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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ariemuguvbe, R (on the application of) v London Borough of Islington [2009] EWCA Civ 1308 (21 October 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/1308.html Cite as: [2010] HLR 14, [2009] EWCA Civ 1308 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH, ADMINISTRATIVE COURT
(MR JUSTICE CRANSTON)
Strand, London, WC2A 2LL |
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B e f o r e :
(MASTER OF THE ROLLS)
LADY JUSTICE SMITH
and
LORD JUSTICE SULLIVAN
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THE QUEEN on the Application of ARIEMUGUVBE |
Appellant |
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- and - |
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LONDON BOROUGH OF ISLINGTON |
Respondent |
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Mr T Gallivan (instructed by Legal Services) appeared on behalf of the Respondent.
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Crown Copyright ©
Lord Justice Sullivan:
Factual background.
"It is the authority's stance that your client's adult children are not dependent children who could reasonably be expected to reside with the applicant. They are independent adult children with families and therefore should be able to make their own arrangements regarding housing."
"My authority considers that your client's proposed challenge to its decision dated 19 February 2008 is misconceived. Your client's adult children are subject to immigration control and have been admitted to the United Kingdom on condition that they do not work and have no recourse to public funds. They have no income and are being supported by your client, who wants them to live with her because she does not want to see them homeless. The provision of larger accommodation and required by your client in their own right would amount to recourse to public funds by her adult children and, accordingly, a breach of their conditions of entry to the United Kingdom."
"In these circumstances the authority does not accept that your client's adult children normally 'reside' with her within the meaning of Section 176 of the Housing Act 1996 […] For the above reasons, as well as those set out in its letter dated 19 February 2008, the authority considers that the decision not to take into account your client's adult children in determining the suitability of any accommodation occupied by, or to be offered to, your client is lawful."
Legal framework.
"…shall comply with the provisions of this part in allocating housing accommodation"
Subsection 7 provides that:
"Subject to the provisions of this Part, a local housing authority may allocate housing accommodation in such a manner as they consider appropriate."
Section 160A(1) provides, so far as relevant:
"A local housing authority shall not allocate housing accommodation --
(a) to a person who is ineligible for an allocation of housing accommodation by that authority by virtue of subsection (3) or (5);
(b) to two or more persons jointly if any of those persons is ineligible for such an allocation by virtue of subsection (3) or (5) […]
(3) A person subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is (subject to subsection (6)) ineligible for an allocation of housing accommodation by a local housing authority unless he is of a class prescribed by regulations made by the Secretary of State."
"1) Every local housing authority shall have a scheme [their allocation scheme] for determining priorities and as to the procedure to be followed, in allocating housing accommodation
(2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to -- […]
(c) people occupying unsanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;
(8) A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme"
The judgment of Cranston J.
"[Local housing authorities] must, of course, act in accordance with their allocation policy. In this case, there is no challenge to the policy itself. The complaint is that Islington Council has failed to follow their published policy, in that they have not properly applied the concept of "household". In my view, the Council was entitled to interpret "household" by reference to its ordinary, everyday usage. It was up to them to decide whether these five adult children were members of the Claimant's household. They decided these adult children ought not to be taken into account as part of the household, given their ages and also given their precarious immigration status. It will be recalled that in Kimvono, Collins J had referred to precarious immigration status as a factor to be taken into account. In the present case in my judgment, Islington Council were entitled to adopt the interpretation that they have. This is not, in my view, a case where they departed from their policy, or failed to apply their policy, rather they have adopted an interpretation which is a reasonable interpretation, given their knowledge, and given the circumstances of the applicant and her family. Moreover, it seems to me that Islington Council are also entitled to take into account the considerations which Sir Thomas Bingham MR mentioned in the Tower Hamlets case. That policy is encapsulated, as well, in the immigration rules. Islington, as it was obvious in at least one of the letters to which I have referred earlier, took into account the fact that, by granting accommodation in this case, there would be recourse to public funds by those subject to immigration control. In my view, it was entitled in its discretion to do that."
The authorities.
"Insofar as an application is made by an illegal overstayer for a tenancy of local housing authority accommodation, the housing authority has the remedy in its own hands in the management of its housing list and in the questions in the application form to be filled out by the prospective tenant together with the interview. If the right questions are asked, in the vast majority of cases the immigration situation will be identified, in not its final resolution. The housing authority is free to make its own inquiries. If false answers are proven, Ground 5 will apply and it will be a ground for possession of the property. There will not be many cases where nothing is asked by the landlord nor answered by the tenant. The application of the policy by a housing authority to refuse to provide public sector housing to applicants who are illegal immigrants or overstayers could not be said to be outside the proper exercise of its powers under Part II (see by way of analogy Eastleigh BC v Betts [1983] 2 AC 613). In the present case the immigration status of the appellant might well have caused this housing authority, with knowledge of the facts, not to offer the appellant a tenancy. In any event, as we have already said, if the Immigration authorities have decided to deport, that decision will in itself resolve the issue."
The only other authority to which it is necessary to refer is the Tower Hamlets case referred to by Cranston J in his judgment.
"It is common ground that housing authorities owe no duty to house those, homeless or not, priority need or not, who require leave to enter and illegally enter without any leave. I agree with this view. It would be an affront to common sense if those who steal into the country by unlawful subterfuge were then be housed at public expense. But what is the legal rationale of this agreed rule? It cannot be derived from any process of construction from the Housing Act 1985 or the Immigration Act 1971. It can only I think be the inference, derived from common sense and fortified by the Immigration Rules [in R v Hillingdon London Borough Council ex parte Streeting [1981] WLR 1425] that Parliament cannot have intended to require housing authorities to house those who enter the country unlawfully. If this is the correct rationale of the agreed rule, I cannot see why the position of those who enter unlawfully by fraudulently obtaining leave to enter should be differentiated from the position of those who enter unlawful by evading the requirement to obtain leave to enter altogether."
Submissions and analysis.
"Her immigration status is, in the circumstances of this case, irrelevant to the local authority's duties in that regard. Naturally, the Council could regard issuing return status as material if satisfied that the dependant's position in this country was as a matter of fact precarious. But that is not the position here."
Thus Collins J acknowledged that there would be circumstances in which the immigration status of an applicant's child was capable of being legally a relevant consideration.
"In general applicants are selected for rehousing according to a points scheme. Applicants are given points for housing need factors, and these points are added together.
The needs of all individuals in the applicant's household will be taken into account when points are awarded…"
"The Allocation Scheme cannot cover every eventuality […] At various sections of the policy reference is made to rules for determining priority and eligibility for housing. In all these instances, subject to any legal constraints, discretionary powers may be used to deal with special cases which may need to be treated in an exceptional way."
"Points are given to applicants on the housing list as follows […]
Social housing tenants who are overcrowded: 15 points;
sexual overcrowding, where two people of opposite sex have to share a bedroom and one is aged 10 years or older (unless they are either 16 or over and living as a couple): 10 points;
age overcrowding, where a person aged 16 or older has to share a bedroom with another person (unless they are both 16 or older and living as a couple, this includes parents having to share with their children): 10 points."
Lady Justice Smith:
Lord Neuberger MR:
Order: Appeal dismissed