Al-Ameri (FC) (Respondent) v. Royal Borough of Kensington and Chelsea (Appellant) Osmani (FC) (Respondent) v. London Borough of Harrow (Appellant) (Conjoined Appeals)

Residence is of a person’s own choice for the purposes of section 199(1)(a) of the Housing Act 1996 only where the person chose the particular district as the place of residence. Voluntarily accepting accommodation does not suffice where its locality was selected by another.

A destitute asylum seeker accommodated under the statutory dispersal scheme cannot acquire a local connection through that residence. The scheme requires any preference about locality to be disregarded. Acceptance of the sole accommodation and subsistence package offered therefore does not make residence in the selected district the asylum seeker’s own choice. Continued residence after asylum-seeker status and its constraints have ended may, depending on the facts, later become residence of the person’s own choice.

The respondents were destitute asylum seekers who accepted accommodation in Glasgow under the National Asylum Support Service dispersal scheme. They were told that the accommodation was offered on a no-choice basis and that refusal could result in the withdrawal of accommodation and subsistence support.

After receiving leave to remain, each respondent travelled to London and applied for homelessness assistance. The appellant London authorities accepted that the full housing duty arose but decided to refer the applications to Glasgow City Council on the ground that residence in Glasgow had created a local connection. The county courts upheld those decisions.

The Court of Appeal, by a majority, allowed the respondents’ appeals: [2003] EWCA Civ 235, [2003] 1 WLR 1289. The central issue before the House was whether residence in accommodation whose locality had been selected under the statutory dispersal scheme was capable of being residence of the asylum seeker’s own choice under section 199(1)(a) of the Housing Act 1996.

1. Disposition. The House unanimously dismissed both local authorities’ appeals. Lord Bingham delivered the leading speech. Lord Hope agreed and gave further reasons; Lord Scott agreed and added a qualification concerning continued residence after asylum-seeker status ends; Lord Walker agreed with Lords Bingham and Hope.

2. The relevant choice concerns the district. Per Lord Bingham, Lord Hope and Lord Scott, section 199(1)(a) of the Housing Act 1996 asks whether the person chose to reside in the particular district. A conscious decision to accept an offered support package is not enough. Nor is it enough that the person went voluntarily, was content to remain, or could theoretically have refused and endured destitution. The statutory words direct attention to who selected the locality.

3. Operation of the dispersal scheme. Under sections 95 and 96 of the Immigration and Asylum Act 1999, accommodation and essential living support were offered as a package. Section 97(2)(a) required the Secretary of State to disregard the asylum seeker’s preference about locality. The locality was therefore selected by the Secretary of State through NASS. Per Lord Hope, the statutory scheme and administrative practice were unequivocally based on dispersal without choice.

4. No residence-based local connection during dispersal. Residence under those constraints could not be residence of the asylum seeker’s own choice. It was consequently incapable of establishing a local connection through normal residence under section 199(1)(a). Whether a local connection exists is ultimately a question of fact, but whether the facts relied upon are legally capable of satisfying the statutory requirement is a question of law.

5. Sections 199(3) and 199(5). The express exclusions for service personnel and detained persons did not make those categories exhaustive. Their purpose was to prevent fact-sensitive inquiries where, for example, a person had requested a particular posting or place of detention. Nor did the Secretary of State’s failure to make an order under section 199(5) control the clear meaning of section 199(1)(a).

6. Later residence. Lord Scott observed that, once asylum-seeker status and its constraints have ended, continued residence in the allocated accommodation may, together with other circumstances, become residence in the district of the former asylum seeker’s own choice. That factual issue had not been raised in either appeal.

7. The appellant authorities were ordered to pay the respondents’ costs before the House. Glasgow City Council, as intervener, was to bear its own costs.

1. House of Lords: The local authorities’ appeals were unanimously dismissed: [2004] UKHL 4.

2. Court of Appeal: By a majority, the court allowed the former asylum seekers’ conjoined appeals from the county courts; Buxton LJ dissented: [2003] EWCA Civ 235, [2003] 1 WLR 1289. The Court of Appeal granted permission to appeal.

3. County courts: Her Honour Judge Dangor dismissed Mrs Osmani’s appeal, holding that her Glasgow residence was capable of creating a local connection. His Honour Judge Reynolds dismissed Mr Al-Ameri’s appeal on the same basis.