Joint Committee On Human Rights Twenty-Third Report



Appendix 4: Recent correspondence received in relation to declarations of incompatibility

1. LETTER FROM PHIL WOOLAS MP, MINISTER FOR LOCAL GOVERNMENT, OFFICE OF THE DEPUTY PRIME MINISTER, DATED 27 OCTOBER 2005, RE DECLARATION BY THE COURT OF APPEAL THAT SECTION 185(4) OF THE HOUSING ACT 1996 IS INCOMPATIBLE WITH ARTICLE 14 ECHR

This letter is to inform the Committee that a declaration of incompatibility has been made by the Court of Appeal, in the case of R (on the application of Sylviane Pierrette Morris) v Westminster City Council [2005] EWHC 1184 (CA). The decision upholds (with amendment) a declaration made by the High Court, which we previously drew to your attention.

The Court of Appeal also considered the case of R (on the application of Joseph Papa Badu) v The London. Borough of Lambeth, which raised similar issues.

The court has declared that section 185(4) of the Housing Act 1996 is incompatible with Article 14 of the Convention, to the extent that it requires a dependent child of a British citizen, if both are habitually resident in the United Kingdom, to be disregarded when determining whether the British citizen has a priority need for accommodation, when that child is subject to immigration control.

Section 185(4) is a provision of the homelessness legislation that prohibits a housing authority from taking account of a person from abroad who is ineligible for assistance when deciding whether another person (i.e. a homeless applicant) is homeless or has a priority need for accommodation. Who is a person from abroad who is ineligible for assistance is set out partly in the primary legislation itself, but categories of person can be included, or excluded, by the Secretary of State making regulations.

The First Secretary of State is considering the court's declaration and we will write to the Committee again when he has decided his response.

27 October 2005

2. LETTER FROM ALAN EDWARDS, HOMELESSNESS AND HOUSING SUPPORT, OFFICE OF THE DEPUTY PRIME MINISTER DATED 2 MARCH 2006 RE DECLARATION BY THE COURT OF APPEAL THAT SECTION 185(4) OF THE HOUSING ACT 1996 IS INCOMPATIBLE WITH ARTICLE 14 ECHR

Phil Woolas' letter of 27 October 2005 informed the Committee that a declaration of incompatibility had been made by the Court of Appeal, in the case of R (on the application of Sylviane Pierrette Morris) v Westminster City Council [2005] EWHC 1184 (CA).

This letter is to inform the Committee that the First Secretary of State has decided not to appeal against the decision of the Court of Appeal. The First Secretary of State is currently considering how to remedy the incompatibility, and will write to the Committee again as soon as he has reached a decision on this matter.

Should the Committee require any further information, please do not hesitate to contact me.

3 March 2006

3. LETTER FROM ALAN EDWARDS, HOMELESSNESS AND HOUSING SUPPORT, OFFICE OF THE DEPUTY PRIME MINISTER DATED 20 APRIL 2006 RE DECLARATION BY THE COURT OF APPEAL THAT SECTION 185(4) OF THE HOUSING ACT 1996 IS INCOMPATIBLE WITH ARTICLE 14 ECHR

Further to my letter of 3 March 2006 concerning a declaration of incompatibility made by the Court of Appeal, in the case of R (on the application of Sylviane Pierrette Morris) v Westminster City Council, this letter is to inform the Committee that a further declaration of incompatibility has been made regarding section 185(4) of the Housing Act 1985.

On 28 March, in the case of The Queen (on the application of) Gabaj and the First Secretary of State, CO 7458/2005, the High Court made a declaration that section 185(4) Housing Act 1996 is incompatible with article 14 European Convention on Human Rights to the extent that it requires a pregnant member of the household of a British citizen, if both are habitually resident in the United Kingdom, to be disregarded when determining whether the British citizen has a priority need for accommodation when the pregnant member of the household is a person from abroad who is ineligible for housing assistance.

The declaration was made at the request of the Claimant and the second Defendant. Section 185(4) is a provision of the homelessness legislation that prohibits a housing authority from taking account of a person from abroad who is ineligible for assistance when deciding whether another person (i.e. a homeless applicant) is homeless or has a priority need for accommodation.

The First Secretary of State is currently considering how to remedy the incompatibility of the provision with Article 14, and will write to the Committee again as soon as he has reached a decision on this matter.

Should the Committee require any further information, please do not hesitate to contact me.

20 April 2006

4. LETTER FROM YVETTE COOPER MP, MINISTER FOR HOUSING AND PLANNING, DEPARTMENT FOR COMMUNITIES AND LOCAL GOVERNMENT DATED 27 JUNE 2006 RE SECTION 185(4) OF THE HOUSING ACT 1996: DECLARATIONS OF INCOMPATIBILITY IN MORRIS V WESTMINSTER & GABAJ V BRISTOL

Alan Edwards of this Department (then the Office of the Deputy Prime Minister) wrote to you on 3 March to advise that the First Secretary of State had decided not to appeal against the declaration of incompatibility made by the Court of Appeal on 14 October 2005 in the case of Sylviane Pierrette Morris v Westminster City Council [2005] EWHC 1184 (CA). The declaration concerned section 185(4) of the Housing Act 1996.

He also wrote, on 20 April, to advise you of a further declaration in respect of section 185(4), made by the High Court on 28 March in the case of The Queen (on the application of) Gabaj and the First Secretary of State, CO 7458/2005.

I am writing to advise you that the Government has given this matter careful consideration but the Secretary of State has not yet come to a decision whether to repeal or amend section 185(4). This matter raises some important policy issues and consequently further consideration and consultation with other Government departments will be necessary before a final decision can be made. However, I should like to assure the Committee that the Government intends to remedy the incompatibility as quickly as possible.

I will write to the Committee as soon as a decision is made.

27 June 2006

5. LETTER FROM HOUSING LAW PRACTITIONERS' ASSOCIATION DATED 29 JUNE 2006 RE MORRIS V FIRST SECRETARY OF STATE V WESTMINSTER CITY COUNCIL [2005]

I am writing to you on behalf of members of the Housing Law Practitioners Association (HLPA) about the case Morris v Westminster CA 2005, EWCA Civ 1184, which declared s185 (4) of the Housing Act 1996 incompatible with Article 14 of the European Convention on Human Rights.

HLPA is an organisation of solicitors, barristers, advice workers, independent environmental health officers and others who work in the field of housing law. Members work in housing law for the benefit of homeless people, tenants and other occupiers of housing.

The Court of Appeal declared s 185(4) of the Housing Act 1996 incompatible with Article 14 of the ECHR to the extent that it requires a dependant child of a British citizen, the child being subject to immigration control, to be disregarded when determining whether the British citizen has a priority need for accommodation under s 189(l)(b) of the Act.

The declaration of incompatibility leaves the offending legislation in force s 3(2) of the 1998 Act and local housing authorities obliged to comply with it. HLPA has conducted a survey amongst its members, which shows that the factual situation that led to the declaration regularly occurs. Therefore without legislation or a remedial action decisions contrary to the Convention will continue to be made. The result is that those who should be entitled to accommodation under the Housing Act are being denied it.

I understand that the Government wrote to the Joint Committee on Human Rights (JCHR) on 3 March 2006 to inform the committee that they will not be appealing against the Court of Appeal decision and that the matter is currently under consideration. If the JCHR should require further assistance, HLPA would welcome the opportunity to provide you with evidence about the impact of the factual situation that regularly occurs including the impact on families and children and explain why some form of legislation or a remedial action needs to be made a priority.

29 June 2006


 
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