Information Note on the Court’s case-law No. 144
August-September 2011
Bah v. the United Kingdom - 56328/07
Judgment 27.9.2011 [Section IV]
Article 14
Discrimination
Refusal to take minor subject to immigration control into account when determining priority in entitlement to social housing: no violation
Facts – The applicant, a Sierra Leonean national, was granted indefinite leave to remain in the United Kingdom in 2005. Her minor son was subsequently allowed to join her on condition that he did not have recourse to public funds. Shortly after his arrival, she applied to her local authority for assistance in finding accommodation after her private landlord informed her that her son could not stay in the room she was renting. The local authority agreed to assist but, because her son was subject to immigration control, refused to grant her the priority to which her status as an unintentionally homeless person with a minor child would ordinarily have entitled her*. It did, however, help her find private-sector accommodation outside the borough and some seventeen months later provided her with social housing within the borough. Neither she nor her son were homeless at any time. In her application to the European Court the applicant complained that the refusal to grant her priority had been discriminatory.
Law – Article 14 in conjunction with Article 8: The impugned legislation had obviously affected the home and family life of the applicant and her son, as it had impacted upon their eligibility for assistance in finding accommodation when they were threatened with homelessness. The facts of the case therefore fell within the ambit of Article 8 and Article 14 was applicable.
The applicant’s son had been granted entry to the United Kingdom on the express condition that he would not have recourse to public funds. The applicant’s differential treatment under the housing legislation had thus resulted from her son’s conditional immigration status, not his national origin. The fact that immigration status was a status conferred by law, rather than one which was inherent in the individual, did not preclude it from amounting to “other status” for the purposes of Article 14. However, given the element of choice involved in immigration status, the justification required for differential treatment based on that ground was not as weighty as in the case of a distinction based on inherent or immutable personal characteristics such as sex or race. Likewise, since the subject matter of the case – the provision of housing to those in need – was predominantly socio-economic in nature, the margin of appreciation accorded to the Government was relatively wide.
It was legitimate to put in place criteria for the allocation of limited resources such as social housing provided such criteria were not arbitrary or discriminatory. There had been nothing arbitrary in the denial of priority need to the applicant. By bringing her son into the United Kingdom in full awareness of the condition attached to his leave to enter, she had effectively agreed not to have recourse to public funds in order to support him. It was justifiable to differentiate between those who relied for priority-need status on a person who was in the United Kingdom unlawfully or on the condition that they had no recourse to public funds, and those who did not. The legislation pursued a legitimate aim, namely allocating a scarce resource fairly between different categories of claimants.
Without underestimating the anxiety the applicant must have suffered as a result of being threatened with homelessness, the Court observed that she had never in fact been homeless and that there were other statutory duties which would have required the local authority to assist her and her son had the threat of homelessness actually manifested itself. In the event, she had been treated in much the same way as she would have been had she established a priority need: the local authority had helped find her a private-sector tenancy in another borough (owing to shortages within the borough) and had offered her social housing within the borough within seventeen months. The differential treatment to which the applicant was subjected had thus been reasonably and objectively justified.
Conclusion: no violation (unanimously).
* Section 9(2) of the Asylum and Immigration Act 1996, which was in force at the material time, provided that persons subject to immigration control were to be disregarded in determining whether another person had a priority need for accommodation.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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