Bah v United Kingdom  ECHR 1448 (27 September 2011)
The European Court of Human Rights has held that a person's immigration status is a relevant ground of discrimination under Article 14 of the European Convention of Human Rights. However, as a person's immigration status involves an element of choice, the ECHR held that the justification needed for differential treatment on this basis need not be as weighty as where differential treatment is based on an inherent characteristic such as sex or nationality.
The ECHR also held that the Housing Act 1996 (UK) pursued the legitimate aim of allocating limited social housing resources fairly between applicants, and that the UK was justified in differentiating between persons seeking priority need of social housing based on whether or not a person's immigration status prevented them from having recourse to public funds.
The applicant, Husenatu Bah, was a Sierra Leonean national who sought asylum in the UK. Although her asylum claim was rejected, she was granted indefinite leave to remain in the country. Her son later arrived in the UK subject to immigration control, on the condition that he must not have recourse to public funds. As the applicant's landlord was unwilling to accommodate her son, she applied to Southwark Council for housing assistance in February 2007 on the basis that she had become unintentionally homeless.
Under section 189 of the Housing Act 1996 (UK), an unintentionally homeless person with a minor would typically qualify for priority need of social housing. However, pursuant to section 185(4) of the Act, because the applicant's son was subject to immigration control, he was to be disregarded for the purposes of determining whether the applicant was in priority need. As such, the Council decided that the applicant did not qualify for priority need. This decision was upheld on review.
In September 2007, the Council helped the applicant to secure a private tenancy outside of Southwark. She remained on the waiting list for a social tenancy, and moved back to Southwark when one became available in May 2009. The applicant complained to the ECHH, alleging a violation of Article 14 of the Convention, taken in conjunction with Article 8.
Article 8 of the Convention relevantly provides that everyone has a right to respect for his or her home, and that a public authority shall not unlawfully or unnecessarily interfere with this right. Although Article 8 does not expressly provide a right to housing, the ECHR has previously held that where a State elects to provide housing benefits, it must do so in a manner that complies with Article 14. As such, the Court held that the applicant's complaint was within the ambit of Article 8.
Article 14 relevantly provides that the rights and freedoms set out in the Convention shall be secured without discrimination on any ground such as “national or social origin” or “other status”. Here, the applicant argued that she had been discriminated against based on her son's nationality. However, the Court held that the ground of distinction was actually her son's immigration status. While the UK argued that this was not a relevant ground of distinction, the Court considered that it could be brought within the reference in Article 14 to discrimination based on a person's “other status”.
In considering whether the applicant had been discriminated against on the basis of her son's immigration status, the ECHR stated that differential treatment will be discriminatory if there is no reasonable justification for it, i.e. if the treatment does not pursue a legitimate aim, or if the means employed to achieve this aim are not proportionate to the aim. The Court stated that as a general rule, where differential treatment is based on an inherent characteristic like nationality or sex, a State will have to present “very weighty reasons” to justify the treatment. However, given that the immigration status of the applicant's son involved an element of choice (the applicant elected to remain in the UK and chose to have her son join her), the Court held that the required justification need not be as weighty. The Court also noted that States enjoy a wide discretion on socio-economic matters such as the provision of social housing.
Applying these principles, the ECHR held that the imposition of criteria for allocating social housing is a legitimate aim, so long as these criteria are not arbitrary or discriminatory. The Court considered that there was nothing arbitrary about denying priority need status to the applicant based on the fact that her son's presence in the UK was conditional on him not having recourse to public funds, especially given that the applicant was fully aware of and accepted this condition of her son's entry into the UK.
The ECHR also held that the means used to realise this aim were not disproportionate. On this point, the Court was particularly influenced by the fact that even if the applicant had been determined to be in priority need of social housing, it would have made little difference because she would likely still have been temporarily housed in the private sector for several months until a social tenancy became available. Accordingly, the Court held that the differential treatment of the applicant was reasonably justified and that there was no violation of the Convention.
Relevance to the Victorian Charter
The ECHR's finding that a person's immigration status is a relevant ground of discrimination under the Convention is unlikely to be relevant to cases brought under the Victorian Charter. “Discrimination” is defined in the Charter to mean discrimination on the basis of an attribute set out in section 6 of the Equal Opportunity Act 2010 (Vic). Unlike the Convention, however, this list of attributes does not include “other status” or any other attribute that is likely to encompass a person's immigration status. However, the ECHR's comments that the weight of the reasons required to justify discriminatory treatment will vary according to whether the characteristic on which the treatment is based is inherent or involves an element of choice may offer some guidance when Victorian courts are required to consider the scope and application of the right to non-discrimination set out in section 8 of the Charter, and the circumstances in which this right may be limited under section 7(2).
The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2011/1448.html
James Kearney is a Law Graduate and Peter Haig is a Senior Associate with Allens Arthur Robinson.