Morris, R (on the application of) v Westminster City Council & Anor

Article 14 is engaged where legislation falls within the ambit of an Article 8 right, even though Article 8 itself is not breached. Housing legislation intended, at least in part, to keep homeless families together falls within the ambit of respect for family life. A difference in housing assistance based on nationality requires objective and reasonable justification, including a proportionate relationship between the measure and its legitimate aim. Section 185(4) of the Housing Act 1996 did not satisfy that test where it required the dependent child of a British citizen to be disregarded because the child was subject to immigration control. The provision could not be read compatibly under section 3 of the Human Rights Act 1998 without impermissibly amending it. A declaration of incompatibility was therefore appropriate.

The claimant, a British citizen, applied for homelessness assistance under Part VII of the Housing Act 1996 with her dependent daughter. The daughter was then subject to immigration control. The Council treated the claimant as lacking a priority need because section 185(4) required the daughter to be disregarded. The court had previously upheld that construction under ordinary principles of statutory interpretation.

Following the daughter’s registration as a British citizen, the claimant no longer required accommodation from the Council, but the parties agreed that the human-rights issues should proceed. The questions were whether the statutory scheme discriminated contrary to Article 14 taken with Article 8, whether section 185(4) could be read compatibly under section 3 of the Human Rights Act 1998, and whether a declaration of incompatibility should be made.

1. Article 14 framework. The court adopted the structured approach in Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, with a separate question whether the difference in treatment was on a prohibited ground. The questions were: ambit of a substantive Convention right; difference in treatment; prohibited ground; analogous situation; and objective and reasonable justification.
2. Ambit and discrimination. Part VII of the Housing Act 1996, particularly sections 188, 189 and 193 read with section 176, was intended to promote family life by preventing homeless families from being separated. It therefore fell within the ambit of Article 8, although Article 8 did not itself confer a right to housing. The claimant was treated differently from a British citizen with a dependent child not subject to immigration control. The difference was on the ground of national origin, since section 185(2) principally distinguished persons subject to immigration control, a category substantially corresponding to non-British citizens.
3. Justification and proportionality. Restricting access to housing assistance to discourage benefit tourism and encourage regularisation pursued legitimate aims. However, section 185(4) was unlikely to deter British citizens from bringing dependent children to the United Kingdom, because their motivation was family life rather than access to housing assistance. The provision therefore lacked a reasonable and proportionate relationship to the principal aim relied upon. The availability of discretionary accommodation under section 192(3), or other possible safety nets, did not cure the incompatibility.
4. Construction and remedy. Section 185(4) could not be reinterpreted compatibly under section 3 of the Human Rights Act 1998 without changing the substance of Parliament’s provision. The court rejected arguments that the incompatibility arose only from the regulations, or that available discretionary powers made a declaration unnecessary.
5. Order. A declaration was made under section 4(2) of the Human Rights Act 1998 that section 185(4) of the Housing Act 1996 was incompatible with Article 14 to the extent that it required a dependent child of a British citizen subject to immigration control to be disregarded when determining priority need. No other relief was granted.

The judgment records that the court had previously decided the ordinary-construction issue in [2003] EWHC 2266 (Admin) and subsequently directed that the discrimination, construction and declaration issues proceed in [2004] EWHC 1199 (Admin). This judgment determined those remaining issues at first instance.