Burns, R (on the application of) v London Borough of Southwark

A local housing authority exercising its discretion to provide accommodation pending review under section 188(3) of the Housing Act 1996 may rely on the Secretary of State’s refusal of a residence permit when assessing eligibility. It need not generally conduct its own immigration inquiries where that refusal has already been made. The position may differ where the applicant is still awaiting the Secretary of State’s decision. The authority must nevertheless consider the relevant material and apply the criteria governing the section 188(3) discretion, including the merits of the review, any new material and the applicant’s personal circumstances.

The claimant, a Nigerian national married to an Irish national, was evicted from accommodation and sought homelessness assistance from Southwark. The authority accepted that she might be homeless but decided that she was ineligible under section 185 of the Housing Act 1996 because her immigration status remained unresolved and she had no recourse to public funds.

Pending review of that decision, she asked the authority to exercise its discretion under section 188(3). The authority refused, relying on the Secretary of State’s refusal of a residence permit. The claimant sought judicial review, arguing that the authority had unlawfully fettered its discretion by failing to make its own assessment of her possible EEA-derived right of residence.

The application for judicial review was refused.

1. The discretion under section 188(3) of the Housing Act 1996 had to be exercised lawfully. The relevant considerations included the merits of the challenge to the original homelessness decision, any new material capable of affecting that decision, and the applicant’s personal circumstances and the consequences of refusing accommodation. Those criteria were derived from R v Camden London Borough Council ex parte Mohammed [1998] 30 HLR 315.
2. The authority was entitled to treat the Secretary of State’s refusal of a residence permit under the Immigration (European Economic Area) Regulations 2000 as evidence of the claimant’s immigration position. It was not required, in the circumstances, to undertake a separate assessment of whether she had an EEA-derived right of residence.
3. The distinction between a pending immigration decision and a refusal was material. Where an applicant was awaiting a decision, further inquiry might be required. Where a residence permit had been refused, reliance on that refusal was reasonable.
4. The authority had considered the refusal and the other matters identified in its letter. Its decision did not demonstrate irrationality, unreasonableness, failure to consider relevant matters or unlawful fettering of discretion.

The court recognised that delay in determining immigration status could cause difficulty, but considered that the Home Office’s specialist European Union unit was better placed to resolve such questions. The claimant was ordered to pay 80 per cent of the defendant’s costs, subject to liberty to apply concerning public funding.