POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ROYAL BOROUGH OF KENSINGTON AND CHELSEA
HOUSE OF LORDS
THURSDAY 5 FEBRUARY 2004
ON APPEAL FROM:  EWCA CIV 235
CWLR (2004) 2
 UKHL 4
CHILDREN AND WOMEN LAW: – Immigration and Asylum in the United Kingdom – Accommodation preferences and family with children – How treated – Relevant considerations
BEFORE THEIR LORDSHIPS:
LORD BINGHAM OF CORNHILL
LORD HOPE OF CRAIGHEAD
LORD SCOTT OF FOSCOTE
LORD WALKER OF GESTINGTHORPE
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE:
AL-AMERI (FC) (Respondent)
ROYAL BOROUGH OF KENSINGTON AND CHELSEA (Appellants)
OSMANI (FC) (Respondent)
LONDON BOROUGH OF HARROW (Appellants)
IMMIGRATION LAW AND ASYLUM: – Britain – Accommodation for asylum seekers – Residence of an asylum seeker in a district of accommodation provided to him/her under legislation which requires the provider to ignore any preference of the asylum seeker – Whether capable of being regarded as residence of the asylum seeker’s own choice
INTERPRETATION OF STATUTES: – Immigration and Asylum Act 1999 interpreted within the meaning of section 199(1) (a) of the Housing Act 1996
LORD BINGHAM OF CORNHILL [Delivering the Judgment of the Cour]
- The issue raised in these appeals was succinctly expressed by Simon Brown LJ in the opening sentence of his leading judgment in the Court of Appeal ( EWCA Civ 235,  1 WLR 1289, 1291):
“Is residence in a district in accommodation provided to a destitute asylum seeker under legislation which requires the provider to ignore any preference of the asylum seeker as to where he resides capable of being regarded as residence (in that district) of the asylum seeker’s own choice?”
- It is common ground that the respondents to these appeals (Mr Al-Ameri and Mrs Osmani, both of them former asylum seekers) were, in March 2002 and November 2001 respectively, entitled to be provided with accommodation for occupation by them and members of their families under the Housing Act 1996. The question is whether the duty to secure provision of such accommodation may have lain on the intervener (the Glasgow City Council) or whether it lay on the appellants (the Royal Borough of Kensington and Chelsea and the London Borough of Harrow) respectively. The answer turns on whether the respondents’ residence in Glasgow as asylum seekers under the Immigration and Asylum Act 1999, pending determination of their applications for asylum, may have given rise to a local connection between the respondents and the Glasgow City Council in its capacity as the housing authority for the district in which the respondents, as asylum seekers, were resident. That in turn depends on whether, within the meaning of section 199(1)(a) of the Housing Act 1996, such residence was of the respondents’ own choice.
- The issue thus arises at the confluence of two streams of legislation, the general homelessness provisions under Part VII of the 1996 Act and the provisions governing support for asylum seekers in Part VI of the 1999 Act. If the respondents’ residence in Glasgow pending determination of their asylum claims cannot in law have given rise to a local connection between the respondents and the district of the Glasgow City Council, then it was the duty of the appellant authorities respectively to secure that accommodation was available for occupation by the respondents. If that residence may in law have given rise to such a local connection, further enquiry into the facts will be necessary hereafter to decide whether, in these particular cases, such a local connection was established or not. While the respondents are parties to this litigation and not dispassionate onlookers, there are echoes of the old Poor Laws, under which parishes contended that paupers were settled in a parish other than their own (see Holdsworth, A History of English Law, vol x, p 257 et passim).
- The central provision of the 1996 Act is section 193, which applies (subsection (1))
“where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally.”
The authority must then (subsection (2)) “secure that accommodation is available for occupation by the applicant”. But this duty imposed on the local housing authority is subject to an important qualification: “Unless the authority refer the application [for accommodation] to another local housing authority (see section 198), …”.
- So far as relevant to this appeal, section 198 provides:
“Referral of case to another local housing authority
(1) If the local housing authority would be subject to the duty under section 193 (accommodation for those with priority need who are not homeless intentionally) but consider that the conditions are met for referral of the case to another local housing authority, they may notify that other authority of their opinion.
(2) The conditions for referral of the case to another authority are met if –
(a) neither the applicant nor any person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made,
(b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority, … ”
- The meaning of the expression “local connection” used in section 198(2)(a) and (b) is elaborated in section 199:
(1) A person has a local connection with the district of a local housing authority if he has a connection with it –
(a) because he is, or in the past was, normally resident there, and that residence is or was of his own choice,
(b) because he is employed there,
(c) because of family associations, or
(d) because of special circumstances.
(2) A person is not employed in a district if he is serving in the regular armed forces of the Crown.
(3) Residence in a district is not of a person’s own choice if –
(a) he becomes resident there because he, or a person who might reasonably be expected to reside with him, is serving in the regular armed forces of the Crown, or
(b) he, or a person who might reasonably be expected to reside with him, becomes resident there because he is detained under the authority of an Act of Parliament.
(4) In subsections (2) and (3) ‘regular armed forces of the Crown’ means the Royal Navy, the regular forces as defined by section 225 of the Army Act 1955 or the regular air force as defined by section 223 of the Air Force Act 1955.
(5) The Secretary of State may by order specify other circumstances in which –
(a) a person is not to be treated as employed in a district, or
(b) residence in a district is not to be treated as of a person’s own choice.”
The substance of what is now section 199, including what are now subsections (1), (2) and (3), was first enacted in section 18 of the Housing (Homeless Persons) Act 1977.
- Section 202(1)(c) gives an applicant for accommodation the right to request a review of any decision of a local housing authority to notify another authority under section 198(1). If the applicant is dissatisfied with the outcome of a review or is not notified of the decision within a prescribed period, an appeal lies to the county court on any point of law arising from the decision under section 204.
- Section 185 provides that persons subject to immigration control within the meaning of the Asylum and Immigration Act 1996 should not, generally, be eligible for housing assistance, and section 186 as originally enacted limited the rights of asylum seekers.
- The exclusion of asylum seekers from entitlement to claim a range of social security benefits (including housing benefit) and accommodation under section 21 of the National Assistance Act 1948 was made plain by sections 115 and 116 of the 1999 Act which generally applied to persons subject to immigration control, including those who (like asylum seekers) required leave to enter or remain in the United Kingdom but did not have it. Their entitlement to support (if any) was to be governed by Part VI of the 1999 Act, entitled “Support for Asylum-Seekers”, who are defined in section 94(1) to mean persons not under 18 who had made a claim for asylum which had been recorded by the Secretary of State but which had not been determined.
- Section 95(1) of the 1999 Act empowers the Secretary of State to provide, or arrange for the provision of, support for
“(a) asylum-seekers, or
(b) dependants of asylum-seekers, who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.”
Subsection (3) provides two possible grounds on which, for purposes of the section, a person may be destitute, namely if
“(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.”
If the asylum seeker has dependants, subsection (3) is to be read as if the references to him are references to him and his dependants taken together. Subsections (5) and (6) are directed to the Secretary of State’s determination whether an asylum seeker’s accommodation is adequate: to some matters set out in (6) the Secretary of State is not to have regard; matters may be prescribed to which he is to have regard. Matters may be prescribed to which the Secretary of State should and should not have regard in determining for purposes of the section whether an asylum seeker’s essential living needs are met: subsection (7). Support may (subsection (9)) be provided subject to conditions.
- Under section 96, support may be provided under section 95
“(a) by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependants (if any);
(b) by providing what appear to the Secretary of State to be essential living needs of the supported person and his dependants (if any); … .”
Section 97(1) and (2) provide as follows:
“(1) When exercising his power under section 95 to provide accommodation, the Secretary of State must have regard to –
(a) the fact that the accommodation is to be temporary pending determination of the asylum-seeker’s claim;
(b) the desirability, in general, of providing accommodation in areas in which there is a ready supply of accommodation; and
(c) such other matters (if any) as may be prescribed.
(2) But he may not have regard to –
(a) any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided; or
(b) such other matters (if any) as may be prescribed.”
The right of appeal conferred on an asylum seeker by section 103 of the Act does not entitle him to complain of the place where accommodation is offered.
- Reference should finally be made to subsections (1)-(4) of section 122, which provide:
“(1) In this section ‘eligible person’ means a person who appears to the Secretary of State to be a person for whom support may be provided under section 95.
(2) Subsections (3) and (4) apply if an application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18 (‘the child’).
(3) If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, adequate accommodation for the child as part of the eligible person’s household.
(4) If it appears to the Secretary of State that essential living needs of the child are not being met, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, essential living needs for the child as part of the eligible person’s household.”
- Mrs Osmani, the second-named respondent, is an Afghani who arrived in the United Kingdom with her two young sons on 6 December 2000 and sought asylum. On 15 February 2001 the National Asylum Support Service (“NASS”), an agency established to discharge some of the functions of the Secretary of State, accepted her application for accommodation and subsistence. She was informed in writing that accommodation, provided by the Glasgow City Council, had been reserved for her at a specified Glasgow address. The written notification made plain that if this offer were not accepted, no alternative would be offered; that vouchers to meet living expenses would be provided in Glasgow; and that if she failed to travel to Glasgow on the day stated or failed to comply with any provision in a form of agreement enclosed with the notification any support by NASS might be withdrawn. When she received that notification Mrs Osmani was in London. She and her children travelled to Glasgow and lived in the accommodation offered. By a letter dated 3 May 2001 she was notified that she had been granted indefinite leave to remain and would no longer be entitled to NASS support after 14 days. After a period of delay treated by both sides as irrelevant to the legal issue in this appeal, Mrs Osmani travelled to London, stayed with her brother in Harrow and applied to the London Borough of Harrow for accommodation as a homeless person. The authority accepted that a full housing duty was owed to her under section 193 of the Housing Act 1996 but concluded that while she did not have a local connection with Harrow she did have a local connection with Glasgow, and so the authority decided to refer her application to the Glasgow City Council. That authority promptly refused the reference and Mrs Osmani requested a review of the decision to refer. On review the decision was upheld. Mrs Osmani appealed to the county court where Her Honour Judge Dangor, in a careful and thorough judgment, concluded that Mrs Osmani’s residence in Glasgow was capable of giving rise to a local connection with Glasgow under section 199(1)(a) of the 1996 Act.
- Mr Al-Ameri, the first-named respondent, is an Iraqi national who arrived in the United Kingdom with his wife and two young daughters in May 2001. He claimed asylum. He was informed that all asylum seekers would be distributed throughout the country on a non-voluntary basis and only in exceptional circumstances would anyone be allowed to stay in London. In May 2001 Mr Al-Ameri was notified that he qualified for accommodation and essential living needs support under section 95 of the 1999 Act. He was to travel to Glasgow where accommodation and living needs support would be provided on a no-choice basis. If he did not accept the offer he should not expect an alternative offer. Failure to travel when required could lead to suspension or discontinuance of support. Mr Al-Ameri and his family travelled to Glasgow in May 2001 and occupied accommodation provided by the City Council. In June 2001 Mr Al-Ameri was granted exceptional leave to remain. After a period of delay treated by both sides as irrelevant to the legal issue in this appeal, he travelled to London and applied to the Royal Borough of Kensington and Chelsea for accommodation as a homeless person under section 193 of the 1996 Act. The authority reached the same conclusion on the full housing duty and on local connection as had been reached by the London Borough of Harrow in Mrs Osmani’s case. It decided, as Harrow had done, to refer the application to the Glasgow City Council, which refused to accept the referral. Mr Al-Ameri sought a review of the decision to refer, but without success. He appealed to the county court, where his appeal was heard before Mrs Osmani’s. But the result was the same: His Honour Judge Reynolds gave a lucid judgment dismissing the appeal.
- Both Mrs Osmani and Mr Al-Ameri appealed against the county court judgments and the Court of Appeal (Simon Brown, Buxton and Carnwath LJJ) heard the appeals together. The appeals were allowed by a majority, Buxton LJ reluctantly dissenting:  1 WLR 1289. The Court of Appeal granted leave to appeal against its decision.
- It was common ground in argument before the House that the respondents had been “normally resident” in the district of the Glasgow City Council as local housing authority during their residence in Glasgow as asylum seekers. Thus the first condition of establishing a local connection under section 199(1)(a) of the 1996 Act was satisfied. The crucial issue dividing the parties was whether such residence had been of the respondents’ own choice, an issue turning on the construction of these words in the context of this Act. For the appellant local authorities it was argued that the residence had been of the respondents’ own choice. They had had the choice of accepting the offer of accommodation (and living needs support) in Glasgow or not accepting it. That was not the less a choice because the alternative to accepting it was continuing destitution, subject to any possible provision for the children under section 122. The respondents lived in Glasgow as the result of a conscious and intentional decision to do so. Reliance was placed on Buxton LJ’s conclusion in para 66 of his judgment:
“As it was put in argument, Hobson’s choice is still a choice; just as ‘Sophie’s Choice’ was not a misnomer, agonising though the dilemma was in which the choice was made. And the choice is indeed the subject’s own choice. It is simply not right to say that it is made for him by someone else, however much the authorities arrange matters to push him in one direction rather than another”.
The respondents (supported by the intervener) contended that the relevant choice for the purpose of section 199(1)(a), read as a whole and in context, was the choice a person has made or not made to reside in a particular area. Thus the relevant enquiry of each respondent was “Did you choose to live in Glasgow?”, to which the answer could only be “No”.
- This issue of construction, like many such issues, bears little elaboration. Section 199(1) describes a number of ways in which a local connection may be established between a person and the district of a local housing authority. Under subsection (1)(a) a period of normal residence is necessary. But such residence must be of the resident’s own choice. So the question to be asked of each respondent is “Did you reside in Glasgow of your own choice?”. To that question there can be, in the case of each respondent, only one possible answer: “No. I was given no choice about where I resided. I resided in Glasgow because, and only because, that was the only place where I was offered accommodation and the means to meet the most basic of human needs”. To the extent that historical or fictional analogies assist, the same result follows. If a customer of Hobson had been asked whether he was riding a horse of his own choice, he would have been bound to reply that he had had no choice, it was that horse or none, he took what he was given. It would be wholly unrealistic to suggest that a child selected by Sophie for the gas chamber had died of Sophie’s own choice.
- If there were room for doubt about the correctness of this construction, consideration of the wider context would resolve it. The object of the NASS scheme introduced under the 1999 Act was to relieve pressure on local housing authorities in London and the South East of England by dispersing asylum seekers, while awaiting determination of their asylum claims, in other parts of the United Kingdom, particularly those parts where accommodation was more readily available. It was always seen as a cardinal feature of the scheme that asylum seekers in need of accommodation should go where they were sent. Thus the White Paper “Fairer, Faster and Firmer – A Modern Approach to Immigration and Asylum” (Cm 4018, July 1998) stated, in paragraph 8.22:
“Asylum seekers would be expected to take what was available, and would not be able to pick and choose where they were accommodated, but where possible placements would take account of the value of linking to existing communities and the support of voluntary and community groups.”
Thus the asylum seeker was to have no choice, and section 97(2)(a) of the 1999 Act expressly enjoined the Secretary of State to have no regard to any preference that the asylum seeker or his dependants might have as to the locality in which accommodation was to be provided.
- Reliance was placed on section 199(3) of the 1996 Act as showing that residence in a district might be of a person’s own choice even if directed: otherwise it would not have been necessary to exclude that possibility in the case of service personnel and detainees. It is of course true that service personnel and detainees normally exercise no choice about where they live. But service personnel may live in a particular place because they have applied to attend a course conducted in that place; and prisoners or mental patients may have asked to be confined in a particular place in order, for example, to be near their families. The purpose of section 199(3) is, in my opinion, to preclude the need for any enquiry in such a case. If it were otherwise, the burden on local housing authorities with large military bases, prisons or mental hospitals within their districts could be significant.
- It was pointed out that the Secretary of State has not exercised his power under section 199(5) of the 1996 Act to specify by order that residence in a district by an asylum seeker under the NASS dispersal scheme should not be treated as of the asylum seeker’s own choice. It is true that he has not, and this would be significant if the compelling inference were that he had not done so because it was envisaged that such residence were or might be of the asylum seeker’s own choice. But the Secretary of State’s understanding cannot control the construction of section 199(1)(a) which is in my opinion, with respect to those who have concluded otherwise, clear. And it is quite as likely that the Secretary of State regarded an asylum seeker’s residence under the NASS dispersal scheme as obviously not in a district of the asylum seeker’s own choice, or that he failed to address the question at all.
- The appellant local authorities relied on three authorities in particular to support their argument. The first of these was Director of Public Prosecutions for Northern Ireland v Lynch  AC 653. That case, concerned with the availability of duress as a defence to a defendant charged with aiding and abetting murder, arose in a field far removed from the present. The case was relied on for observations by Lord Morris of Borth-y-Gest (pp 671-672), Lord Wilberforce (pp 679-680), Lord Simon of Glaisdale (p 689), Lord Kilbrandon (p 703) and Lord Edmund-Davies (pp 709-710) as showing that even a person who acts in a certain way when threatened by death exercises a choice (he may refuse to act and suffer the consequence) and acts intentionally and voluntarily even if compelled. But the House in that case was considering a different question. It may be accepted that a person faces a “terrible agonising choice of evils” if, to take Lord Morris’ example, he “is required under such duress to drive a car to a place or to carry a gun to a place with knowledge that at such place it is planned that X is to be killed by those who are imposing their will” (p 671). But if it were asked whether such person drove the car or carried the gun of his own choice, the answer could only be negative.
- In R v Barnet London Borough Council, Ex p Nilish Shah  2 AC 309 the House was called upon to construe the expression “ordinarily resident” in the Education Acts of 1962 and 1980. In doing so, Lord Scarman (with the concurrence of the other members of the Committee) applied long-standing authority on the meaning of the expression. That authority was relied on for two passages in Lord Scarman’s opinion. The first was on p 344:
“There are two, and no more than two, respects in which the mind of the ‘propositus’ is important in determining ordinary residence. The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is”.
The second was on p 349:
” … local education authorities, when considering an application for a mandatory award, must ask themselves the question: has the applicant shown that he has habitually and normally resided in the United Kingdom from choice and for a settled purpose throughout the prescribed period, apart from temporary or occasional absences?”
- I would not wish to throw any doubt on the correctness of that reasoning as applied in that case. But the draftsman of section 18 of the 1977 Act (now section 199 of the 1996 Act) used the expression “normally resident”, and not the expression “ordinarily resident” which bore an established legal meaning. Had he regarded normal residence as itself including a requirement of choice, it would not have been necessary to provide “and that residence is or was of his own choice”. Nothing in Nilish Shah throws doubt on the construction of section 199(1)(a).
- The subject matter of Mohamed v Hammersmith and Fulham London Borough Council  UKHL 57, [2002 1 AC 547 was closer, although neither the applicant (Mr Mohamed) nor his wife were asylum seekers. The wife came to England in 1994 and lived for most of the time in flats in Ealing until in January 1998 she moved to live with a friend in Hammersmith. The husband came to England in January 1998 and lived with a (different) friend in Hammersmith. In April 1998 they jointly asked the London Borough of Hammersmith and Fulham for accommodation, and were given temporary accommodation in the authority’s district, first in a hotel and then in a flat, presumably under section 188 of the 1996 Act. They then applied for accommodation under section 193. In July 1998 the authority told the wife that they accepted a duty to arrange accommodation for her but that, although she had a local connection with Ealing where she had lived, she had no connection with Hammersmith, so the applications of both husband and wife were referred to Ealing on the basis that they appeared to have a local connection with Ealing but not with Hammersmith. The decision to refer was upheld on review and in the county court on the basis that the husband’s residence in Hammersmith was not such as could amount to normal residence for the purpose of section 199(1)(a) of the 1996 Act. Hammersmith argued (see para 17) that the occupation of interim accommodation pending a decision on the husband’s application under section 193 could not amount to normal residence. This argument was rejected by the Court of Appeal and the House. In the course of his opinion (with which the other members of the Committee agreed) Lord Slynn of Hadley referred to the notion of voluntariness, held in Nilish Shah to be an ingredient of ordinary residence, and pointed out that the Secretary of State had not exercised his power under section 199(5) to provide that residence in interim accommodation should not be treated as residence in a district of a person’s own choice (paras 17-19). There was however no argument whether Mr Mohamed’s residence in Hammersmith had been of his own choice, since for the first three months he had lived there of his own free will entirely and from April to July he had occupied accommodation in Hammersmith as a direct result of his and his wife’s application to do so. I do not consider that this authority throws any light on the present problem.
- In agreement with the majority of the Court of Appeal and with my noble and learned friend Lord Hope of Craighead, and for the same reasons, I would give a negative answer to the question posed at the outset of this opinion and dismiss the appeals. The appellant authorities must pay the respondents’ costs before the House. The intervener must bear its own costs.
LORD HOPE OF CRAGHEAD
- The respondents, who now have been given leave to remain in this country, were both formerly asylum-seekers within the meaning which is given to that expression by section 94(1) of the Immigration and Asylum Act 1999 (“the 1999 Act”). While they were seeking asylum they and their dependants were provided with support by the Secretary of State under section 95 of that Act because it appeared to him that they were or were likely to become destitute. Section 96 provides that the ways in which support may be provided for a destitute asylum-seeker under section 95 include the provision of accommodation pending determination of his claim.
- Section 97 of the 1999 Act provides:
“(1) When exercising his power under section 95 to provide accommodation, the Secretary of State must have regard to –
(a) the fact that the accommodation is to be temporary pending determination of the asylum-seeker’s claim;
(b) the desirability in general of providing accommodation in areas in which there is a ready supply of accommodation; and
(c) such other matters (if any) as may be prescribed.
(2) But he may not have regard to –
(a) any preference that the supported person or his dependants (if any) may have as to the locality in which the accommodation is to be provided; or
(b) such matters (if any) as may be prescribed.”
- The system of support under section 95 is operated on behalf of the Secretary of State by the National Asylum Support Service (“NASS”). An important feature of the scheme for the provision of accommodation which NASS operates is the dispersal of asylum-seekers throughout Great Britain. The object of this system is to relieve the pressure that would otherwise bear on local housing authorities in London and the South East, as this is where by far the greatest number of asylum-seekers enter the United Kingdom. Section 99 of the 1999 Act provides that a local authority may provide support for asylum-seekers in accordance with arrangements made by the Secretary of State under section 95. Local authorities are encouraged to enter into these arrangements. Section 99(4) allows them to incur expenditure in connection with the preparation of proposals for doing so. The local authorities with which arrangements have been made under this section include Glasgow City Council. Dispersal under this system is organised by NASS according to the availability of accommodation from time to time in the dispersal areas. The efficiency of its operation is assisted by the provision in section 97(2)(a) that any preference which the asylum-seeker may have as to where he is to be accommodated must be disregarded.
- The respondents were told by NASS that they were to travel to Glasgow, as it was there that support would be provided to them. Accommodation was found for them there in premises belonging to Glasgow City Council, which is the local housing authority. The accommodation which was provided for them under the scheme was, of course, temporary. It was never the intention under the dispersal scheme that this accommodation should be permanent. This is because the support provided to a destitute asylum-seeker under section 95 ceases when his claim for asylum is determined. When this happens, he is no longer an asylum-seeker within the meaning of section 94(1).
- The effect of the dispersal scheme, according to the latest statistics that were shown to your Lordships, has been that about 94 per cent of the asylum-seekers housed by NASS are now being accommodated outside Greater London: Home Office Asylum Statistics, 3rd Quarter 2003, p 7. The scheme appears to be achieving its aim of relieving the pressure which would otherwise have fallen on the Greater London housing authorities to make accommodation available to asylum-seekers. But its success has given rise to another problem which lies outside the scope of the dispersal scheme. This is the problem which emerges if the asylum-seeker’s claim is determined in his favour and he is given leave to remain in this country.
- An asylum-seeker who is given leave to remain in the United Kingdom is no longer entitled to the provision of temporary accommodation under section 95 of the 1999 Act. But if he is homeless within the meaning of section 175(1) of the Housing Act 1996 (“the 1996 Act”) or, if he is in Scotland, of section 24(1) of the Housing (Scotland) Act 1987 (“the 1987 Act”) he will have a priority need for the provision of housing by the local housing authority. He may apply to the authority for the provision of accommodation under the provisions of Part VII of the 1996 Act and Part II of the 1987 Act that deal with homelessness and threatened homelessness. The authority is under a duty to secure that accommodation becomes available for the applicant’s occupation if it is satisfied that he is homeless: section 193(2) of the 1996 Act and section 31(2) of the 1987 Act.
- There is another aspect of the dispersal scheme that must be noted at this stage. The conditions that are attached to the support which is given to the destitute asylum-seeker under section 95 of the 1999 Act fly off as soon as his status as an asylum-seeker terminates. A person who is given leave to remain in the United Kingdom is no longer an asylum-seeker. He is not obliged to remain in the locality where he was accommodated under the dispersal scheme. He is free to seek accommodation wherever he likes. If he is homeless, he can apply under the Housing Acts to the local housing authority of the area where he happens to be for the time being.
- People who are in this category tend to return to London or the South East in search of employment or because they have relatives there. This has given rise to the same concern about pressure on the local authorities in this area which the dispersal policy was designed to remove in the case of destitute asylum-seekers. These pressures affect not only the provision of housing. They have implications too for other services, such as education, for the provision of which the local authorities are responsible. And they are of greater concern to the local authorities at this stage because if they have to assume responsibility for their accommodation its provision will no longer be temporary. It will have to be dealt with as a priority need under the statute, and it will be permanent. The financial implications for whichever local authority has to bear this burden are considerable.
- Glasgow City Council was given leave to intervene in this case. It has been made clear on its behalf that it willingly accepts that, if a successful asylum-seeker housed with it under the dispersal programme applies to it for housing after the determination of the asylum claim, it will owe him a duty to provide accommodation under the 1987 Act because he will have no local connection anywhere else. But it does not accept the contention of the London local authorities that it should owe that duty regardless of the wishes of the former asylum-seeker as to where he is to live. And it does not accept that this is the result of the scheme which the statutes have laid down for the allocation of responsibility between local housing authorities.
- The problem as to how to allocate this responsibility between the authorities is not new. It was the subject of two departmental circulars in 1974 (Circular 18/74 issued by the Department of the Environment and Circular 4/74 issued by the Department of Health and Social Security) and of a further circular in 1975 (Circular 54/75 issued by the Department of the Environment). But experience had shown that the advice which they contained needed to be given statutory authority. The vehicle that was chosen for this was a Private Members’ Bill which became the Housing (Homeless Persons) Act 1977 (“the 1977 Act”), from which the provisions of Part VII of the 1996 Act are derived. Section 198(1) of the 1996 Act enables a housing authority which would otherwise be subject to the duty under section 193 to provide accommodation to a person who is homeless, if it considers that the conditions for referral are met, to refer his case to another authority. An equivalent provision for Scotland is to be found in section 33(1) of the 1987 Act. This section enables a local authority in Scotland, if corresponding conditions are met, to refer a homeless person’s application to another local authority in Scotland, England or Wales. It is the jurisdiction within which the area of the housing authority which has the primary responsibility lies that determines whether the Scottish legislation or that for England and Wales is applicable. The primary responsibility in the cases with which these appeals are concerned falls on the London local authorities, because it was to them that the applications were made. So the relevant legislation for the purpose of these appeals is that which is to be found in the 1996 Act.
- Section 198(2) of the 1996 Act provides that the conditions for the referral of the case to another authority are met if, among other things:
“(a) neither the applicant nor a person who might reasonably be expected to reside with him has a local connection with the district of the authority to whom his application was made,
(b) the applicant or a person who might reasonably be expected to reside with him has a local connection with the district of that other authority.”
The meaning which is to be given in this context to the phrase “a local connection” is to be found in section 199. Section 199(1) provides that a person has a local connection with the district of a local housing authority if he has a connection with it, among other things –
“(a) because he is, or in the past was, normally resident there, and that residence is or was of his own choice.”
The other grounds of connection mentioned in this subsection are employment there, family associations and special circumstances. The ground of local connection relied on by the London local authorities is residence. It is the phrase “of his own choice” in section 199(1)(a) that lies at the heart of the dispute.
37.In R v Eastleigh Borough Council, Ex p Betts  2 AC 613 the question was whether the respondents had a “local connection” with the appellants’ area within the meaning of section 18(1)(a) of the 1977 Act for the purposes of section 5(1) of that Act. These are the sections from which sections 199(1)(a) and 198(2) of the 1996 Act respectively are derived. Lord Brightman said at p 626 that “local connection” was not a defined expression, the effect of which was to entitle the reader to construe it by substituting “is or was normally resident in,” or “is employed in,” or “has family associations with” for the words “has a local connection with”. What section 18(1) did was to specify those factors alone upon which a local connection could be founded. The fundamental question was the existence of a local connection.
- Lord Brightman added these comments at p 627:
“In construing section 5 it is only to be expected that the emphasis falls on ‘local connection’, and not on past or present residence or current employment, etc. The Act is one which enables a homeless person in certain circumstances to jump over the heads of all other persons on a housing authority’s waiting list, to jump the queue. One would not expect any just legislation to permit this to be done unless the applicant has in a real sense a local connection with the area in question. I accept that ‘residence’ may be changed in a day, and that in appropriate circumstances a single day’s residence may be enough to enable a person to say that he was normally resident in the area in which he arrived only yesterday. But ‘local connection’ means far more than that. It must be built up and established; by a period of residence; or by a period of employment; or by family associations which have endured in the area; or by other special circumstances which spell out a local connection in real terms.”
- The case for the London local authorities is that the question whether a person has formed a local connection with a district on the basis of residence is one of fact, and that a person can form such a connection provided his act in moving to the district was voluntary or at least that he was content to remain there. They submit that it is legitimate to ask whether, while his claim for asylum was being determined, the destitute asylum-seeker has put down roots in the district where he was being accommodated. If there was evidence that this is so, and it was clear that his residence in the district was voluntary, it ought to be open to the local housing authority to consider whether a local connection had been established there. The view of the majority in the Court of Appeal was that residence in NASS accommodation was never to be regarded as residence of the applicant’s own choice:  1 WLR 1289, 1305, para 50 per Simon Brown LJ. But that went too far. It was wrong to say that this could never happen. The asylum-seeker always had a choice. He could take the accommodation that was offered to him and agree to remain where he was put. Or he could refuse the offer of support and accept the consequences. That was a matter for him. It was enough for the facts to be opened up for inquiry as to whether a local connection had been established that he was offered the accommodation and that he accepted it.
- It is, of course, right to say that the question whether a local connection has been established is ultimately one of fact. But the question whether the facts that are relied on to show that the asylum-seeker was normally resident in the district of his own choice are capable of satisfying this requirement is one of law. Facts that are incapable of satisfying it must be disregarded as irrelevant.
- It is accepted for the purpose of these appeals that the respondents were in the past normally resident in Glasgow. But section 199(1)(a) makes it clear that normal residence in the district on its own is not enough. Normal residence in the district is irrelevant unless, as section 199(1)(a) provides, “that residence is or was of his own choice”. It is the fact that the person resided there of his own choice that gives his normal residence in the district the character that it needs for a local connection with the district to be demonstrated. Each of the words in the phrase which I have quoted plays an important part in the analysis. It is not enough to show that the person was content to reside there, or that he went there voluntarily. Nor is it enough to show that he had a choice between going to the place chosen for him by NASS and staying where he was when the offer was made. The statutory language does not permit that approach. What it requires is that he chose to live in that particular district. The choice to live in that particular district must have been his own choice, and not one that was dictated to him by the choice of someone else.
- It is clear beyond any doubt that the destitute asylum-seeker has no choice as to the locality in which support under section 95 of the 1999 Act is to be provided to him. The law and the practice are at one on this point. Section 97(2) requires the Secretary of State to disregard any preference that the supported person and his dependants may have about this. He may make it clear that he wants to remain in London, or he may make it clear that he wants to go to Glasgow. But, whatever his preference may be, it is to be disregarded. So far as the statute is concerned, the choice lies with the Secretary of State and with him alone. The approach which the statute takes is consistent with the White Paper which preceded it, “Fairer, Faster and Firmer: A Modern Approach to Immigration and Asylum” (Cm 4018) (July 1998). In para 8.21 of the White Paper it was stated that accommodation was to be provided on a no choice basis. In para 8.22 it was stated that asylum-seekers would be expected to take what was available, and that they would not be able to pick and choose where they were accommodated.
- In practice the choice is made by the case workers of NASS, having regard to arrangements made with local authorities under section 99 of the 1999 Act. The documents provided to the asylum-seeker make it clear that the offer of accommodation is made to him on the condition that he travels to the place that has been chosen for him by the case worker. The offer of support under section 95 comes to him as a package. It is available to him only in the dispersal area to which he is being sent. If he does not travel to that area, it will not be available to him. There is no right of appeal against the decision of the case worker, as section 103(7) which provides for appeals against location has not yet been brought into force.
- I do not see how it is possible in these circumstances to say that the choice which led to the asylum-seeker’s residence in the dispersal area was “his own” choice. This is not something that varies from case to case. All destitute asylum-seekers are treated in the same way by the scheme which NASS administers. They have a choice as to whether or not to accept the support that is offered to them, with the conditions that are attached to it. But that is all. All the other choices are made for them by the case worker. If they accept what is on offer, they go to the place where they are accommodated because they have been told to go there. So it can never be said, however content they may be thereafter to remain there, that “that residence” was of “their own” choice.
- Those who were responsible for taking the Bill through Parliament were aware that difficulties could arise between the local authority of the area where the person became homeless and the local authority of the area with which he had a prior connection. It became clear that the tests for showing that there was a local connection could give rise to practical problems in some cases. The way this was dealt with has been reproduced in the 1999 Act. Section 199(3) provides that residence in a district is not of a person’s own choice if he becomes resident there because he, or a person who might reasonably be expected to reside with him, is serving in the regular armed forces of the Crown or is detained under the authority of an Act of Parliament. Section 199(5) provides that the Secretary of State may by order specify other circumstances in which residence in a district is not to be treated as of a person’s own choice. He has not done so in the case of destitute asylum-seekers. But section 199(3) does not say that the categories which it mentions are exclusive. The tests which are to be applied in order to show that there is a local connection are those set out in section 199(1).
- As the commentary on section 18 of the 1977 Act in Current Law Statutes Annotated 1977 points out, the reference to the armed forces was put into the Act largely as the result of a speech during the consideration of the standing committee’s amendments by Mr P Viggers MP, who was the Member of Parliament for Gosport: (Hansard (HC Debates), 8 July 1977, vol 934, cols 1696-1700). He drew attention to the fact that some 3,500 families left Portsmouth Home Command each year. A large number of local authorities were ignoring ministerial advice that sympathetic consideration should be given to their claim to be accommodated in the localities in which they lived before joining the forces. He said that it was unreasonable that Gosport should shoulder the burden of looking after all these families who might be homeless. The opportunity was taken to deal also with persons who happened to be resident in an area because they were being detained there. But it should be noted that these cases were not free from difficulty. It is possible to envisage circumstances in which it might be argued that persons mentioned in section 199(3) were resident in those districts of their own choice – because they had asked to be posted to Gosport, for example, or had asked to be moved to a different prison. The effect of the subsection is to eliminate the possibility of such an inquiry in those cases.
- That possibility is absent, however, in the case of the destitute asylum-seeker. He has no choice as to the locality in which support is to be provided to him while he remains an asylum-seeker. Any preference which he may express to be accommodated in a particular district must be disregarded. So his case does not need to be provided for expressly by the statute. The system is such that in no case can it be said that a destitute asylum-seeker has a local connection with the district where he is accommodated on the ground that he is, or was, normally resident there. It may be possible to show, on the facts, that he has a local connection on one of the other grounds mentioned in section 199(1). But it will never be possible to do so on the ground of normal residence.
- For these reasons, and those given by my noble and learned friend Lord Bingham of Cornhill whose speech I have had the advantage of reading in draft and with which I agree, I too would dismiss these appeals.
LORD SCOTT OF FOSCOTE
- The issue in these two appeals is whether the respondents, Mr Al-Ameri and Mrs Osmani, were resident in Glasgow of their “own choice”. Each of them arrived in this country as an asylum seeker. Mr Al-Ameri was accompanied by his wife and two children. Mrs Osmani was accompanied by her two young sons. Each, after arrival, applied to the National Asylum Support Service (‘NASS’) for accommodation and subsistence while their respective asylum applications were being considered. Each would have preferred accommodation in London or the South-East but each was offered accommodation in Glasgow. Each was informed by letter that if the offer of accommodation in Glasgow were not accepted, no alternative offer would be made. Each was warned, also, that if the offer of accommodation in Glasgow were not accepted all NASS support might be withdrawn.
- In the circumstances it is hardly surprising that the offers of Glasgow accommodation were taken up. The asylum seekers, with their families, travelled to Glasgow, by means of travel vouchers provided by NASS, and went into occupation of the accommodation in Glasgow that they had been allocated. The subsistence support from NASS was provided to them in Glasgow.
- Mr Al-Ameri and family arrived in Glasgow on 23 May 2001. On 26 June 2001 Mr Al-Ameri’s application for asylum as a Geneva Convention refugee was refused but nevertheless he was granted exceptional leave to enter the United Kingdom. As from that date he was no longer an asylum seeker and no longer entitled to be provided with accommodation and subsistence by NASS. He was entitled to remain in the United Kingdom, to live wherever he chose, to seek work and to claim social security benefits and housing accommodation under the respective statutory schemes applicable to those benefits. The relevant papers establishing his right to work were not, however, sent to him until February 2002. On 6 March 2002, some eight months after he had been given exceptional leave to remain, Mr Al-Ameri gave up his occupation of the Glasgow accommodation that had been provided to him by NASS and took his family to London. He applied to the Royal Borough of Kensington and Chelsea for housing accommodation as a homeless person pursuant to section 193 of the Housing Act 1996. The Royal Borough accepted that he was homeless and was not intentionally homeless. But they took the view that because of his residence in Glasgow he had a “local connection” with Glasgow and that the obligation to provide housing for him and his family could be transferred to Glasgow City Council pursuant to section 198 of the Act.
- The facts regarding Mrs Osmani follow similar lines. She and her sons arrived in Glasgow in February 2001. A letter dated 3 May 2001 from the Home Office Immigration and Nationality Directorate informed her that her status as a refugee had been accepted and that she had been granted indefinite leave to remain in the United Kingdom. The leave she had been granted brought to an end her status as an asylum seeker. As in the case of Mr Al-Ameri she became entitled to live wherever she chose in the United Kingdom and to obtain work. She was told that she would be contacted about leaving her Glasgow accommodation. But nobody did contact her and eventually, in September 2001, she handed in her keys to the Glasgow City Council and went with her two sons to London. She applied to the London Borough of Harrow for housing under the 1996 Act. Harrow accepted that she was homeless and not intentionally so but, as Kensington and Chelsea had done in the case of Mr Al-Ameri, formed the view that her residence in Glasgow had given her a “local connection” with Glasgow that enabled them, Harrow, to require the Glasgow City Council to accept the obligation of housing her.
- Section 198 of the Act allows a local housing authority to whom an application by a homeless person for housing has been made to refer the application to another local housing authority if certain conditions are met. One of these conditions is that “the applicant … has a local connection with the district of that other authority (see section 198(2) of the 1996 Act). Section 199 describes what is meant by a “local connection”:
“(1) A person has a local connection with the district of a local housing authority if he has a connection with it—
(a) because he is, or in the past was, normally resident there, and that residence is or was of his own choice; ….”
The full statutory framework has been set out in the opinion given by my noble and learned friend Lord Bingham of Cornhill. I need not repeat it for the only issue before your Lordships for decision is whether Mr Al-Ameri’s and Mrs Osmani’s respective residence in Glasgow was “of [their] own choice” for the purpose of section 199(1)(a). It is accepted that they were “normally resident” there.
- If an asylum seeker who would have preferred to live elsewhere has travelled to the district in which NASS have offered him or her accommodation and has taken up residence in that accommodation under the threat from NASS that if he or she fails to do so all NASS support, both for accommodation and for subsistence, will or may be withdrawn and he or she may be placed in detention, an answer to the question whether the asylum seeker has taken up residence in that district of his or her own choice does not seem to me to be a difficult one. In such a case it would, in my opinion, be a misuse of language to say that the district in which the asylum seeker had taken up residence was the district of his or her own choice. And so long as the constraints on moving to reside elsewhere remain, ie the loss of accommodation and subsistence support and the liability to be placed in detention, it seems to me impossible to say that the individual is residing in the district of his or her own choice.
- Mr Underwood QC, counsel for the appellants, the two local authorities, submitted that every voluntary act, every conscious decision, involved a choice. The individual could, whatever the adverse consequences might be, have decided not to do the act in question, or have made some other decision. There is certainly a sense in which counsel is right. If a condemned man walks to the scaffold, not wishing to be dragged there by force, there is a sense in which it could be said that he has chosen to do so. But only a pedant would say that he had gone to the gallows of his own choice. The most that could be said is that he had decided it would be preferable to walk than to be dragged. To that extent he had made a choice.
- This example makes, I hope, the point that if a question arises whether some act has been done or some state of affairs has come about of an individual’s own choice, it is necessary, before answering, to be clear and precise about what it is that the choice is directed to. In the example, the choice, if there is one, is not directed to what is to happen on the gallows; it is directed to the means by which the condemned man is to get from his cell to the scaffold. Section 199(1)(a) asks the question whether residence in a particular district was of the individual’s own choice. The question asks whether the individual chose that particular district to be the district of his or her residence. It is directed to the choice of the district. It seems to me clear on the evidence that neither Mr Al-Ameri nor Mrs Osmani chose Glasgow. Glasgow was chosen for them by NASS. The circumstance that each of them decided to travel with their respective families to Glasgow and to take up residence there rather than to expose themselves to the privation and uncertain future that would have followed upon their failure to do so may be represented as a choice. But it was not the choice that section 199(1)(a) is directed to.
- Provided that the decision maker, faced with answering a section 199(1)(a) question, concentrates on asking whether it was the applicant who chose the district in question, rather than some other person who made the choice, the answer is a question of fact. So long as the individual remains an asylum seeker and subject to the severe constraints to which I have referred, the fact that he or she had remained in the allocated accommodation would not, in my opinion, justify a conclusion that he or she had remained in the district of his or her own choice. But once the asylum seeker status had come to an end and the statutory constraints on asylum seekers had ceased to be applicable, the erstwhile asylum seeker’s continued residence in the same accommodation might, in association with other relevant circumstances, justify a conclusion on the facts that residence in the district had become residence there of his or her own choice. This is a factual issue that does not arise in either of the present cases. Mr Al-Ameri stayed on at his Glasgow residence for about eight months after being granted exceptional leave to enter this country. Mrs Osmani stayed on at her Glasgow residence for four or five months after being granted indefinite leave to remain in this country. But in relation to neither of them was it suggested that if their residence in Glasgow had not previously been of their own choice it had become so by reason of their staying-on. There must, however, in my opinion, come a point at which an erstwhile asylum seeker’s continued residence in the accommodation to which he or she was directed by NASS might constitute residence in that district of his or her own choice. Your Lordships ought not, in my opinion, to be taken to be holding that because residence by an asylum seeker in a particular district was not originally residence there of the asylum seeker’s choice it could not subsequently become so by continued residence after the asylum seeker status had come to an end. Any such question would depend on the facts of the particular case.
- I have had the advantage of reading in advance the opinions of my noble and learned friends Lord Bingham of Cornhill and Lord Hope of Craighead. For the reasons they have given, with which I am in full agreement, and for the supplementary reasons in this opinion, I concur in their conclusion that these appeals should be dismissed.
LORD WALKER OF GESTINGTHORPE
- I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Hope of Craighead. I agree with them and for the reasons which they give I too would dismiss these appeals and make the orders proposed by Lord Bingham of Cornhill.