Couronne & Ors v Bontemps & Ors

An habitual residence rule applying to British citizens outside the Common Travel Area does not become indirectly racially discriminatory merely because British citizens habitually resident in Ireland qualify. The relevant comparison is the wider class of British citizens habitually resident outside the CTA. The inclusion of Ireland is justified by the United Kingdom’s long-standing political and geographical connections with Ireland.

A decision not to create an exception for Chagossians is not irrational solely because government unlawfulness contributed to their displacement. Without a sufficient nexus, that conduct is not a legally relevant consideration. Section 41(2) of the Race Relations Act 1976 also excludes the relevant acts from challenge. The Race Directive cannot aid or displace domestic law where Community competence is absent.

Two groups of British citizens of Chagossian origin arrived in the United Kingdom from Mauritius in 2004. They were refused income-based jobseeker’s allowance and homelessness assistance because they were not habitually resident in the United Kingdom, Ireland, the Isle of Man or the Channel Islands.

Bennett J dismissed their applications for judicial review. He held that the refusal was rational, that there was no unlawful discrimination under the Race Relations Act 1976, and that the claims under the Race Directive and the European Convention on Human Rights failed. The appeals concerned rationality, indirect discrimination, the construction of section 41(2), European Community competence, and Convention rights.

Both appeals were dismissed unanimously. Wall LJ delivered the leading judgment. Thomas LJ agreed with the result and the conclusion that there was no discrimination, but did not express a view on the precise Treaty-competence issue. Ward LJ agreed with Wall LJ.

1. Rationality. The classic Wednesbury test applied, as illustrated by O’Connor v Chief Adjudication Officer [1991] 1 FLR 1200. A decision would be unlawful if the Secretary of State omitted a factor which no reasonable decision-maker could omit. However, the government’s unlawful conduct in preventing return to the Chagos Islands had no sufficient legal nexus with the separate decision whether to relax the habitual residence rule. The appellants had chosen to come to the United Kingdom and were in no different position from other indigent British citizens returning from abroad. The exception for Montserrat was rationally distinguishable because a natural disaster had made that territory uninhabitable.
2. Indirect discrimination. The relevant comparison was between British citizens habitually resident in the CTA and all other British citizens habitually resident outside it, rather than between Chagossians and Irish citizens alone. Even if the rule produced a difference in treatment, its inclusion of Ireland was a proportionate means of achieving a legitimate aim, reflecting the historical and geographical relationship between the United Kingdom and Ireland.
3. Section 41(2). The natural and ordinary meaning of section 41(2) of the Race Relations Act 1976 covered acts based on place of ordinary residence or the length of time spent in or outside the United Kingdom. The phrase concerning an area within the United Kingdom additionally covered provisions concerning places such as Scotland or Wales. It did not exclude residence in a particular place abroad.
4. European law. The Race Directive could neither assist in construing nor displace section 41(2), because the Community lacked competence over the matter. The court applied Gingi v Secretary of State for Work and Pensions [2001] EWCA Civ 1685 and relied on R (Hurst) v the North London District Coroner [2007] UKHL 13.
5. Convention claims. The court followed Campbell v South Northamptonshire DC [2004] EWCA Civ 409 in treating non-contributory benefits as outside Article 1 of the First Protocol. The habitual residence condition was not directed to promoting private or family life and therefore fell outside Article 8. In any event, the difference in treatment was justified. The court also agreed, without needing to decide the appeals on that basis, that section 6(2) of the Human Rights Act 1998 provided the local authorities with a complete defence.

• Court of Appeal (Civil Division) — The court dismissed both appeals: [2007] EWCA Civ 1086.
• Administrative Court of the Queen’s Bench Division — Bennett J dismissed two applications for judicial review on 30 June 2006.