A High Court judge was criticised last night after he ruled that a local authority was right to refuse housing to two homeless HIV-infected immigrants.
In a move widely interpreted as supportive of the Government's crackdown on "benefit tourism", Deputy Judge Roger Henderson QC said the pair, who entered the country lawfully as EU citizens, were not entitled to benefit from UK laws designed to help the homeless.
Immigrants' rights groups condemned the landmark judgment and warned that EU nationals could fall victim to the personal prejudices of council officers and benefit workers. They said it also undermined the rights of European nationals to cross frontiers - rights enshrined in EU law.
The judge ruled that Westminster city council acted lawfully when officials refused to accommodate Gaudenzio Cas-telli, 35, an Italian, and Jose Tristan- Garcia, 32, from Spain. He said they were not entitled to benefit from UK laws designed to help the homeless.
He added that homeless EU immigrants found to have no realistic prospect of finding work and likely to be a burden on the state "should head home".
Mr Castelli, a flower seller, first arrived in the UK in March 1994, hoping to start a plastic recycling business in London.
He told the council he was frustrated by his failure to achieve his ambition and became involved in drug-taking. After his pounds 3,000 capital ran out, he lived off friends and charity from a church. His health deteriorated and he went into hospital several times.
Mr Tristan-Garcia came to England in 1993, living with an uncle in Walthamstow and working as an office cleaner and part-time barman.
From February 1994, he had no paid employment and obtained income support and housing benefit, plus a disability living allowance because of difficulties with walking.
The judge rejected claims by lawyers for the two men that it was not proper for a local authority to decide the status of housing applicants and whether it owed a duty to house them.
The judge said the fact that Mr Tristan-Garcia had succeeded in obtaining work in August should not be allowed to "colour the facts" as in April it had been reasonable to assume that he had no prospects. For more than 18 months he had been without paid work.
"If EU law were to be so loosely interpreted that member states had to allow well over a year to other member states' nationals in poor health and with limited linguistic abilities to find non-specialist employment, the objective of securing the free movement of workers would in no true sense be promoted or fostered," said the judge. It would "probably undermine the Common Market and the security of its workers".
The claimants were given leave to take their case to the Court of Appeal and Westminster is now reconsidering the case of Mr Tristan-Garcia because he has found a job. Mr Castelli will continue to be granted temporary accommodation pending the outcome of the appeal, which the judge said should be heard urgently.
The ruling prompted angry reactions from minority support groups. The Joint Council for the Welfare of Immigrants said the ruling gave new powers to local authorities to make decisions on who conformed with EU law.
"The rights of community nationals have been thrown into jeopardy. This ruling will allow unqualified staff to vent their prejudices against anyone with a foreign-sounding name," said Don Flynn, European Projects worker. "It means that everybody who can be construed as having a foreign-sounding name will be vulnerable to extremism by a public official who can make decisions based on their own opinions or prejudices on who is a lawful resident."
Nick Hardwick, chief executive of the Refugee Council, warned the decision would increase the discrimination already faced by refugees.
Nick Partridge, chief executive of the the Terrence Higgins Aids charity, said: "It is disgraceful that a man with a life-threatening illness has been released from hospital only to face life on the street."
Chris Holmes, director of Shelter, said: "If this is the correct interpretation of the law it is utterly outrageous and uncivilised. What this could mean is that vulnerable people who are legally in this country will not be given anywhere to live."Reuse content