Couronne & Ors v Crawley Borough Council & Ors

A habitual residence condition for jobseeker’s allowance and homelessness assistance may lawfully apply to British citizens. Section 41(2) of the Race Relations Act 1976 excludes discrimination based on residence or length of residence where the act is done under a ministerial instrument. The Race Directive cannot be used to interpret or disapply that provision in a case outside the Community legal order. Non-contributory benefits and homelessness assistance did not fall within the relevant ambit of Article 1 of Protocol 1, and the particular habitual residence condition did not fall within Article 8. The condition pursued the legitimate aim of restricting benefits to persons with a genuine connection to the United Kingdom and was a proportionate response, notwithstanding the claimants’ history and the absence of an exemption for Chagossians.

Two groups of British citizens of Chagossian origin arrived in the United Kingdom from Mauritius and claimed jobseeker’s allowance and homelessness assistance. Their claims were refused because they were not habitually resident in the Common Travel Area. They sought judicial review of those refusals, alleging discrimination under the Race Relations Act 1976 and Council Directive 2000/43/EC, incompatibility with Articles 14 and 8 of the Convention and Article 1 of Protocol 1, and irrationality or disproportionality in refusing to exempt Chagossians from the condition.

The central questions were whether the statutory exception for residence-based distinctions applied, whether European Community law or the Convention displaced that result, and whether the habitual residence condition was justified and proportionate.

1. Claims dismissed. The claimants failed to establish unlawfulness under the Race Relations Act 1976, the Race Directive or the Convention.
2. Section 41(2) of the Race Relations Act 1976 applied to the use of a habitual residence condition contained in regulations made under primary legislation. Its natural meaning covered distinctions based on residence outside the United Kingdom, including residence in Ireland and elsewhere in the Common Travel Area.
3. The claimants were outside the Community legal order for the purposes relied upon. Following Gingi v Secretary of State for Work and Pensions [2001] EWCA Civ 1685, Community law did not require a national provision applicable both within and outside that legal order to be interpreted in a Community-compliant manner in an external case. The Race Directive therefore could neither interpret nor disapply section 41(2).
4. The court was bound by Campbell v South Northamptonshire DC [2004] EWCA Civ 409 on the application of Article 1 of Protocol 1 to non-contributory benefits. Jobseeker’s allowance and homelessness assistance did not fall within its ambit. The particular habitual residence condition was not sufficiently connected with private or family life to engage Article 8.
5. Section 6(2)(b) of the Human Rights Act 1998 provided the local authority with a defence in any event. The authority was applying regulations made under primary legislation which could not be read compatibly with the Convention rights.
6. Although unnecessary to the result, the court held that the condition pursued a legitimate aim: protecting public funds and requiring a genuine connection with the United Kingdom. Its application to non-Irish British citizens, and the refusal to create a Chagossian exemption, were proportionate. The claimants sought a complete exemption rather than treatment equivalent to the Irish comparator group.

First-instance judicial review proceedings. The judgment states that the claimants had succeeded before the Social Security Appeal Tribunal on habitual residence, but that the Secretary of State’s appeal to the Social Security Commissioner remained pending. The present claims were dismissed.