Westminster City Council & Anor v Morris

Legislation governing homelessness falls within the ambit of article 8 where its specific purpose is to preserve family unity. It must therefore comply with article 14.

A rule which prevents a lawfully resident British parent from establishing priority need because a resident dependent child is subject to immigration control is discriminatory. The discrimination may arise from nationality or from the combined operation of nationality, immigration status and residence. It requires objective and proportionate justification.

Discouraging benefit tourism and unlawful residence did not justify penalising a British parent entitled to live in the United Kingdom. Alternative statutory powers neither cure the incompatibility nor automatically become duties. Authorities may use them on their merits, but not simply to circumvent Parliament’s restriction.

A British citizen and her dependent child sought homelessness assistance from Westminster City Council. The child was treated as subject to immigration control. Section 185(4) of the Housing Act 1996 consequently prevented the mother from relying on the child to establish priority need.

Keith J held in [2004] EWHC 2191 (Admin) that the provision unjustifiably discriminated in relation to family life and declared it incompatible with article 14 of the Convention. Westminster and the First Secretary of State appealed.

A related judicial review concerned a father whom Lambeth had refused priority status because his child was subject to immigration control. Its further issue was whether alternative local-authority powers became duties, remained discretionary, or could not lawfully be used following a declaration of incompatibility.

1. By a majority, the appeal in Morris was dismissed and the declaration of incompatibility upheld in modified form. Sedley LJ, with whom Auld LJ agreed, held that the relevant homelessness provisions were specifically designed to preserve family unity. Although contained within a wider social-welfare scheme, section 185(4) of the Housing Act 1996 therefore fell within the ambit of article 8.

2. The exclusion was discriminatory within article 14. The ground could be characterised as nationality or as the combined operation of nationality, immigration control, settled residence and social-welfare status. A selectively operating measure remained discriminatory even though some non-nationals were eligible and some nationals were excluded on other grounds.

3. The discrimination lacked reasonable and proportionate justification. Immigration control could legitimately discourage unlawful residence or benefit tourism by foreign nationals. It supplied no adequate justification for disadvantaging a British citizen entitled to live in the United Kingdom because her dependent child had not obtained an appropriate immigration status. The provision did not logically correspond to the asserted policy objectives, particularly where parent and child were habitually resident.

4. The existence of other statutory powers did not remove the incompatibility. A declaration addresses the general compatibility of primary legislation, not merely whether a particular claimant might obtain assistance through another route. The declaration was qualified to cover a British citizen and dependent child who were both habitually resident in the United Kingdom.

5. Jonathan Parker LJ dissented. He regarded the distinction as based on immigration status and habitual residence rather than nationality. In his view, concentrating scarce resources on persons with a settled connection to the United Kingdom fell within Parliament’s wide discretionary area of judgment and justified the distinction.

6. In Badu, Sedley LJ and Auld LJ held that alternative powers remained available but did not automatically become duties merely because section 185(4) was incompatible. Nor could they be exercised simply to circumvent the statutory restriction. Their exercise remained subject to ordinary public-law requirements and sections 3 and 6(1) of the Human Rights Act 1998. The application was remitted to Lambeth for rapid reconsideration.

1. Court of Appeal (Civil Division): By a majority, dismissed the appeals against the declaration made in [2004] EWHC 2191 (Admin), but modified its terms to require habitual residence of both parent and child. Sitting also as the Administrative Court, remitted the related Badu application to Lambeth.
2. Administrative Court: Keith J held in [2004] EWHC 2191 (Admin) that section 185(4) of the Housing Act 1996 was incompatible with article 14 insofar as it required the dependent child of a British citizen to be disregarded because the child was subject to immigration control.
3. Administrative Court: In an earlier unappealed judgment, [2003] EWHC 2266 (Admin), Keith J held that section 185(4) prevented the parent from relying on the child to establish priority need.