Judge hands down ruling on effect of withdrawal agreement on homeless applicants who are former EU nationals

A Slovakian national has won a case against the London Borough of Islington over whether his status under agreements between the UK and the European Union entitled him to homelessness support.

His Honour Judge Saunders, siting at Central London County Court, found for the appellant on two of three grounds argued and ordered a change in the council’s decision.

Outlining the case, the judge said: “This appeal is significant in that, rather than dealing with issues such as suitability or priority need, as would normally be the case in such appeals, it deals with some important questions about the effect of legislation governing the UK’s departure from the EU, contained in the [Withdrawal Agreement] and the application of the Charter of Fundamental Rights of the European Union with specific focus upon housing homeless applicants, in particular former EU nationals who have remained in the UK following the UK’s departure.”

Islington in September 2023 decided the appellant was ineligible for homelessness support based upon the application of section 185(1) and (2) of the Housing Act 1996, being a person from abroad who did not fall within a prescribed class of persons.

After a period when the appellant slept rough, Islington had provided temporary accommodation but later considered he was ineligible for housing assistance, a conclusion confirmed by a review.

The judge said the Homelessness Code of Guidance for Local Authorities 2021 stated that provisions in section 7 (1) of the Immigration Act 1988 and the Asylum and Immigration Act 1996, had been saved so as to protect the rights of EU citizens with rights under the withdrawal agreement.

Islington assessed the appellant’s application on the basis that, as a person with settled status, he should demonstrate that he was either a worker, self-employed, an accession state national who has acquired worker authorisation or a family member of someone in one of these three categories.

The council concluded he could not, and that his claim to be self-employed was bogus.

It further determined there had been no breach of his rights as to dignity or non–discrimination as he received Universal Credit and so did not lack means.

The appellant subsequently started a web design business and his solicitors argued to Islington that he was now eligible because of his employment, but the council retained its stance.

There were three grounds of appeal argued. Ground 1 was that the review decision was discriminatory, Ground 2, that it was in breach of the charter and Ground 3 that the council was wrong in deciding that the appellant was not self-employed.

Islington responded that the relevant articles of the withdrawal agreement did not apply if an EU citizen lacked worker or self-employed status or is not otherwise self-sufficient and that the appellant did not have self-employed status on the facts of this case.

Judge Saunders said: “That, on the face of it, and consideration of the authorities, is a compelling argument.”

He questioned through whether two of the authorities cited - known as CG and Dano - still applied.

The judge said the withdrawal agreement superseded any previous articles and consequently any authorities which flowed from interpretations of those.

Matters were now governed by the EU Settlement Scheme which confers non-discrimination rights which are not conditional.

He said the appellant had permanent settled status under the withdrawal agreement and therefore enjoyed the right of equal treatment with UK nationals in the provision of housing assistance

“The principal point is that the UK having accepted a constitutive scheme, must acknowledge the EU citizens’ rights under Article 18 of the withdrawal agreement, as it did not adopt a declaratory scheme, which it could have,” HHJ Saunders said allowing the first ground.

Granting the second ground, the judge said Islington argued the threshold for violation of the appellant’s rights has not been met because he was not particularly vulnerable or precluded from obtaining private accommodation by Universal Credit.

Also, his circumstances did not meet the minimum level of security required, he does not have children and so has no general right to housing, and had sufficient resources so his rights were not violated.

HHJ Saunders said Islington asserted that there can be no breach of the charter because the appellant received Universal Credit.

“That is a bold statement but the respondent considers that sufficient,” he said. “In my view, that approach is wrong for several reasons.”

He said the review decision did not consider the potential outcome for the appellant if he was not provided with assistance and granting Universal Credit “cannot mean…that the appellant can almost inevitably avail himself of an ability to provide housing for himself.

“That must be wrong. As just one example to the contrary, it does not resolve the difficulty of obtaining a deposit in private sector accommodation, and the likely cost – particularly if accommodation is sought in London or in one of the other major cities of the UK.”

The judge said Islington neither posed nor answered the crucial question: “Does the grant of Universal Credit relieve the appellant of his ability to obtain housing?”

He rejected the third ground though noted this did not affect the outcome.

HHJ Saunders said there was no benefit to either side in him quashing the decision, which would only require Islington to remake it.

He said the appellant was eligible for assistance and so varied the council’s decision to reflect this.

Toby Vanhegan of 4-5 acted for the appellant, instructed by Dirghayu Patel at Lawstop Solicitors.

The Aire Centre and The 3Million Ltd were intervenors.

Mark Smulian