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Al-Ameri (FC)(Respondent) v. Royal Borough of Kensington and Chelsea (Appellants) Osmani (FC) (Respondent) v. London Borough of Harrow (Appellants)(Conjoined Appeals)
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OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Al-Ameri (FC) (Respondent) v. Royal Borough of Kensington and Chelsea (Appellants) Osmani (FC) (Respondent) v. London Borough of Harrow (Appellants) (Conjoined Appeals) ON THURSDAY 5 FEBRUARY 2004 The Appellate Committee comprised: Lord Bingham of Cornhill Lord Hope of Craighead Lord Scott of Foscote Lord Walker of Gestingthorpe HOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSEAl-Ameri (FC) (Respondent) v. Royal Borough of Kensington and Chelsea (Appellants)Osmani (FC) (Respondent) v. London Borough of Harrow (Appellants)(Conjoined Appeals)[2004] UKHL 4LORD BINGHAM OF CORNHILL My Lords, 1. The issue raised in these appeals was succinctly expressed by Simon Brown LJ in the opening sentence of his leading judgment in the Court of Appeal ([2003] EWCA Civ 235, [2003] 1 WLR 1289, 1291):
2. It is common ground that the respondents to these appeals (Mr Al-Ameri and Mrs Osmani, both of them former asylum seekers) were, in March 2002 and November 2001 respectively, entitled to be provided with accommodation for occupation by them and members of their families under the Housing Act 1996. The question is whether the duty to secure provision of such accommodation may have lain on the intervener (the Glasgow City Council) or whether it lay on the appellants (the Royal Borough of Kensington and Chelsea and the London Borough of Harrow) respectively. The answer turns on whether the respondents' residence in Glasgow as asylum seekers under the Immigration and Asylum Act 1999, pending determination of their applications for asylum, may have given rise to a local connection between the respondents and the Glasgow City Council in its capacity as the housing authority for the district in which the respondents, as asylum seekers, were resident. That in turn depends on whether, within the meaning of section 199(1)(a) of the Housing Act 1996, such residence was of the respondents' own choice. 3. The issue thus arises at the confluence of two streams of legislation, the general homelessness provisions under Part VII of the 1996 Act and the provisions governing support for asylum seekers in Part VI of the 1999 Act. If the respondents' residence in Glasgow pending determination of their asylum claims cannot in law have given rise to a local connection between the respondents and the district of the Glasgow City Council, then it was the duty of the appellant authorities respectively to secure that accommodation was available for occupation by the respondents. If that residence may in law have given rise to such a local connection, further enquiry into the facts will be necessary hereafter to decide whether, in these particular cases, such a local connection was established or not. While the respondents are parties to this litigation and not dispassionate onlookers, there are echoes of the old Poor Laws, under which parishes contended that paupers were settled in a parish other than their own (see Holdsworth, A History of English Law, vol x, p 257 et passim). 4. The central provision of the 1996 Act is section 193, which applies (subsection (1))
The authority must then (subsection (2)) "secure that accommodation is available for occupation by the applicant". But this duty imposed on the local housing authority is subject to an important qualification: "Unless the authority refer the application [for accommodation] to another local housing authority (see section 198), …". 5. So far as relevant to this appeal, section 198 provides: "Referral of case to another local housing authority
6. The meaning of the expression "local connection" used in section 198(2)(a) and (b) is elaborated in section 199:
The substance of what is now section 199, including what are now subsections (1), (2) and (3), was first enacted in section 18 of the Housing (Homeless Persons) Act 1977. 7. Section 202(1)(c) gives an applicant for accommodation the right to request a review of any decision of a local housing authority to notify another authority under section 198(1). If the applicant is dissatisfied with the outcome of a review or is not notified of the decision within a prescribed period, an appeal lies to the county court on any point of law arising from the decision under section 204. 8. Section 185 provides that persons subject to immigration control within the meaning of the Asylum and Immigration Act 1996 should not, generally, be eligible for housing assistance, and section 186 as originally enacted limited the rights of asylum seekers. 9. The exclusion of asylum seekers from entitlement to claim a range of social security benefits (including housing benefit) and accommodation under section 21 of the National Assistance Act 1948 was made plain by sections 115 and 116 of the 1999 Act which generally applied to persons subject to immigration control, including those who (like asylum seekers) required leave to enter or remain in the United Kingdom but did not have it. Their entitlement to support (if any) was to be governed by Part VI of the 1999 Act, entitled "Support for Asylum-Seekers", who are defined in section 94(1) to mean persons not under 18 who had made a claim for asylum which had been recorded by the Secretary of State but which had not been determined. 10. Section 95(1) of the 1999 Act empowers the Secretary of State to provide, or arrange for the provision of, support for "
Subsection (3) provides two possible grounds on which, for purposes of the section, a person may be destitute, namely if
If the asylum seeker has dependants, subsection (3) is to be read as if the references to him are references to him and his dependants taken together. Subsections (5) and (6) are directed to the Secretary of State's determination whether an asylum seeker's accommodation is adequate: to some matters set out in (6) the Secretary of State is not to have regard; matters may be prescribed to which he is to have regard. Matters may be prescribed to which the Secretary of State should and should not have regard in determining for purposes of the section whether an asylum seeker's essential living needs are met: subsection (7). Support may (subsection (9)) be provided subject to conditions. 11. Under section 96, support may be provided under section 95
Section 97(1) and (2) provide as follows:
The right of appeal conferred on an asylum seeker by section 103 of the Act does not entitle him to complain of the place where accommodation is offered. 12. Reference should finally be made to subsections (1)-(4) of section 122, which provide:
13. Mrs Osmani, the second-named respondent, is an Afghani who arrived in the United Kingdom with her two young sons on 6 December 2000 and sought asylum. On 15 February 2001 the National Asylum Support Service ("NASS"), an agency established to discharge some of the functions of the Secretary of State, accepted her application for accommodation and subsistence. She was informed in writing that accommodation, provided by the Glasgow City Council, had been reserved for her at a specified Glasgow address. The written notification made plain that if this offer were not accepted, no alternative would be offered; that vouchers to meet living expenses would be provided in Glasgow; and that if she failed to travel to Glasgow on the day stated or failed to comply with any provision in a form of agreement enclosed with the notification any support by NASS might be withdrawn. When she received that notification Mrs Osmani was in London. She and her children travelled to Glasgow and lived in the accommodation offered. By a letter dated 3 May 2001 she was notified that she had been granted indefinite leave to remain and would no longer be entitled to NASS support after 14 days. After a period of delay treated by both sides as irrelevant to the legal issue in this appeal, Mrs Osmani travelled to London, stayed with her brother in Harrow and applied to the London Borough of Harrow for accommodation as a homeless person. The authority accepted that a full housing duty was owed to her under section 193 of the Housing Act 1996 but concluded that while she did not have a local connection with Harrow she did have a local connection with Glasgow, and so the authority decided to refer her application to the Glasgow City Council. That authority promptly refused the reference and Mrs Osmani requested a review of the decision to refer. On review the decision was upheld. Mrs Osmani appealed to the county court where Her Honour Judge Dangor, in a careful and thorough judgment, concluded that Mrs Osmani's residence in Glasgow was capable of giving rise to a local connection with Glasgow under section 199(1)(a) of the 1996 Act. 14. Mr Al-Ameri, the first-named respondent, is an Iraqi national who arrived in the United Kingdom with his wife and two young daughters in May 2001. He claimed asylum. He was informed that all asylum seekers would be distributed throughout the country on a non-voluntary basis and only in exceptional circumstances would anyone be allowed to stay in London. In May 2001 Mr Al-Ameri was notified that he qualified for accommodation and essential living needs support under section 95 of the 1999 Act. He was to travel to Glasgow where accommodation and living needs support would be provided on a no-choice basis. If he did not accept the offer he should not expect an alternative offer. Failure to travel when required could lead to suspension or discontinuance of support. Mr Al-Ameri and his family travelled to Glasgow in May 2001 and occupied accommodation provided by the City Council. In June 2001 Mr Al-Ameri was granted exceptional leave to remain. After a period of delay treated by both sides as irrelevant to the legal issue in this appeal, he travelled to London and applied to the Royal Borough of Kensington and Chelsea for accommodation as a homeless person under section 193 of the 1996 Act. The authority reached the same conclusion on the full housing duty and on local connection as had been reached by the London Borough of Harrow in Mrs Osmani's case. It decided, as Harrow had done, to refer the application to the Glasgow City Council, which refused to accept the referral. Mr Al-Ameri sought a review of the decision to refer, but without success. He appealed to the county court, where his appeal was heard before Mrs Osmani's. But the result was the same: His Honour Judge Reynolds gave a lucid judgment dismissing the appeal. 15. Both Mrs Osmani and Mr Al-Ameri appealed against the county court judgments and the Court of Appeal (Simon Brown, Buxton and Carnwath LJJ) heard the appeals together. The appeals were allowed by a majority, Buxton LJ reluctantly dissenting: [2003] 1 WLR 1289. The Court of Appeal granted leave to appeal against its decision. Construction 16. It was common ground in argument before the House that the respondents had been "normally resident" in the district of the Glasgow City Council as local housing authority during their residence in Glasgow as asylum seekers. Thus the first condition of establishing a local connection under section 199(1)(a) of the 1996 Act was satisfied. The crucial issue dividing the parties was whether such residence had been of the respondents' own choice, an issue turning on the construction of these words in the context of this Act. For the appellant local authorities it was argued that the residence had been of the respondents' own choice. They had had the choice of accepting the offer of accommodation (and living needs support) in Glasgow or not accepting it. That was not the less a choice because the alternative to accepting it was continuing destitution, subject to any possible provision for the children under section 122. The respondents lived in Glasgow as the result of a conscious and intentional decision to do so. Reliance was placed on Buxton LJ's conclusion in para 66 of his judgment:
The respondents (supported by the intervener) contended that the relevant choice for the purpose of section 199(1)(a), read as a whole and in context, was the choice a person has made or not made to reside in a particular area. Thus the relevant enquiry of each respondent was "Did you choose to live in Glasgow?", to which the answer could only be "No". 17. This issue of construction, like many such issues, bears little elaboration. Section 199(1) describes a number of ways in which a local connection may be established between a person and the district of a local housing authority. Under subsection (1)(a) a period of normal residence is necessary. But such residence must be of the resident's own choice. So the question to be asked of each respondent is "Did you reside in Glasgow of your own choice?". To that question there can be, in the case of each respondent, only one possible answer: "No. I was given no choice about where I resided. I resided in Glasgow because, and only because, that was the only place where I was offered accommodation and the means to meet the most basic of human needs". To the extent that historical or fictional analogies assist, the same result follows. If a customer of Hobson had been asked whether he was riding a horse of his own choice, he would have been bound to reply that he had had no choice, it was that horse or none, he took what he was given. It would be wholly unrealistic to suggest that a child selected by Sophie for the gas chamber had died of Sophie's own choice. 18. If there were room for doubt about the correctness of this construction, consideration of the wider context would resolve it. The object of the NASS scheme introduced under the 1999 Act was to relieve pressure on local housing authorities in London and the South East of England by dispersing asylum seekers, while awaiting determination of their asylum claims, in other parts of the United Kingdom, particularly those parts where accommodation was more readily available. It was always seen as a cardinal feature of the scheme that asylum seekers in need of accommodation should go where they were sent. Thus the White Paper "Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum" (Cm 4018, July 1998) stated, in paragraph 8.22:
Thus the asylum seeker was to have no choice, and section 97(2)(a) of the 1999 Act expressly enjoined the Secretary of State to have no regard to any preference that the asylum seeker or his dependants might have as to the locality in which accommodation was to be provided. 19. Reliance was placed on section 199(3) of the 1996 Act as showing that residence in a district might be of a person's own choice even if directed: otherwise it would not have been necessary to exclude that possibility in the case of service personnel and detainees. It is of course true that service personnel and detainees normally exercise no choice about where they live. But service personnel may live in a particular place because they have applied to attend a course conducted in that place; and prisoners or mental patients may have asked to be confined in a particular place in order, for example, to be near their families. The purpose of section 199(3) is, in my opinion, to preclude the need for any enquiry in such a case. If it were otherwise, the burden on local housing authorities with large military bases, prisons or mental hospitals within their districts could be significant. 20. It was pointed out that the Secretary of State has not exercised his power under section 199(5) of the 1996 Act to specify by order that residence in a district by an asylum seeker under the NASS dispersal scheme should not be treated as of the asylum seeker's own choice. It is true that he has not, and this would be significant if the compelling inference were that he had not done so because it was envisaged that such residence were or might be of the asylum seeker's own choice. But the Secretary of State's understanding cannot control the construction of section 199(1)(a) which is in my opinion, with respect to those who have concluded otherwise, clear. And it is quite as likely that the Secretary of State regarded an asylum seeker's residence under the NASS dispersal scheme as obviously not in a district of the asylum seeker's own choice, or that he failed to address the question at all. Authority 21. The appellant local authorities relied on three authorities in particular to support their argument. The first of these was Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653. That case, concerned with the availability of duress as a defence to a defendant charged with aiding and abetting murder, arose in a field far removed from the present. The case was relied on for observations by Lord Morris of Borth-y-Gest (pp 671-672), Lord Wilberforce (pp 679-680), Lord Simon of Glaisdale (p 689), Lord Kilbrandon (p 703) and Lord Edmund-Davies (pp 709-710) as showing that even a person who acts in a certain way when threatened by death exercises a choice (he may refuse to act and suffer the consequence) and acts intentionally and voluntarily even if compelled. But the House in that case was considering a different question. It may be accepted that a person faces a "terrible agonising choice of evils" if, to take Lord Morris' example, he "is required under such duress to drive a car to a place or to carry a gun to a place with knowledge that at such place it is planned that X is to be killed by those who are imposing their will" (p 671). But if it were asked whether such person drove the car or carried the gun of his own choice, the answer could only be negative. 22. In R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309 the House was called upon to construe the expression "ordinarily resident" in the Education Acts of 1962 and 1980. In doing so, Lord Scarman (with the concurrence of the other members of the Committee) applied long-standing authority on the meaning of the expression. That authority was relied on for two passages in Lord Scarman's opinion. The first was on p 344:
The second was on p 349:
23. I would not wish to throw any doubt on the correctness of that reasoning as applied in that case. But the draftsman of section 18 of the 1977 Act (now section 199 of the 1996 Act) used the expression "normally resident", and not the expression "ordinarily resident" which bore an established legal meaning. Had he regarded normal residence as itself including a requirement of choice, it would not have been necessary to provide "and that residence is or was of his own choice". Nothing in Nilish Shah throws doubt on the construction of section 199(1)(a). 24. The subject matter of Mohamed v Hammersmith and Fulham London Borough Council [2001] UKHL 57, [2002 1 AC 547 was closer, although neither the applicant (Mr Mohamed) nor his wife were asylum seekers. The wife came to England in 1994 and lived for most of the time in flats in Ealing until in January 1998 she moved to live with a friend in Hammersmith. The husband came to England in January 1998 and lived with a (different) friend in Hammersmith. In April 1998 they jointly asked the London Borough of Hammersmith and Fulham for accommodation, and were given temporary accommodation in the authority's district, first in a hotel and then in a flat, presumably under section 188 of the 1996 Act. They then applied for accommodation under section 193. In July 1998 the authority told the wife that they accepted a duty to arrange accommodation for her but that, although she had a local connection with Ealing where she had lived, she had no connection with Hammersmith, so the applications of both husband and wife were referred to Ealing on the basis that they appeared to have a local connection with Ealing but not with Hammersmith. The decision to refer was upheld on review and in the county court on the basis that the husband's residence in Hammersmith was not such as could amount to normal residence for the purpose of section 199(1)(a) of the 1996 Act. Hammersmith argued (see para 17) that the occupation of interim accommodation pending a decision on the husband's application under section 193 could not amount to normal residence. This argument was rejected by the Court of Appeal and the House. In the course of his opinion (with which the other members of the Committee agreed) Lord Slynn of Hadley referred to the notion of voluntariness, held in Nilish Shah to be an ingredient of ordinary residence, and pointed out that the Secretary of State had not exercised his power under section 199(5) to provide that residence in interim accommodation should not be treated as residence in a district of a person's own choice (paras 17-19). There was however no argument whether Mr Mohamed's residence in Hammersmith had been of his own choice, since for the first three months he had lived there of his own free will entirely and from April to July he had occupied accommodation in Hammersmith as a direct result of his and his wife's application to do so. I do not consider that this authority throws any light on the present problem. |
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