Leave to enter - Indefinite leave

Bah v United Kingdom: European Court of Human Rights (Garlicki, President, Bratza, Mijovic, Hirvela, Nicolaou, Bianku and De Gaetano): 27 September 2011

The claimant was an asylum seeker from Sierra Leone. She arrived in the United Kingdom in 2000. Although her asylum claim was refused, she was allowed to remain, and in 2005 was granted indefinite leave to remain. She then applied for her son to join her. This was allowed on condition that he should not have recourse to public funds.

When her son arrived, the claimant's landlord was reluctant to accommodate him as well as his mother, so she applied to the local authority for assistance in February 2007. The claimant's son was not considered in determining whether the claimant was in priority need, in accordance with section 185(4) of the Housing Act 1996. In March 2007 the authority decided that the claimant was not in priority need and not entitled to housing. That decision was upheld in May 2007. At no point was the claimant actually made homeless. The claimant made an application to the European Court of Human Rights, contending that the United Kingdom's policy had constituted a violation of article 14 of the European Convention on Human Rights, taken in conjunction with article 8.

The claimant submitted that the underlying ground of discrimination against her had been nationality, even if the official ground was immigration status. She contended that by amending the relevant legislation so that it only improved the position for those with citizenship (or nationals of other EEA states and Switzerland) the defendant had failed to give full consideration to the case law.

The defendant submitted that, following the decision in Westminster v Morris [2005] All ER (D) 164 (Oct), the relevant provisions of the Housing Act 1996 had been amended by schedule 15 of the Housing and Regeneration Act 2008. The defendant submitted that the claimant would not have been automatically entitled to social housing even if she had been accepted as having a priority need, especially given the shortage of social housing in London.

The legislation imposed different treatment to reflect the need to allocate scarce resources and to allocate to those with the greatest connection to the UK, which was possessed by British and EEA citizens rather than those with indefinite leave to remain in the UK. It submitted that in any case, since the claimant had obtained an offer of social housing in March 2009, she had spent a similar amount of time in privately leased accommodation as she would have done had she been granted temporary accommodation. It further submitted that in the circumstances she could have paid higher rent in temporary accommodation than she would have paid in the private accommodation she had found with the assistance of the local authority.

The Equality and Human Rights Commission, intervening, submitted that the case involved structural discrimination in the domestic housing legislation and criticised what it contended had been a grudging approach to changing the law in the wake of Westminster v Morris.

It argued that the nationality of the dependent child that triggered the priority need for assistance on the part of the parent was irrelevant to the objective behind Pt 7 of the Housing Act 1996, which was keeping families in need together, and that if there had been a logical link it would not amount to the weighty justification necessary to render the discrimination acceptable. The application would be dismissed.

It would be legitimate to put in place criteria according to which a benefit such as social housing could be allocated, where there was insufficient supply to satisfy demand, so long as criteria were not arbitrary or discriminatory. To be workable, any welfare system had to use broad categorisations to distinguish between different groups in need. Further, states could be justified in distinguishing between different categories of aliens resident on its territory and in limiting the access of certain categories of aliens to resource-hungry public services.

By bringing her son into the UK in full awareness of the condition attached to his leave to enter, the applicant had accepted that condition and had effectively agreed not to have recourse to public funds in order to support her son. It was justifiable for the government to differentiate between those who relied for priority need status on a person who was in the UK unlawfully or on the condition that they had no recourse to public funds, and those who did not.

The legislation in the instant case pursued a legitimate aim, namely allocating a scarce resource fairly between different categories of claimant. Regarding proportionality, the claimant had never been made homeless and would in any extent have been assisted under section 193 of the Housing Act 1996 had the threat of homelessness materialised (see [51] of the judgment).

The different treatment of the claimant had been reasonably and objectively justified by the need to allocate social housing as fairly as ever and the legitimacy of so doing of having regard to the immigration status of those needing it. The effect of the differential treatment had not been disproportionate to the legitimate aim pursued (see [52] of the judgment).

R (on the application of Morris) v Westminster City Council; R (on the application of Badhu) v Lambeth London Borough Council [2005] All ER (D) 164 (Oct) applied.