The decision

KA and others (Public funds: housing) Iraq [2007] UKAIT 00081



Heard at: Glasgow (Eagle Building) Date of Hearing: 20 July 2007


Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Designated Immigration Judge Macleman




For the Appellants: Mr Byrne, of Drummond Miller
For the Respondent: Mr Mullen, Home Office Presenting Officer

Housing made available under any of the statutory provisions mentioned in sub-paragraph (a) of the definition of “public funds” in paragraph 6 of the Immigration Rules, whether or not in fulfilment of a duty to house homeless persons, is public funds, even where the tenure of the housing is governed by some other statute.


1. The appellants, a mother and her eight children, are citizens of Iraq. They applied to the respondent for entry clearance in order to allow them to settle with the sponsor, who is the first appellant’s husband and the father of the other appellants, in the United Kingdom. Their application was refused by notice of decision dated 23 August 2006. They appealed to an Immigration Judge, who allowed the appeal. The respondent sought and obtained an order for reconsideration. Thus the matter comes before us.

2. We are concerned with the accommodation available to the appellants. The requirements of the Immigration Rules are contained in paragraph 281 (the first appellant) and paragraph 297 (for the other appellants) of the Statement of Changes in Immigration Rules, HC 395. Paragraph 281(iv) requires the first appellant to show that:

“there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively.”

Paragraph 297(iv) imposes a complementary requirement in relation to the children.

3. There is no real dispute about the facts. The sponsor lives in a council house in Edinburgh. It is sufficient for his needs, but it would be overcrowded if the appellants joined him there. It is, therefore, not adequate accommodation. If the appellants came to the United Kingdom, the sponsor would need to obtain a larger house, with four bedrooms. He could not afford to pay the open market rent for such a house. But if he got a council house, it would cost about £30 per month more than he is currently paying, which he could afford. The Immigration Judge considered that the principal issue for him was whether such a house would be available to the sponsor. On the basis of the evidence before him, including a letter from the Housing Advice and Information Officer of the North Edinburgh local office dated 5 January 2007, he considered that there was “just sufficient to allow me to conclude” that at the date of the decision it was the case that adequate accommodation would be available to the appellants if they were admitted to the United Kingdom. The respondent’s application for reconsideration was on the ground that the letter to which we have made reference post-dated the decision and ought therefore not to have been taken into account, and that the position at the date of the decision was that there was no adequate accommodation available and no realistic prospect of there being such accommodation. At an earlier hearing it was pointed out by the Tribunal that there was a further difficulty, in that the accommodation proposed might amount to public funds within the meaning of the Immigration Rules, and therefore could not enable the appellants to establish that they would be adequately accommodated without recourse to public funds. Before us Mr Byrne on behalf of the appellants acknowledged that his principal task was to show us that substitute and larger council housing, obtained by the sponsor in order to house his family, would not amount to public funds.

4. Paragraph 6 of the Immigration Rules reads, in part, as follows:

“’Public funds’ means –
(a) housing under Part VI or VII of the Housing Act 1996 and under Part II of the Housing Act 1985, Part I or II of the Housing (Scotland) Act 1987, Part II of the Housing (Northern Ireland) Order 1981 or Part II of the Housing (Northern Ireland) Order 1988;
… .”

5. Mr Byrne very helpfully provided copies of Parts I and II of the Housing (Scotland) Act 1987 and also of Part 2 of the Housing (Scotland) Act 2001, together with a further production, consisting of a letter from the Legal Services Division of Edinburgh City Council, stating that:

“In the event that [the sponsor’s] family are admitted to the United Kingdom, the City of Edinburgh Council will offer him a Scottish secure tenancy. The provisions relating to secure tenancies are contained in the Housing (Scotland) Act 2001, Part 2.”

Mr Byrne’s submission was that the housing provided to the sponsor and to the appellants would be provided to them under the Housing (Scotland) Act 2001 not under the 1987 Act, and would therefore not amount to “public funds”.

6. As we indicated at the hearing, we are unable to accept that submission. Part 2 of the 2001 Act contains the provisions relating to Scottish secure tenancies, including provisions which have the effect that ordinary lettings of dwelling houses by local authority landlords are Scottish secure tenancies and are therefore subject to the terms of that Act. The 2001 Act does not, however, contain the local authorities’ powers to provide housing or to allocate it. Those are in the 1987 Act. Mr Byrne submitted that the provisions of Parts I and II of the 1987 Act are concerned solely with the homeless and others who have an urgent need for housing to be provided for them entirely at the cost of the authority. That does not appear to us to be right. Part I of the 1987 Act imposes on local authorities the duty to consider the needs of their areas and confers on them powers to provide housing accommodation by building, acquiring, converting, or improving houses and so on. That Part also contains supplementary provisions enabling local authorities to maintain housing lists for the allocation of housing, to make and publish rules and to make by-laws for a local authority’s houses. We were shown nothing to suggest that Scottish local authorities have power to obtain or retain a stock of council houses save by virtue of Part I of the 1987 Act.

7. Part II of the 1987 Act is headed “Homeless Persons”. It contains a number of provisions relating to the definition and housing of homeless persons. Importantly, it includes provisions for housing homeless persons either in properties owned by the council, or by the council paying for their housing in properties which it does not own (but which belong, for example, to a charity). Thus, as it seems to us, Parts I and II together contain the provisions which are the foundation of a council’s provision of housing to individuals: either it is provided from the housing stock which the council has under Part I, or it is provided by the council under the additional powers it has in relation to homeless persons under Part II. Mr Byrne’s suggestion that housing provided to the appellant would not be provided “under” the 1987 Act, because the terms of the tenancy would be governed by the 2001 Act is untenable: there could be no tenancy unless the council was enabled by the 1987 Act to have a house to let to the appellant. Mr Byrne further submitted that, given that Part I of the 1987 Act contains of itself no provisions relating to the letting of houses to council tenants, the mere fact that the 1987 Act gave the council power to maintain the housing stock could not mean that individual housing would be “under” the 1987 Act. But we do not think that there is any reason to suppose that the phrase used in paragraph 6 is not the appropriate one for describing council housing. Part I is headed “Provision of housing”, and s35(1)(a) (which is in Part II), for example, provides that a homeless person may be housed:-

“By making available accommodation held by [the local authority] under Part I”.

8. Whatever the terms of the tenancy, housing provided to a council tenant in Scotland from a housing stock acquired and maintained under Part I of the 1987 Act or provided to a homeless person in Scotland under the provisions of Part II of the 1987 Act amounts to “public funds” for the purposes of paragraph 6 of the Immigration Rules.

9. We observe, although it was, in the circumstances, not the subject of any submission before us, that the relevant provisions of the other enactments mentioned in paragraph 6 are to the same effect to those to which we were referred. They contain provisions enabling the relevant authorities to acquire and maintain a stock of housing and to allocate it, and provisions relative to the housing of homeless persons. Thus, in general, housing provided by local authorities and others whose powers derive from the legislation in question, whether or not for those who would otherwise be homeless, is “public funds” for the purposes of the Immigration Rules.

10. For the foregoing reasons the appellants have failed to establish that on arrival they would have available to them adequate accommodation without recourse to public funds. The Immigration Judge erred in law in determining the appeal in the appellants’ favour without proper regard to the provisions of the Immigration Rules. We substitute a determination dismissing their appeals.