London Borough of Barnet v Ismail and Abdi [2006]EWCA Civ 3838:

This was an appeal by the London Borough of Barnet against a decision requiring the Housing department to provide housing assistance to two EEA nationals. The respondents were originally from the Netherlands and present in the UK. They were in receipt of income support and so it was a matter of agreement that they were both habitual resident and economic inactive in the UK.

The Court of Appeal considered whether the respondents were ineligible for housing assistance as persons subject to immigration control for the purpose of s.13(2) the Asylum and Immigration Act 1996 or those excluded from support by way of regulation 3(1) (i) of the Homelessness (England) Regulations 2000.  The Court held that the true construction of s13(2) of the 1996 Act was that a person was subject to immigration control if he could not lawfully remain in the UK without leave. It acknowledged that an EEA national did not require leave to enter the UK under regulation 12 of the Immigration (EEA) Regulations 2000, but that under regulation 14 of the 2000 regulations only a qualified EEA national was entitled to reside in the UK without leave to remain under the Immigration Act 1971.

Given that EEA nationals now enjoy a right to reside in a host member state for up to three months without the need to establish that they are exercising an EU qualifying right of free movement, (following the implementation of the EU directive 2004/58, effective from the 30.04.06) it is likely that a local authority would be found to be in breach of their obligations to EEA nationals if they refused such housing assistance as was necessary within this initial three month period if this refusal was based solely on the person’s nationality. After the three month period however, the EEA national would have to establish that they qualified for continued provision as someone who was not excluded by virtue of the Homelessness (England) Regulations 2000 and that they are both habitually resident and  lawfully present in the UK.

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