Lekpo- Bozua v London Borough of Hackney

Permission to bring a second appeal should be granted where the proposed grounds have realistic prospects of success and raise important issues of general principle or practice. The court identified the relevant European-law approach: Article 18(1) of the EU Treaty may fill an accidental lacuna in Directive 2004/38/EC, consistently with proportionality, but cannot be used where the Directive deliberately excludes the class concerned. The proposed human-rights and proportionality arguments, together with recent European case law, warranted consideration on a full appeal. Permission was therefore granted generally, with amendment of the notice of appeal permitted in principle so that it accurately reflected the arguments to be advanced.

The appellant, a British citizen made homeless by domestic violence, lived with her French niece in Hackney. The local housing authority accepted that she was eligible for assistance and had a priority need, but imposed the more limited duty under the Housing Act 1996, section 193 because it treated the niece as a restricted person.

The reviewing officer upheld that decision in June 2009, and the county court dismissed the appellant’s appeal. She sought permission for a second appeal. The proposed grounds concerned the niece’s residence rights under Article 18 of the EU Treaty, the interpretation of Directive 2004/38/EC and the Immigration (European Economic Area) Regulations 2006, proportionality, and Article 8 of the European Court on Human Rights.

The issue was whether the case raised an important point of principle or practice, or another sufficient reason for a further appeal.

1. Permission granted. This was an application for permission to bring a second appeal because the county-court proceedings had themselves been an appeal from the reviewing officer’s decision. Permission should be granted only where the case raises an important point of principle or practice, or there is some other reason why the appeal should be heard.
2. The proposed grounds did not wholly lack prospects of success and raised issues of general importance. The essential substantive issue was whether the niece had a right to reside freely in the United Kingdom under Article 18 of the EU Treaty. If she did, the authority owed the appellant the full housing duty under section 193 of the Housing Act 1996; otherwise, the more limited duty applied.
3. The court recorded the governing European-law approach derived from Baumbast v SSHD [2002] ECR-701. Limitations and conditions on residence rights must operate consistently with general principles of European Union law, including proportionality. Article 18(1) may fill an accidental lacuna in the Directive where it is plainly appropriate to recognise a Union citizen’s residence right. It cannot be invoked where the Directive deliberately excludes the relevant class, since that would undermine the Directive.
4. The niece did not fall within any definition of a qualified person in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006. The county-court judge had therefore concluded that she simply failed to meet the regulatory requirements. However, the appellant’s arguments concerning family life, health-insurance and resources requirements, the alleged lacuna, and recent European case law—including Teixeira v Lambeth and Ibrahim v Harrow—were sufficiently important to justify a full hearing.
5. Permission was granted generally rather than being confined to selected grounds. The court was prepared in principle to permit amendment of the notice of appeal so that it accurately stated all arguments contained in the skeleton argument. Order: application granted.

• Court of Appeal (Civil Division): permission to bring a second appeal was granted generally. The judgment is reported at [2010] EWCA Civ 222.
• Clerkenwell & Shoreditch County Court: HHJ John Mitchell heard the appeal from the reviewing officer and upheld the decision that the authority owed only the more limited housing duty.
• Reviewing officer: in June 2009, the authority’s decision was upheld.