Judgments - 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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    Conclusion

    25.  In agreement with the majority of the Court of Appeal and with my noble and learned friend Lord Hope of Craighead, and for the same reasons, I would give a negative answer to the question posed at the outset of this opinion and dismiss the appeals. The appellant authorities must pay the respondents' costs before the House. The intervener must bear its own costs.

LORD HOPE OF CRAGHEAD

My Lords,

    26.  The respondents, who now have been given leave to remain in this country, were both formerly asylum-seekers within the meaning which is given to that expression by section 94(1) of the Immigration and Asylum Act 1999 ("the 1999 Act"). While they were seeking asylum they and their dependants were provided with support by the Secretary of State under section 95 of that Act because it appeared to him that they were or were likely to become destitute. Section 96 provides that the ways in which support may be provided for a destitute asylum-seeker under section 95 include the provision of accommodation pending determination of his claim.

    27.  Section 97 of the 1999 Act provides:

    "(1) When exercising his power under section 95 to provide accommodation, the Secretary of State must have regard to -

    (a)  the fact that the accommodation is to be temporary pending determination of the asylum-seeker's claim;

    (b)  the desirability in general of providing accommodation in areas in which there is a ready supply of accommodation; and

    (c)  such other matters (if any) as may be prescribed.

    (2) But he may not have regard to -

    (a)  any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided; or

    (b)  such matters (if any) as may be prescribed."

    28.  The system of support under section 95 is operated on behalf of the Secretary of State by the National Asylum Support Service ("NASS"). An important feature of the scheme for the provision of accommodation which NASS operates is the dispersal of asylum-seekers throughout Great Britain. The object of this system is to relieve the pressure that would otherwise bear on local housing authorities in London and the South East, as this is where by far the greatest number of asylum-seekers enter the United Kingdom. Section 99 of the 1999 Act provides that a local authority may provide support for asylum-seekers in accordance with arrangements made by the Secretary of State under section 95. Local authorities are encouraged to enter into these arrangements. Section 99(4) allows them to incur expenditure in connection with the preparation of proposals for doing so. The local authorities with which arrangements have been made under this section include Glasgow City Council. Dispersal under this system is organised by NASS according to the availability of accommodation from time to time in the dispersal areas. The efficiency of its operation is assisted by the provision in section 97(2)(a) that any preference which the asylum-seeker may have as to where he is to be accommodated must be disregarded.

    29.  The respondents were told by NASS that they were to travel to Glasgow, as it was there that support would be provided to them. Accommodation was found for them there in premises belonging to Glasgow City Council, which is the local housing authority. The accommodation which was provided for them under the scheme was, of course, temporary. It was never the intention under the dispersal scheme that this accommodation should be permanent. This is because the support provided to a destitute asylum-seeker under section 95 ceases when his claim for asylum is determined. When this happens, he is no longer an asylum-seeker within the meaning of section 94(1).

    30.  The effect of the dispersal scheme, according to the latest statistics that were shown to your Lordships, has been that about 94 per cent of the asylum-seekers housed by NASS are now being accommodated outside Greater London: Home Office Asylum Statistics, 3rd Quarter 2003, p 7. The scheme appears to be achieving its aim of relieving the pressure which would otherwise have fallen on the Greater London housing authorities to make accommodation available to asylum-seekers. But its success has given rise to another problem which lies outside the scope of the dispersal scheme. This is the problem which emerges if the asylum-seeker's claim is determined in his favour and he is given leave to remain in this country.

    31.  An asylum-seeker who is given leave to remain in the United Kingdom is no longer entitled to the provision of temporary accommodation under section 95 of the 1999 Act. But if he is homeless within the meaning of section 175(1) of the Housing Act 1996 ("the 1996 Act") or, if he is in Scotland, of section 24(1) of the Housing (Scotland) Act 1987 ("the 1987 Act") he will have a priority need for the provision of housing by the local housing authority. He may apply to the authority for the provision of accommodation under the provisions of Part VII of the 1996 Act and Part II of the 1987 Act that deal with homelessness and threatened homelessness. The authority is under a duty to secure that accommodation becomes available for the applicant's occupation if it is satisfied that he is homeless: section 193(2) of the 1996 Act and section 31(2) of the 1987 Act.

    32.  There is another aspect of the dispersal scheme that must be noted at this stage. The conditions that are attached to the support which is given to the destitute asylum-seeker under section 95 of the 1999 Act fly off as soon as his status as an asylum-seeker terminates. A person who is given leave to remain in the United Kingdom is no longer an asylum-seeker. He is not obliged to remain in the locality where he was accommodated under the dispersal scheme. He is free to seek accommodation wherever he likes. If he is homeless, he can apply under the Housing Acts to the local housing authority of the area where he happens to be for the time being.

    33.  People who are in this category tend to return to London or the South East in search of employment or because they have relatives there. This has given rise to the same concern about pressure on the local authorities in this area which the dispersal policy was designed to remove in the case of destitute asylum-seekers. These pressures affect not only the provision of housing. They have implications too for other services, such as education, for the provision of which the local authorities are responsible. And they are of greater concern to the local authorities at this stage because if they have to assume responsibility for their accommodation its provision will no longer be temporary. It will have to be dealt with as a priority need under the statute, and it will be permanent. The financial implications for whichever local authority has to bear this burden are considerable.

    34.  Glasgow City Council was given leave to intervene in this case. It has been made clear on its behalf that it willingly accepts that, if a successful asylum-seeker housed with it under the dispersal programme applies to it for housing after the determination of the asylum claim, it will owe him a duty to provide accommodation under the 1987 Act because he will have no local connection anywhere else. But it does not accept the contention of the London local authorities that it should owe that duty regardless of the wishes of the former asylum-seeker as to where he is to live. And it does not accept that this is the result of the scheme which the statutes have laid down for the allocation of responsibility between local housing authorities.

    35.  The problem as to how to allocate this responsibility between the authorities is not new. It was the subject of two departmental circulars in 1974 (Circular 18/74 issued by the Department of the Environment and Circular 4/74 issued by the Department of Health and Social Security) and of a further circular in 1975 (Circular 54/75 issued by the Department of the Environment). But experience had shown that the advice which they contained needed to be given statutory authority. The vehicle that was chosen for this was a Private Members' Bill which became the Housing (Homeless Persons) Act 1977 ("the 1977 Act"), from which the provisions of Part VII of the 1996 Act are derived. Section 198(1) of the 1996 Act enables a housing authority which would otherwise be subject to the duty under section 193 to provide accommodation to a person who is homeless, if it considers that the conditions for referral are met, to refer his case to another authority. An equivalent provision for Scotland is to be found in section 33(1) of the 1987 Act. This section enables a local authority in Scotland, if corresponding conditions are met, to refer a homeless person's application to another local authority in Scotland, England or Wales. It is the jurisdiction within which the area of the housing authority which has the primary responsibility lies that determines whether the Scottish legislation or that for England and Wales is applicable. The primary responsibility in the cases with which these appeals are concerned falls on the London local authorities, because it was to them that the applications were made. So the relevant legislation for the purpose of these appeals is that which is to be found in the 1996 Act.

    36.  Section 198(2) of the 1996 Act provides that the conditions for the referral of the case to another authority are met if, among other things:

    "(a) neither the applicant nor a person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made,

    (b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority."

The meaning which is to be given in this context to the phrase "a local connection" is to be found in section 199. Section 199(1) provides that a person has a local connection with the district of a local housing authority if he has a connection with it, among other things -

    "(a) because he is, or in the past was, normally resident there, and that residence is or was of his own choice."

The other grounds of connection mentioned in this subsection are employment there, family associations and special circumstances. The ground of local connection relied on by the London local authorities is residence. It is the phrase "of his own choice" in section 199(1)(a) that lies at the heart of the dispute.

    37.  In R v Eastleigh Borough Council, Ex p Betts [1983] 2 AC 613 the question was whether the respondents had a "local connection" with the appellants' area within the meaning of section 18(1)(a) of the 1977 Act for the purposes of section 5(1) of that Act. These are the sections from which sections 199(1)(a) and 198(2) of the 1996 Act respectively are derived. Lord Brightman said at p 626 that "local connection" was not a defined expression, the effect of which was to entitle the reader to construe it by substituting "is or was normally resident in," or "is employed in," or "has family associations with" for the words "has a local connection with". What section 18(1) did was to specify those factors alone upon which a local connection could be founded. The fundamental question was the existence of a local connection.

    38.  Lord Brightman added these comments at p 627:

    "In construing section 5 it is only to be expected that the emphasis falls on 'local connection', and not on past or present residence or current employment, etc. The Act is one which enables a homeless person in certain circumstances to jump over the heads of all other persons on a housing authority's waiting list, to jump the queue. One would not expect any just legislation to permit this to be done unless the applicant has in a real sense a local connection with the area in question. I accept that 'residence' may be changed in a day, and that in appropriate circumstances a singe day's residence may be enough to enable a person to say that he was normally resident in the area in which he arrived only yesterday. But 'local connection' means far more than that. It must be built up and established; by a period of residence; or by a period of employment; or by family associations which have endured in the area; or by other special circumstances which spell out a local connection in real terms."

    39.  The case for the London local authorities is that the question whether a person has formed a local connection with a district on the basis of residence is one of fact, and that a person can form such a connection provided his act in moving to the district was voluntary or at least that he was content to remain there. They submit that it is legitimate to ask whether, while his claim for asylum was being determined, the destitute asylum-seeker has put down roots in the district where he was being accommodated. If there was evidence that this is so, and it was clear that his residence in the district was voluntary, it ought to be open to the local housing authority to consider whether a local connection had been established there. The view of the majority in the Court of Appeal was that residence in NASS accommodation was never to be regarded as residence of the applicant's own choice: [2003] 1 WLR 1289, 1305, para 50 per Simon Brown LJ. But that went too far. It was wrong to say that this could never happen. The asylum-seeker always had a choice. He could take the accommodation that was offered to him and agree to remain where he was put. Or he could refuse the offer of support and accept the consequences. That was a matter for him. It was enough for the facts to be opened up for inquiry as to whether a local connection had been established that he was offered the accommodation and that he accepted it.

    40.  It is, of course, right to say that the question whether a local connection has been established is ultimately one of fact. But the question whether the facts that are relied on to show that the asylum-seeker was normally resident in the district of his own choice are capable of satisfying this requirement is one of law. Facts that are incapable of satisfying it must be disregarded as irrelevant.

    41.  It is accepted for the purpose of these appeals that the respondents were in the past normally resident in Glasgow. But section 199(1)(a) makes it clear that normal residence in the district on its own is not enough. Normal residence in the district is irrelevant unless, as section 199(1)(a) provides, "that residence is or was of his own choice". It is the fact that the person resided there of his own choice that gives his normal residence in the district the character that it needs for a local connection with the district to be demonstrated. Each of the words in the phrase which I have quoted plays an important part in the analysis. It is not enough to show that the person was content to reside there, or that he went there voluntarily. Nor is it enough to show that he had a choice between going to the place chosen for him by NASS and staying where he was when the offer was made. The statutory language does not permit that approach. What it requires is that he chose to live in that particular district. The choice to live in that particular district must have been his own choice, and not one that was dictated to him by the choice of someone else.

    42.  It is clear beyond any doubt that the destitute asylum-seeker has no choice as to the locality in which support under section 95 of the 1999 Act is to be provided to him. The law and the practice are at one on this point. Section 97(2) requires the Secretary of State to disregard any preference that the supported person and his dependants may have about this. He may make it clear that he wants to remain in London, or he may make it clear that he wants to go to Glasgow. But, whatever his preference may be, it is to be disregarded. So far as the statute is concerned, the choice lies with the Secretary of State and with him alone. The approach which the statute takes is consistent with the White Paper which preceded it, "Fairer, Faster and Firmer: A Modern Approach to Immigration and Asylum" (Cm 4018) (July 1998). In para 8.21 of the White Paper it was stated that accommodation was to be provided on a no choice basis. In para 8.22 it was stated that asylum-seekers would be expected to take what was available, and that they would not be able to pick and choose where they were accommodated.

    43.  In practice the choice is made by the case workers of NASS, having regard to arrangements made with local authorities under section 99 of the 1999 Act. The documents provided to the asylum-seeker make it clear that the offer of accommodation is made to him on the condition that he travels to the place that has been chosen for him by the case worker. The offer of support under section 95 comes to him as a package. It is available to him only in the dispersal area to which he is being sent. If he does not travel to that area, it will not be available to him. There is no right of appeal against the decision of the case worker, as section 103(7) which provides for appeals against location has not yet been brought into force.

    44.  I do not see how it is possible in these circumstances to say that the choice which led to the asylum-seeker's residence in the dispersal area was "his own" choice. This is not something that varies from case to case. All destitute asylum-seekers are treated in the same way by the scheme which NASS administers. They have a choice as to whether or not to accept the support that is offered to them, with the conditions that are attached to it. But that is all. All the other choices are made for them by the case worker. If they accept what is on offer, they go to the place where they are accommodated because they have been told to go there. So it can never be said, however content they may be thereafter to remain there, that "that residence" was of "their own" choice.

    45.  Those who were responsible for taking the Bill through Parliament were aware that difficulties could arise between the local authority of the area where the person became homeless and the local authority of the area with which he had a prior connection. It became clear that the tests for showing that there was a local connection could give rise to practical problems in some cases. The way this was dealt with has been reproduced in the 1999 Act. Section 199(3) provides that residence in a district is not of a person's own choice if he becomes resident there because he, or a person who might reasonably be expected to reside with him, is serving in the regular armed forces of the Crown or is detained under the authority of an Act of Parliament. Section 199(5) provides that the Secretary of State may by order specify other circumstances in which residence in a district is not to be treated as of a person's own choice. He has not done so in the case of destitute asylum-seekers. But section 199(3) does not say that the categories which it mentions are exclusive. The tests which are to be applied in order to show that there is a local connection are those set out in section 199(1).

    46.  As the commentary on section 18 of the 1977 Act in Current Law Statutes Annotated 1977 points out, the reference to the armed forces was put into the Act largely as the result of a speech during the consideration of the standing committee's amendments by Mr P Viggers MP, who was the Member of Parliament for Gosport: (Hansard (HC Debates), 8 July 1977, vol 934, cols 1696-1700). He drew attention to the fact that some 3,500 families left Portsmouth Home Command each year. A large number of local authorities were ignoring ministerial advice that sympathetic consideration should be given to their claim to be accommodated in the localities in which they lived before joining the forces. He said that it was unreasonable that Gosport should shoulder the burden of looking after all these families who might be homeless. The opportunity was taken to deal also with persons who happened to be resident in an area because they were being detained there. But it should be noted that these cases were not free from difficulty. It is possible to envisage circumstances in which it might be argued that persons mentioned in section 199(3) were resident in those districts of their own choice - because they had asked to be posted to Gosport, for example, or had asked to be moved to a different prison. The effect of the subsection is to eliminate the possibility of such an inquiry in those cases.

    47.  That possibility is absent, however, in the case of the destitute asylum-seeker. He has no choice as to the locality in which support is to be provided to him while he remains an asylum-seeker. Any preference which he may express to be accommodated in a particular district must be disregarded. So his case does not need to be provided for expressly by the statute. The system is such that in no case can it be said that a destitute asylum-seeker has a local connection with the district where he is accommodated on the ground that he is, or was, normally resident there. It may be possible to show, on the facts, that he has a local connection on one of the other grounds mentioned in section 199(1). But it will never be possible to do so on the ground of normal residence.

    48.  For these reasons, and those given by my noble and learned friend Lord Bingham of Cornhill whose speech I have had the advantage of reading in draft and with which I agree, I too would dismiss these appeals.

LORD SCOTT OF FOSCOTE

My Lords,

    49.  The issue in these two appeals is whether the respondents, Mr Al-Ameri and Mrs Osmani, were resident in Glasgow of their "own choice". Each of them arrived in this country as an asylum seeker. Mr Al-Ameri was accompanied by his wife and two children. Mrs Osmani was accompanied by her two young sons. Each, after arrival, applied to the National Asylum Support Service ('NASS') for accommodation and subsistence while their respective asylum applications were being considered. Each would have preferred accommodation in London or the South-East but each was offered accommodation in Glasgow. Each was informed by letter that if the offer of accommodation in Glasgow were not accepted, no alternative offer would be made. Each was warned, also, that if the offer of accommodation in Glasgow were not accepted all NASS support might be withdrawn.

    50.  In the circumstances it is hardly surprising that the offers of Glasgow accommodation were taken up. The asylum seekers, with their families, travelled to Glasgow, by means of travel vouchers provided by NASS, and went into occupation of the accommodation in Glasgow that they had been allocated. The subsistence support from NASS was provided to them in Glasgow.

    51.  Mr Al-Ameri and family arrived in Glasgow on 23 May 2001. On 26 June 2001 Mr Al-Ameri's application for asylum as a Geneva Convention refugee was refused but nevertheless he was granted exceptional leave to enter the United Kingdom. As from that date he was no longer an asylum seeker and no longer entitled to be provided with accommodation and subsistence by NASS. He was entitled to remain in the United Kingdom, to live wherever he chose, to seek work and to claim social security benefits and housing accommodation under the respective statutory schemes applicable to those benefits. The relevant papers establishing his right to work were not, however, sent to him until February 2002. On 6 March 2002, some eight months after he had been given exceptional leave to remain, Mr Al-Ameri gave up his occupation of the Glasgow accommodation that had been provided to him by NASS and took his family to London. He applied to the Royal Borough of Kensington and Chelsea for housing accommodation as a homeless person pursuant to section 193 of the Housing Act 1996. The Royal Borough accepted that he was homeless and was not intentionally homeless. But they took the view that because of his residence in Glasgow he had a "local connection" with Glasgow and that the obligation to provide housing for him and his family could be transferred to Glasgow City Council pursuant to section 198 of the Act.

    52.  The facts regarding Mrs Osmani follow similar lines. She and her sons arrived in Glasgow in February 2001. A letter dated 3 May 2001 from the Home Office Immigration and Nationality Directorate informed her that her status as a refugee had been accepted and that she had been granted indefinite leave to remain in the United Kingdom. The leave she had been granted brought to an end her status as an asylum seeker. As in the case of Mr Al-Ameri she became entitled to live wherever she chose in the United Kingdom and to obtain work. She was told that she would be contacted about leaving her Glasgow accommodation. But nobody did contact her and eventually, in September 2001, she handed in her keys to the Glasgow City Council and went with her two sons to London. She applied to the London Borough of Harrow for housing under the 1996 Act. Harrow accepted that she was homeless and not intentionally so but, as Kensington and Chelsea had done in the case of Mr Al-Ameri, formed the view that her residence in Glasgow had given her a "local connection" with Glasgow that enabled them, Harrow, to require the Glasgow City Council to accept the obligation of housing her.

    53.  Section 198 of the Act allows a local housing authority to whom an application by a homeless person for housing has been made to refer the application to another local housing authority if certain conditions are met. One of these conditions is that "the applicant … has a local connection with the district of that other authority (see section 198(2) of the 1996 Act). Section 199 describes what is meant by a "local connection":

    "(1) A person has a local connection with the district of a local housing authority if he has a connection with it—

    (a)  because he is, or in the past was, normally resident there, and that residence is or was of his own choice;

    …."

The full statutory framework has been set out in the opinion given by my noble and learned friend Lord Bingham of Cornhill. I need not repeat it for the only issue before your Lordships for decision is whether Mr Al-Ameri's and Mrs Osmani's respective residence in Glasgow was "of [their] own choice" for the purpose of section 199(1)(a). It is accepted that they were "normally resident" there.

    54.  If an asylum seeker who would have preferred to live elsewhere has travelled to the district in which NASS have offered him or her accommodation and has taken up residence in that accommodation under the threat from NASS that if he or she fails to do so all NASS support, both for accommodation and for subsistence, will or may be withdrawn and he or she may be placed in detention, an answer to the question whether the asylum seeker has taken up residence in that district of his or her own choice does not seem to me to be a difficult one. In such a case it would, in my opinion, be a misuse of language to say that the district in which the asylum seeker had taken up residence was the district of his or her own choice. And so long as the constraints on moving to reside elsewhere remain, ie the loss of accommodation and subsistence support and the liability to be placed in detention, it seems to me impossible to say that the individual is residing in the district of his or her own choice.

 
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