Asylum accommodation

Al-Ameri v Kensington & Chelsea and Osmani v Harrow LBC [2004] UKHL 4

In this case, the House of Lords considered whether residence in accommodation provided to an asylum-seeker by the National Asylum Support Service (NASS) under the Immigration and Asylum Act 1999 was capable of giving rise to a local connection with the area in which the accommodation was situated.

The respondents were asylum-seekers who had been provided with accommodation by NASS in Glasgow.

Subsequently, both were granted indefinite leave to remain in the UK with the consequence that they were no longer entitled to support from NASS but were entitled to apply for assistance as homeless persons under part 7 of the Housing Act 1996.

They applied to authorities in London.

However, the authorities decided, to refer the respondents to Glasgow CC on the basis that they had a local connection with that area.

The respondents' appeals to the county court were dismissed but he Court of Appeal (Lord Justice Buxton dissenting) allowed their appeals: [2003] EWCA Civ 235.

The authorities appealed to the House of Lords.

Under section198 of the 1996 Act, an authority may refer an applicant to another authority where: neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the authority's district; the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of the other authority; and, neither the applicant nor any person who might reasonably be expected to reside with him will run the risk of domestic violence in that other district.

Section 199(1)(a) provides that 'a person has a local connection with a district if he is, or in the past was, normally resident there, and that residence is or was of his own choice'.

The short issue for the Lords to decide was whether accommodation provided by NASS can be said to be accommodation of 'choice'.

Dismissing the authorities' appeal, the Lords unanimously held that an asylum-seeker has no choice as to the locality of accommodation provided by NASS under the 1999 Act.

Although an asylum-seeker has a choice as to whether or not to accept the support that is offered all other choices - including the choice of location - are made by NASS.

If an asylum-seeker accepts the support offered, he goes to the place where he is accommodated because he is told to do so and it can never be said, however content the asylum-seeker may be thereafter to remain there, that residence in that locality was of his 'own choice' for the purposes of section 199(1)(a).

That does not mean that the accommodation provided by NASS could never be capable of establishing a local connection.

Lord Scott of Foscote observed that if an asylum-seeker continues to reside in accommodation provided by NASS after he has been granted leave to remain, the circumstances may justify a conclusion that the accom-modation has become the residence of his own choice, even though he did not initially choose to live there.

The decision is of considerable significance to local authorities in London and the south-east, where most successful asylum-seekers wish to live so that they can join existing, established communities.

It may be seen as undermining the intention of the 1999 Act to disperse asylum-seekers throughout the UK.

Andrew Dymond, barrister, Arden Chambers, London