Hines v London Borough of Lambeth, Court of Appeal - Civil Division, May 20, 2014, [2014] EWCA Civ 660

Resolution Date:May 20, 2014
Issuing Organization:Civil Division
Actores:Hines v London Borough of Lambeth
 
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Case No: B2/2013/1945

Neutral Citation Number: [2014] EWCA Civ 660

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CLERKENWELL AND SHOREDITCH COUNTY COURT

HIS HONOUR JUDGE JOHN MITCHELL

CASE No. 3EC00587

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 20/05/2014

Before:

LORD JUSTICE SULLIVAN

LORD JUSTICE PATTEN

and

LORD JUSTICE VOS

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Between:

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Mr Adrian Berry (instructed by Shelter Legal Services) for the Appellant

Mr Matt Hutchings (instructed by Lambeth Council) for the Respondent

Hearing date: 1ST May 2014

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JudgmentLORD JUSTICE VOS:

  1. Brandon Mossan (``Brandon'') was born on 2nd October 2008. He is now just over 5½ years old, but was 4¼ years old when the review decision that is in issue in this case was made by the respondent, the London Borough of Lambeth (``Lambeth'' or the ``respondent''). Brandon was born in the UK and is a British citizen. His mother is the appellant, Ms Maureen Hines (the ``mother'' or the ``appellant''), who is a Jamaican citizen who came to the UK in April 2002, but whose permission to remain in the UK expired in January 2009. Brandon's father is Nico Mossan (the ``father''), a national of the Côte d'Ivoire, who has the EU right to permanent residence in the UK. The father and mother no longer live together, and the mother is Brandon's primary carer, but Brandon spends about two nights a week with the father being cared for by him.

  2. The question in this second appeal is whether the appellant is entitled to housing assistance under the Housing Act 1996 (the ``1996 Act''). Ms Samuels (the ``reviewer''), Lambeth's official reviewer, made a review decision under section 202 of the 1996 Act on 25th January 2013 determining that the appellant was ineligible for housing assistance because she was subject to immigration control under section 185(2) of the 1996 Act. This decision was based primarily on the finding that the reviewer did not consider it an unreasonable expectation for the father to look after Brandon in the event of the mother leaving the UK due to her immigration status. On 25th June 2013, HH Judge Mitchell dismissed the mother's appeal under section 204 of the 1996 Act.

  3. Two issues have been raised on this appeal, for which permission was given by Arden LJ on 8th November 2013, namely:-

    i) Whether the judge ought to have applied a greater intensity of review in respect of the reviewer's decision, and

    ii) Whether, in considering whether the child would be unable to remain in the UK/EU if the mother were forced to leave the UK/EU, the judge ought to have considered whether it would be in the child's best interests to continue to reside in the UK/EU.

  4. It should first be noted that the appeal against the reviewer's decision was brought under sections 204(1) and (3) of the 1996 Act, which provide that the appellant may appeal ``on any point of law arising from the [review] decision'', and that the county court may confirm, quash or vary the reviewer's decision as it thinks fit. The second appeal to this court is effectively another appeal against the reviewer's decision, not simply an appeal against the judge's decision, and this court has the same powers as the county court had under section 204(3).

    The relevant regulations

  5. Regulation 15A(4A) of the Immigration (European Economic Area) Regulations 2006/1003 (the ``Immigration Regulations''), which was inserted with effect from 8th November 2012 by the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012/2560, provides for a derivative right of residence for primary carers of British citizens as follows:-

    ``(1) A person (`P') who is not an exempt person and who satisfies the criteria in paragraph (2), (3), (4) (4A) or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.

    ...

    (4A) P satisfies the criteria in this paragraph if--

    (a) P is the primary carer of a British citizen (`the relevant British citizen');

    (b) the relevant British citizen is residing in the United Kingdom; and

    (c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave''.

  6. The core question for the reviewer was that raised by regulation 15A(4A)(c) above, namely whether Brandon would be ``unable to reside in the UK or in another EEA State if [the mother] were required to leave [the UK]''.

  7. Regulation 15A(4A) was inserted to comply with the interpretation of the Court of Justice of the European Union (``CJEU'') of article 20 of the Treaty on the Functioning of the European Union (``TFEU'') in Ruiz Zambrano v. Office National de l'Emploie [2012] QB 265 (``Zambrano''), where the Grand Chamber of the CJEU held that:-

    i) Article 20 of the TFEU ``precludes national measures which have the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their...

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