Council must house unemployed EU migrants

Castelli and another v Westminster City Council; Court of Appeal (Lord Justice Staughton, Lord Justice Evans and Lord Justice Swinton Thomas); 21 February 1996

A housing authority was under a statutory duty to house nationals from other European Union countries who, having entered the United Kingdom lawfully in order to seek work, were no longer entitled to remain but had not been told to leave, and who were now unemployed and homeless.

The Court of Appeal allowed appeals by Gaudenzio Castelli and Jose Tristan- Garcia from the decision of Roger Henderson QC, sitting as a deputy High Court judge, and granted their applications for judicial review to quash decisions by Westminster City Council, in April and June 1995, refusing to provide them with temporary accommodation as homeless persons. But the council was granted leave to appeal to the House of Lords.

The applicants were both nationals of other EU states, Castelli from Italy and Tristan-Garcia from Spain. Both were single men now in their thirties. Both had lawfully entered the country without leave, since they came within the definition of "qualified person" in article 6 of the Immigration (European Economic Area) Order 1994 (SI 1895) as EEA nationals seeking work in the UK. Castelli sought to become a self-employed businessman, while Tristan-Garcia, who had been employed in the UK during a previous stay, was a "worker" within the meaning of article 48 of the EC Treaty, which guaranteed freedom of movement of workers. The right to remain in the host state continued for so long as a person could show he was actively seeking employment.

Both were HIV positive and had suffered periods of sickness since coming to the UK. Castelli had been unable to set up a proposed recycling business and had run out of money and become involved in drug-taking. Tristan-Garcia had likewise obtained no paid employment; he received income support, housing benefit and disability allowance.

Both applied for accommodation as homeless persons under sections 62 and 63 of the Housing Act 1985 but were refused by the council on the ground that they were not persons to whom the council owed a duty as a housing authority.

In each case, the judge found that at the time they made their housing application, they had ceased to be "qualified persons" within article 6. Neither had applied for or been granted leave to remain in the UK; yet in neither case had the Home Secretary decided, as he had power to do under article 15(2) of the 1994 Order, that they should be removed from the country. The question was whether, in such circumstances, the council was under a duty to house them.

Nicholas Blake QC and Jan Luba (Bindmans, and Immunity Legal Centre) for the applicants; John McDonnell QC and Clive Hugh Jones (Legal Dept, Westminster City Council) for the council.

Lord Justice Evans rejected the council's contention that persons who no longer had a right of abode or permission to remain in the UK ceased to be persons, meaning persons lawfully here, for whose benefit the homelessness provisions of the Housing Act were enacted.

The Immigration Acts and regulations made under them were intended to regulate the status of non-British European nationals in accordance with the UK's treaty obligations. It was not necessary to regard an individual as "not lawfully here" during the period when the exemption from immigration restrictions provided under EU law had ceased to apply and the statutory procedures for determining immigration cases were being or could be operated.

It was sufficient to hold that a European national who had, or might have, ceased to be a qualified person in fact, but who had not been given or had overstayed a limited leave to remain and had not been informed that the Secretary of State had decided he should be removed, did not belong to a category of persons "not lawfully here" who were not to be regarded as "persons" for the purposes of sections 62 and 63 of the Housing Act.

There was no obligation on such persons under the immigration laws to apply for leave to remain, limited or otherwise, and they could not properly be regarded as being in breach of the immigration laws by reason of their failure to do so.

Lord Justice Staughton and Lord Justice Swinton Thomas concurred.