Al-Ameri (FC)(Respondent) v. Royal Borough of Kensington and Chelsea (Appellants) Osmani (FC) (Respondent) v. London Borough of Harrow (Appellants)(Conjoined Appeals)
55. Mr Underwood QC, counsel for the appellants, the two local authorities, submitted that every voluntary act, every conscious decision, involved a choice. The individual could, whatever the adverse consequences might be, have decided not to do the act in question, or have made some other decision. There is certainly a sense in which counsel is right. If a condemned man walks to the scaffold, not wishing to be dragged there by force, there is a sense in which it could be said that he has chosen to do so. But only a pedant would say that he had gone to the gallows of his own choice. The most that could be said is that he had decided it would be preferable to walk than to be dragged. To that extent he had made a choice.
56. This example makes, I hope, the point that if a question arises whether some act has been done or some state of affairs has come about of an individual's own choice, it is necessary, before answering, to be clear and precise about what it is that the choice is directed to. In the example, the choice, if there is one, is not directed to what is to happen on the gallows; it is directed to the means by which the condemned man is to get from his cell to the scaffold. Section 199(1)(a) asks the question whether residence in a particular district was of the individual's own choice. The question asks whether the individual chose that particular district to be the district of his or her residence. It is directed to the choice of the district. It seems to me clear on the evidence that neither Mr Al-Ameri nor Mrs Osmani chose Glasgow. Glasgow was chosen for them by NASS. The circumstance that each of them decided to travel with their respective families to Glasgow and to take up residence there rather than to expose themselves to the privation and uncertain future that would have followed upon their failure to do so may be represented as a choice. But it was not the choice that section 199(1)(a) is directed to.
57. Provided that the decision maker, faced with answering a section 199(1)(a) question, concentrates on asking whether it was the applicant who chose the district in question, rather than some other person who made the choice, the answer is a question of fact. So long as the individual remains an asylum seeker and subject to the severe constraints to which I have referred, the fact that he or she had remained in the allocated accommodation would not, in my opinion, justify a conclusion that he or she had remained in the district of his or her own choice. But once the asylum seeker status had come to an end and the statutory constraints on asylum seekers had ceased to be applicable, the erstwhile asylum seeker's continued residence in the same accommodation might, in association with other relevant circumstances, justify a conclusion on the facts that residence in the district had become residence there of his or her own choice. This is a factual issue that does not arise in either of the present cases. Mr Al-Ameri stayed on at his Glasgow residence for about eight months after being granted exceptional leave to enter this country. Mrs Osmani stayed on at her Glasgow residence for four or five months after being granted indefinite leave to remain in this country. But in relation to neither of them was it suggested that if their residence in Glasgow had not previously been of their own choice it had become so by reason of their staying-on. There must, however, in my opinion, come a point at which an erstwhile asylum seeker's continued residence in the accommodation to which he or she was directed by NASS might constitute residence in that district of his or her own choice. Your Lordships ought not, in my opinion, to be taken to be holding that because residence by an asylum seeker in a particular district was not originally residence there of the asylum seeker's choice it could not subsequently become so by continued residence after the asylum seeker status had come to an end. Any such question would depend on the facts of the particular case.
58. I have had the advantage of reading in advance the opinions of my noble and learned friends Lord Bingham of Cornhill and Lord Hope of Craighead. For the reasons they have given, with which I am in full agreement, and for the supplementary reasons in this opinion, I concur in their conclusion that these appeals should be dismissed.
LORD WALKER OF GESTINGTHORPE