discrimination here.
If that was wrong, then the discrimination under the scheme was not unjustified or without reasonable foundation.
- Is the objective of the rule, whether the qualification itself, or the uplift, sufficiently important to justify the limitation of a protected right? For these purposes a limitation of a protected right is assumed. In my judgment the answer to this question is plainly yes. The rule is obviously highly important and is an expression of national and local democratic processes. The actual limitation is, as I have explained, minimal and requires no more than that the claimant is treated the same as any other recent arrival.
- Is the measure is rationally connected to that objective? The answer to this is plainly yes
- Could a less intrusive measure not have been used without unacceptably compromising the achievement of the objective? In my judgment to water down the rule for refugees to say 5 years would be quite wrong and arguably unlawful positive discrimination in their favour. The alternative ways in or up, set out above, entirely negate any merit which this argument might otherwise have.
- When balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, does the former outweigh the latter? The answer to this is plainly no. The latter greatly outweighs the former.
I am satisfied that the scheme is not manifestly without a reasonable foundation.
Further, Hillingdon’s Equality Impact Assessments prepared during the adoption of the scheme had taken into account the impact on ‘people arriving from outside this country’ so there was no Public Sector Equality Duty breach.
The claim was dismissed.
Comment
This might sit oddly with TW. There might also be questions about the approach to a a necessary comparator (should it be someone who has only just moved to the borough of their own free will, whether from Paris or Doncaster? Should those people not be considered to have planned their housing circumstances in a way that a refugee simply cannot?).
I gather there may be an attempted appeal. But this does serve as a further illustration of the difficulty of challenging even the most ludicrously restrictive of allocation policies.
Agreed it’s odd. Justice Mostyn’s evaluation that ‘the traveller and the analogue are unalike’ because of blood and tradition seems very generous in contrast to how ungenerous he’s being with refugees. I bet they wish their blood and tradition held similar weight! Maybe there needs to be a refugee-traveller test case.