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
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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