LAW REPORT : Council under no duty to house EC nationals

LAW REPORT 11 October 1995 Regina v Westminster City Council, ex parteCastelli;R v Same, ex parte Tristan-Garcia; Queen's BenchDivision(RogerHenderson QC, sitting as a deputy judge); 5 October 1995 A housing authority has pow

er to decide whether an applicant for housing has the right to reside in the United Kingdom in order to decide whether it owes a duty to provide accommodation under Part III of the Housing Act 1985.

Roger Henderson QC dismissed two applications for judicial review of the council's decisions that it owed no housing duty to either applicant.

The first applicant, an Italian, arrived in the United Kingdom in March 1994 with pounds 3,000 to set up a business. However he was unsuccessful, his health deteriorated and he suffered from being HIV positive. In February 1995 the council secured temporary accommodation for him under section 63 of the Housing Act 1985 and made inquiries into his possible homelessness under section 62. In April the council decided that it owed no duty to house him under Part III of the Act as he had no right of residence in the UK.

The second applicant came from Spain to the UK in February 1993. He lived with an uncle and obtained employment. He returned to Spain in early 1994 and came back to the UK in February 1994 when he had no paid employment and had to leave his uncle's accommodation. He had HIV infection and obtained income support and housing benefit.

He was informed by the immigration and nationality department's standard letter that his right as an EC national to enter and reside in the UK was on a non-economic capacity provided he had enough resources to avoid being a burden on public funds. He was asked to make arrangements to leave the UK but told that if he did not do so he would not be forced to leave. The council decided that it was under no duty to house him under Part III since he had no right to reside here.

Jan Luba (Terrence Higgins Trust; Immunity Legal Centre) for the applicants; Clive Hugh Jones (Council Solicitor) for the council.

Roger Henderson QC said that the preliminary point was whether the council had any proper function in making decisions about the applicants' rights to reside in the UK. The reasoning in R v Secretary of State for the Environment, ex p Tower Hamlets LBC [1993] QB 632 belied any distinction between inquiries about entry and inquiries about residence. Although it would not be wrong for the council to take advice from an appropriate government department, the council, rather than the IND in this case, was the appropriate authority to decide about the applicants' status and about whether and if so what duties were owed under the 1985 Act.

At the time when the council made its decision neither applicant had any right under EC law to be present in the UK and domestic law conferred no such right. The UK immigration authorities had decided to do nothing to remove them but they enjoyed no right not to be removed.

In the light of the Tower Hamlets case, a person who had entered this country illegally and who had acquired no right be here was owed no duty by a local housing authority under Part III of the Act. Applying that rationale, no duty was owed to a person who had no right to reside and in respect of whom the immigration authorities had made no clear decision that they were sanctioning his residence. Parliament did not intend housing authorities should owe duties to people who had come from other EC states who were not self-supporting, not exercising rights of workers, or otherwise discharging functions compatible with the promotion of European objectives.

Housing authorities could construe the status of recipients of IND letters as unlawful and decide they owed no duties to such persons. If the consequence of a person's having no right of residence was that the council owed no duty to him, his reasonable course was to turn to the place where he had such a right. If he was not exercising a community right and he was homeless, he should head home. If on an objective and stringent examination of the evidence his residence was in reliance on no right, it was reasonable and lawful that no Part III duty was owed to house him once that decision had been lawfully made.

The council had the power and the duty to decide what the applicants' rights, if any, were in respect of residence. The decision in each case was lawful.

Ying Hui Tan, Barrister

Suggested Topics
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Geography Teacher

£24000 - £33600 per annum + pre 12 week AWR : Randstad Education Manchester Se...

E150/2014 - English Language Checker (Grade B3)

On Application: Council of Europe: The European Court of Human Rights’s judgme...

Marketing Executive

£28000 - £32000 per annum: Charter Selection: A professional services company ...

Project Manager - Bristol South West

£400 - £450 per day: Orgtel: Project Manager (PM), Key Banking Client, Retail ...

Day In a Page

A History of the First World War in 100 Moments: Peace without magnanimity - the summit in a railway siding that ended the fighting

A History of the First World War in 100 Moments

Peace without magnanimity - the summit in a railway siding that ended the fighting
Scottish independence: How the Commonwealth Games could swing the vote

Scottish independence: How the Commonwealth Games could swing the vote

In the final part of our series, Chris Green arrives in Glasgow - a host city struggling to keep the politics out of its celebration of sport
Out in the cold: A writer spends a night on the streets and hears the stories of the homeless

A writer spends a night on the streets

Rough sleepers - the homeless, the destitute and the drunk - exist in every city. Will Nicoll meets those whose luck has run out
Striking new stations, high-speed links and (whisper it) better services - the UK's railways are entering a new golden age

UK's railways are entering a new golden age

New stations are opening across the country and our railways appear to be entering an era not seen in Britain since the early 1950s
Conchita Wurst becomes a 'bride' on the Paris catwalk - and proves there is life after Eurovision

Conchita becomes a 'bride' on Paris catwalk

Alexander Fury salutes the Eurovision Song Contest winner's latest triumph
Pétanque World Championship in Marseilles hit by

Pétanque 'world cup' hit by death threats

This year's most acrimonious sporting event took place in France, not Brazil. How did pétanque get so passionate?
Whelks are healthy, versatile and sustainable - so why did we stop eating them in the UK?

Why did we stop eating whelks?

Whelks were the Victorian equivalent of the donor kebab and our stocks are abundant. So why do we now export them all to the Far East?
10 best women's sunglasses

In the shade: 10 best women's sunglasses

From luxury bespoke eyewear to fun festival sunnies, we round up the shades to be seen in this summer
Germany vs Argentina World Cup 2014: Lionel Messi? Javier Mascherano is key for Argentina...

World Cup final: Messi? Mascherano is key for Argentina...

No 10 is always centre of attention but Barça team-mate is just as crucial to finalists’ hopes
Siobhan-Marie O’Connor: Swimmer knows she needs Glasgow joy on road to Rio

Siobhan-Marie O’Connor: Swimmer needs Glasgow joy on road to Rio

18-year-old says this month’s Commonwealth Games are a key staging post in her career before time slips away
The true Gaza back-story that the Israelis aren’t telling this week

The true Gaza back-story that the Israelis aren’t telling this week

A future Palestine state will have no borders and be an enclave within Israel, surrounded on all sides by Israeli-held territory, says Robert Fisk
A History of the First World War in 100 Moments: The German people demand an end to the fighting

A History of the First World War in 100 Moments

The German people demand an end to the fighting
New play by Oscar Wilde's grandson reveals what the Irish wit said at his trials

New play reveals what Oscar Wilde said at trials

For a century, what Wilde actually said at his trials was a mystery. But the recent discovery of shorthand notes changed that. Now his grandson Merlin Holland has turned them into a play
Can scientists save the world's sea life from

Can scientists save our sea life?

By the end of the century, the only living things left in our oceans could be plankton and jellyfish. Alex Renton meets the scientists who are trying to turn the tide
Richard III, Trafalgar Studios, review: Martin Freeman gives highly intelligent performance

Richard III review

Martin Freeman’s psychotic monarch is big on mockery but wanting in malice