Human Rights: Housing case law update
Allocations Schemes and the ambit of article 8: RR v Enfield [2024] EWHC 2501 (Admin)
This case concerned a judicial review challenge to Enfield London Borough Council’s (‘Enfield’) (‘LBC’) scheme to determine how social housing would be allocated, promulgated pursuant to Part 6 of the Housing Act 1996 (‘allocations scheme’) (‘HA 96’).
The claimant his wife and children were homeless applicants to Enfield to whom the main housing duty under section 193(2) of Part 7 HA 96 had been accepted. The claimant’s wife was disabled, experiencing “mobility problems, problems with her vision and dizziness” and “constant pain in her legs, lower back and pelvis”: §10.
Under Enfield’s allocations scheme, applicants under Part 6 HA 96 could be awarded between 0 and 1000 points, with those who score under 100 points being ineligible to bid for housing under the scheme, and those being awarded 1000 points being the applicants with the highest priority for allocations of social housing: §24. For those who are homeless, there are varying levels of points that can be allocated. Those who are owed the main housing duty and living in temporary accommodation can be awarded either 200 or 300 points. The claimant’s circumstances meant that he would be allocated 200 points as a result of his homelessness.
For those with health and wellbeing needs (including those with disabilities), there are three categories of needs: low, medium and high. For those with a high health and wellbeing need, where there is an urgent need to move, 1000 points are awarded under the allocations scheme and the applicant will be made a direct offer of social housing. For those with a medium need, where the individual’s need to move is less urgent and not life threatening but where their quality of life will deteriorate if they continue to live in their unsuitable conditions, they would be awarded 150 points: §30. If they have a low need, they would be awarded 50 points and would be ineligible to bid.
Usually, applicants would be awarded the category which would score them the highest level of points: §28. However, if a person is owed the main housing duty under Part 7 HA 96, then they cannot be placed in the health and wellbeing need category: §29. The effect is that there is a group of individuals with the protected characteristic of disability who cannot be awarded 1000 points for their urgent need to move due to health and wellbeing because they are owed the main homeless duty under Part 7 HA 96 and in temporary accommodation. The practical consequence was that that group would be less likely to successfully bid for social housing: §33. This is what the claimant sought to challenge: §32.
The focus of this article is Ground 4: The allocation scheme unlawfully discriminated against him in breach of art.14, European Convention on Human Rights, in conjunction with art.8. HHJ Walden-Smith dismissed the judicial review on ground 4.
For a claimant to rely on article 14 ECHR, the circumstances must fall within the ambit of another right. For example, in R (SC) v SSWP [2021] UKSC 26, the Supreme Court held at §41 that child tax credit fell within the ambit of both article 1 protocol 1 and article 8 ECHR, the latter because it is “designed to facilitate or contribute to family life, by supporting families with children”. HHJ Walden-Smith held that allocations schemes did not fall within the ambit of article 8 of the ECHR: §§58-59. She held that in “R. (on the application of Z) v Hackney LBC [2019] EWCA Civ 1099, the Court of Appeal held that the challenge to the local authority’s allocation scheme, brought by a family living in temporary accommodation, did not fall within Article 8.” HHJ Walden-Smith relied on a similar outcome that was reached in R. (on the application of H) v Ealing LBC [2018] P.T.S.R. 541. There, Davis LJ and Underhill LJ had not accepted that “there was a right to settled or permanent accommodation protected by or within the reach of Article 8”. Finally, HHJ Walden-Smith referred to Dixon v Wandsworth LBC [2007] EWHC 3075 (Admin) in which Michael Supperstone QC sitting as a deputy high court judge had decided that the reasoning in Kay v Lambeth London Borough Council [2006] 2 AC 465 concerning article 8 (evictions) was not applicable to the allocation of social housing under Part 6. It would, however, be engaged “when dealing with the accommodation allocated pursuant to Enfield’s obligations under Part 7 of the HA 1996”: §59.
I would submit that the human rights case law on allocations in England and Wales is at risk of failing to keep pace with Strasbourg case law: R v Special Adjudicator ex p. Ullah [2004] UKHL 26. There is a parallel between the provision of welfare benefits and the provision of social housing. Both are social rights. Both are intended “to facilitate or contribute to family life” and also to private life. While there is not “a right to settled or permanent accommodation” under article 8 as a freestanding right, where a state decides to provide social benefits, it must do so in a way that is compliant with article 14: Stec v United Kingdom (2006) 43 E.H.R.R. 47 at §55. This reasoning should extend to allocations schemes. In H, the Court of Appeal did not refer to Stec but did refer to Bah, in which Strasbourg held at §40 that article 8 and article 14 were engaged in relation to Part 7 HA 96: “as the court has previously held with regard to other social benefits, where a contracting state decides to provide such benefits, it must do so in a way that is compliant with article 14”. Nonetheless, the Court of Appeal decided that the allocation of social housing under Part 6 (not Part 7 with which Bah was concerned) did not fall within the ambit of article 8 because there was no case law to that effect. As to the reasoning in Dixon, the claimant relied on Kay which was a different context to the allocation of social housing (i.e. it was about eviction, loss of home). In Z, the Court of Appeal relied on H and Dixon, but were not referred to Stec or Bah in the skeleton arguments: see [2019] PTSR 2272. For those reasons, I would submit that Stec and Bah provide clear and constant jurisprudence which should extend to the allocation of social housing and that the outcome in RR is wrong on the ambit of article 8 issue. The key question in RR should have been proportionality. There was a difference of treatment and that needed to be justified.
Eligibility for homeless assistance and the right to dignity: Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307, Hynek v Islington LBC (2024) County Court at Central London
In Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307, Green LJ considered an appeal brought by the SSWP against a decision of the First-tier Tribunal (Social Entitlement Chamber) that the exclusion of an EEA citizen with pre-settled status but who did not have a right to reside (i.e. they did not have worker or self-employed status etc.) from claiming universal credit on the basis of her immigration status had breached her rights under articles 3 and 8 of the ECHR and article 1 (right to dignity), 4 (equivalent of article 3 ECHR), 7 (equivalent to article 8 ECHR) and 24 (rights of the child) of the Charter of Fundamental Rights of the European Union (“The Charter”). Green LJ held that articles 1, 4, 7 and 24 of the Charter applied in domestic law because they were incorporated into the Withdrawal Agreement between the UK and EU and applied directly via section 7A of the European Union (Withdrawal) Act 2018.
Green LJ held (this is not meant to be a comprehensive summary of the decision) that article 1 is a free-standing right under the Charter: §105. The test to apply for determining whether there is a breach of article 1 is whether a refusal to grant social assistance would lead to an “actual and current risk” of a person being deprived of their “most basic needs” which included “accommodation, food, clothing, and hygiene and the means to secure them”: §111, §§151-157. Reference was to be had to the circumstances in CG [2021] 1 WLR 5919, in which the CJEU held a breach of articles 1, 4, 7 and 24 had occurred in relation to the SSWP’s refusal to award universal credit to (i) a mother of two young children; (ii) who had no resources to provide for her own or her children’s needs; and (iii) who was isolated because she had been forced to flee a violent partner. Thus, there was to be a “relatively narrow compass and focus upon: the availability of means and resources to meet needs (which would include accommodation); the degree of isolation; and, the degree of dependency of children. The provision of accommodation, such as access to a refuge, will not be treated as sufficient if it is merely temporary”: §112. The assessment is to be individualised by reference to an individual’s needs: §§146-150.
While Green LJ held that the test under article 1 of the Charter was different to that under article 3 ECHR, Green LJ did not decide whether article 1 of the Charter could be breached in factual circumstances where there was not a breach of article 3 ECHR because the First-tier Tribunal had also found a breach of article 3 ECHR so this was not material on the facts: §113, §§177-179. The Court of Appeal held that the First-tier Tribunal and Upper Tribunal had not erred in law in determining that there was a breach of articles 1, 4 and 7 of the Charter and dismissed the SSWP’s appeal. The Supreme Court refused permission to appeal: §180.
It was not long before article 1 cases came before the courts in respect of the eligibility rules for homelessness assistance under Part 7 HA 96. In Hynek v Islington LBC (2024) County Court at Central London, HHJ Saunders considered whether there had been a breach of article 1 in respect of a homeless applicant who did not have a right to reside in the UK. This was a case in which I was instructed for Islington LBC as junior to Andy Lane. It was agreed between the parties that the reasoning in SSWP v AT applied to Part 7 HA 96 in determining eligibility. HHJ Saunders agreed: “It must be the case that that a respondent local housing authority must consider, as a matter of right, whether a finding that an applicant is ineligible for housing in accordance with section 185 (2) of the Act would result in a breach of his rights under the Charter. That appears to be confirmed by AT”: §103.
The key question was whether the Charter rights had been breached on the facts. The appellant had been forced to sleep in a park and “sofa-surf” as a result of the refusal to provide assistance under Part 7. HHJ Saunders held that the assessment of whether there was a risk of a violation of his rights under article 1 of the Charter was to take place “before the circumstances arise where there might be a loss of dignity”: §106(d). Further, he followed SSWP v AT that there was to be an individualised assessment which is a duty to provide an individualised outcome: §§108-109. HHJ Saunders accepted that individuals who have been granted pre-settled status had very little recourse should their application for homelessness be refused: §116. Nonetheless, Islington LBC had decided that there was not a breach of article 1 because the appellant was in receipt of universal credit: §121. This was wrong in law because it did not apply the individualised assessment required: §122. Universal credit was “not a universal panacea” and did not assist with other obstacles to obtaining housing such as “the difficulty of obtaining a deposit in private sector accommodation”: §123. Nor was there a formal assessment of article 1 (see §124) nor sufficient detail (§see 125). For those reasons, HHJ Saunders held that Islington LBC had failed to carry out the assessment required by article 1 of the ECHR.
It is by now clear that when making eligibility decisions under Part 7 H A 96, it is necessary for local authorities to consider whether there will be an actual and current risk of a violation of articles 1, 4 and 7 of the Charter. For decision makers applying this case law to the facts of a particular case, it will be helpful to have regard to the DWP guidance on Charter assessments. For housing caseworkers assisting those who wish to rely on their rights under the Charter, CPAG have provided helpful resources online.
Suitability and articles 8 and 9 ECHR: Ghaoui v London Borough of Waltham Forest [2024] EWCA Civ 405 and RMO v Secretary of State for the Home Department [2024] EWHC 1826 (Admin)
This was a second appeal against a decision of a recorder on an appeal under section 204 of Part 7 HA 96. It concerned the suitability of accommodation offered pursuant to the main housing duty under Part 7. The appellant, who had previously been living in Waltham Forest LBC’s area, had been offered temporary accommodation, and then made a private rented sector offer, in Harlow. The consequence of these offers was that her child would need to enrol in a mutli-faith, rather than Muslim, school. The appellant challenged the decision on the basis of article 9, “the right to freedom of thought, conscience and religion” and “to manifest his religion or belief, in worship, teaching, practice and observance”.
Peter Jackson LJ held that suitability is a question for local authority housing officers with reference to all relevant factors and with weight accorded each factor according to their professional judgment: §35. While homelessness decisions may engage rights under ECHR, “instances where a decision designed to relieve homelessness will amount to a violation will surely be very rare”: §36. The “lawful application of a proper definition of suitability to the circumstances of the case” was capable of ensuring compliance with article 9 ECHR: §36. The decision maker considering the section 202 review was not required to “engage in a structured human rights analysis rather than an ordinary exercise of identifying and weighing up relevant factors”: §37. When the matter was considered by the recorder on appeal, she “was entitled, indeed right, to reach that conclusion on the facts of this case for the reasons she gave: the Appellant had no right to expect the Respondent to place any particular weight on his religiously-motivated choice of school, and certainly not such weight as would be necessary to result in a more convenient property. The question of justification therefore did not arise. Had it done so, the Appellant would likely have faced an insuperable task in showing that his faith-based preference should give him priority over other homeless persons”: §38. For that reason, the ground of appeal relying on article 9 ECHR failed.
It follows that where there exists a detailed legal framework on suitability, such as that under Part 7 HA 96, articles 8 and 9 will be given effect by the lawful application of that framework. However, the situation is different in the context of non-mainstream housing, where there is not a similarly detailed legal framework on suitability. In RMO v Secretary of State for the Home Department [2024] EWHC 1826 (Admin), an asylum seeker, who was formerly “a lecturer at an educational institute in Iraq, where he taught Kurdology, a multidisciplinary academic subject exploring Kurdish history and culture” (see §9), had been provided with accommodation in Norwich under section 95 of the Immigration and Asylum Act 1999: §10. The claimant secured a scholarship granted by the University of Sanctuary scheme operated by the University of East Anglia and was accepted onto a 12-month full-time Master’s degree course in Modern History: §11. The Home Office had confirmed to the University that the claimant was permitted to study there. Two months into his studies, the SSHD served a notice to quit on the claimant indicating that he was being moved to Walsall: §13. The consequence was that there would be “huge ramifications on his ability to continue” his Master’s: §13. The SSHD decided that “there were no compelling circumstances that made it appropriate to agree to his request”: §14.
The claimant brought a judicial review of that decision arguing, alongside irrationality, that there had been a breach of article 8. The SSHD and claimant were in agreement that “Article 8 is capable of being engaged in a case such as this”: §49. Dexter Dias KC sitting as a deputy high court judge agreed that article 8 was capable of being engaged because “a student’s involvement with their course and their college can itself be an important aspect of their private life”: see RMO at §51 citing Ahsan v The Secretary of State for the Home Department [2017] EWCA Civ 2009 at §86. Similarly, in CDS (PBS: “available”: Article 8) Brazil [2010] UKUT 00305 (IAC), Blake J held “people who have been admitted on a course of study at a recognised UK institution for higher education, are likely to build up a relevant connection with the course, the institution, an educational sequence for the ultimate professional qualification sought, as well as social ties during the period of study. Cumulatively this may amount to private life that deserves respect”: see RMO at §52. Dexter Dias KC noted that “the claimant was not admitted to the United Kingdom to undertake a “course of study” but has started one while awaiting the determination of his asylum claim”, so it was not directly analogous, but that “during study the kinds of ties and institutional and personal connections may develop that may begin to found an Article 8 claim”: §53. For those reasons, “the claimant’s Article 8 rights are plainly capable of being engaged”: §53. However, the SSHD had not engaged with “any consideration of the important question of whether the claimant’s Article 8 is engaged”, nor with any proportionality analysis: §53. Dexter Dias KC declined to carry out a proportionality assessment himself, because he had already allowed the judicial review claim on the first ground: §55. However, the remedy granted to the claimant included a mandatory order that the SSHD consider “Whether the claimant’s Article 8 rights are engaged, and if so, what is the defendant’s proportionality analysis”: §60(3)(b).
In my view, the reasoning in RMO is persuasive. Where there is not a detailed definition of suitability to apply, such as is the case with sections 4, 95 and 98 of the Immigration and Asylum Act 1999, schedule 10 of the Immigration Act 2016, or section 17 of the Children Act 1989, article 8 consideration take on greater relevance for determining whether an offer of accommodation has been suitable. Sufficient and continuous links established to a particular place, as protected by article 8, such as employment, education, or healthcare, would be taken into account by application of the relevant legal framework under Part 7. However, in absence of that framework, article 8 creates an obligation for consideration to be given to those particular circumstances. This is the procedural obligation under article 8 which places on the decision-maker a duty to take into account a person’s circumstances insofar as they are protected by that right.
Planning enforcement, housing and social services: Simonova v Bulgaria (2024) 78 E.H.R.R. 5
On the topic of a decision-making process providing sufficient protection to article 8 ECHR, Simonova v Bulgaria (2024) 78 E.H.R.R. 5 is a case in which the execution of a demolition order of a home constructed in breach of planning control was found to have breached article 8. The applicant had purchased part of a plot of agricultural land and obtained planning permission to construct a service building. However, after the building was completed, at some point, the applicant and her children started living in it. In 2014, following a complaint by a neighbour, the local authority responsible for planning control inspected the building and determined that it was unlawful and ordered that it be demolished. There were three reasons given for this decision. First, the building stood on land belonging to someone else. Second, there was no evidence that the building complied with building regulations. Third, planning permission had been granted for the building to be used for agricultural, not residential, purposes. However, the first demolition was quashed by the Plodiv Administrative Court on an application for judicial review.
A further complaint was made in 2015 and, following an inspection, the local authority determined for the same reasons that the building should be demolished. The Plodiv Administrative Court upheld the demolition order. In 2016, social services indicated to the applicant that, if she did not find alternative accommodation that she and her children could occupy following the demolition of the building, her children would be placed in care. Informal meetings were arranged to attempt to reach an agreement between the applicant and social services, but the applicant had not attended these. The demolition was planned to be carried out on 30 August 2017. Social services decided that they would take the applicant’s children on 29 August 2017. The building was demolished on 17 November 2017.
As to whether article 8 was engaged, the European Court of Human Rights (‘Strasbourg’) held that the building was being used for residential purposes for a period of a year and that that was “long enough to accept that the applicant’s links with the building were sufficient and continuous, so that it qualified as her “home”: §31. There was no evidence that she had a home elsewhere: §31. It followed that article 8 applied: §32.
The Bulgarian government had argued that the applicant had failed to exhaust her domestic remedies because she had not expressly relied on article 8 of the ECHR or stated that the demolition order would be disproportionate: §33-34. Strasbourg held that it was not necessary for the applicant to have expressly referred to article 8. What mattered was that she “stated that she had four minor children with whom she lived in the building” and the domestic court had considered the necessity of the demolition, referring to Yordanova (the first case in which the Court found a breach of Article 8 of the Convention in respect of Bulgaria in relation to the proportionality of an eviction order): §35.
As to the merits, Strasbourg accepted that the interference with article 8(1) was in accordance with the law and sought to achieve a legitimate aim: §§46-47. However, the key question was whether the interference had been “necessary in a democratic society”. Strasbourg reiterated two key principles at §48:
- They require that people who stand to lose their only home as a result of its planned demolition must be able to seek and obtain – at some point in the proceedings which lead to the demolition – a proper examination of its proportionality in the light of their individual circumstances; and that
- It would only be in exceptional cases that such people would succeed in raising an arguable claim that demolition would be disproportionate in their specific circumstances.
On the facts of this case, the demolition order had breached the applicant’s rights under article 8. First, the demolition order itself “did not contain any analysis of whether it would disproportionately affect the applicant in the light of her own particular circumstances”: §50. Nor was there external evidence of the deputy mayor seeking to weigh the aim pursued against the applicant’s individual circumstances: §50.
Secondly, when the matter was challenged by judicial review, the Plovdiv Administrative Court had “confined its reasoning on the point to the observation that the social services had been informed of the applicant’s family situation, and to remark that her case was different from Yordanova”: §51. The court did not have regard to all factors capable of bearing on the proportionality of the interference nor did it “attempt to balance the applicant’s interest in continuing to live in the building with her children against the considerations militating in favour of its demolition”: §51. There were factors in this case that pointed in favour of demolition, but, equally, there was a “powerful argument” that steps would need to be taken to “alleviate properly the serious hardship flowing from” demolition, such as the applicant and her children become homeless: §51.
Thirdly, the government’s argument that there had been “de facto” assistance offered to the applicant was insufficient because “those attempts by the authorities to find a solution to the applicant’s housing problem did not take place within a formal procedure entailing a comprehensive review of the proportionality of the interference in the light of her individual circumstances”: §53. Further, social services’ “only definite proposal appears to have been to temporarily place her children in accommodation run by the social services”: §53. For those reasons, there was a breach of article 8: §54.
This case forms a part of clear and constant jurisprudence as to the extent of the protection provided by article 8 in relation to those who are in unlawful occupation of land. This decision is interesting for three reasons. First, it shows that, when planning authorities are taking enforcement action against a person’s only home, they need to balance the hardship that would be caused with the legitimate aim being sought. Secondly, it shows that a defective decision-making procedure can lead to a breach of article 8. As mentioned above, this will be particularly relevant in circumstances where there is not a detailed legislative scheme ensuring that an individual’s particular circumstances will be taken into account. Thirdly, it shows that it is possible for legal representatives to raise human rights arguments at a later stage in the process, perhaps as an error of law or grounds of appeal, provided that the facts that give rise to the article 8 breach were stated to the decision-maker or court.
Direct discrimination in regeneration projects: Slagelse Almennyttige Boligselskab, Afdeling Schackenborgvænge (Case C417/23)
The final case is before the Court of Justice of the European Union, but the final decision has not yet been given. However, Advocate General Ćapeta handed down her opinion on 13 February 2025. This is a case which concerned the regeneration of public housing. The Kingdom of Denmark had introduced legislation: the Law on Public Housing. The legislation identified three types of public housing areas. First was a “vulnerable housing area” which included residents who, among other things, were not participating in the labour market or education, had been convicted of various crimes, who had not been educated beyond primary education, and where individuals were on low income: §6. There were various percentages that were applicable for each category. Second was a “parallel society” which had formerly been referred to as a “ghetto”. This was where the social economic criteria above was satisfied, but also where more than 50% of the residents were “immigrants and their descendants from non-Western countries”: §7. The third was “a transformation area”, formerly a “hard ghetto”, which was an area which fulfilled the “parallel society” criteria for the last five years: §8.
For an area designated as a transformation area, public housing associations owning such an area would be required to draw up a development plan, which should include a plan on reducing the proportion of public housing units in the area to 40%: §§12-13. The measures to achieve this goal was envisaged to include “the sale of properties to private developers or demolition, or the conversion of family housing into housing for young people”: §14. This would require the tenancy agreements of existing tenants to be terminated.
These first four cases concerned the termination of tenants’ leases in an area designated as a “hard ghetto”, now “transformation area”: §§16-17. The fifth case concerned a challenge to the approval of a development plan: §22. The High Court of Eastern Denmark had concerns about whether the national legislation was compatible with the Race or Ethnic Origin Directive and referred two questions to the CJEU: §26.
First, “Must the term ‘ethnic origin’ in Article 2(2)(a) and (b) of Directive 2000/43 (1) be interpreted as meaning that that term, in circumstances such as those in the present case — where, under the Danish Law on social housing, there must be a reduction in the proportion of social family housing in ‘transformation areas’, and where it is a condition for categorisation as a transformation area that more than 50 % of residents in a housing area are ‘immigrants and their descendants from non-Western countries’ — covers a group of persons defined as ‘immigrants and their descendants from non-Western countries’?”
Second, “If the answer to the first question is wholly or partly in the affirmative, must Article 2(2)(a) and (b) be interpreted as meaning that the scheme described in this case constitutes direct or indirect discrimination?”
AG Ćapeta’s opinion is as follows. The provision of social housing falls within article 3(1)(h) of the Race or Ethnic Origin Directive: “access to and supply of goods and services, including housing”: §§39-44. Although public housing was not an area of competence conferred on the EU by the Treaties, “public housing in Denmark is a service offered for remuneration, in the sense of the Treaties” and, therefore, fell within the scope of EU law: §54.
Further, while “a Member State remains free to have a system of public housing – or not – and to choose the form of public housing and the persons to whom it may be offered”, “the rules on public housing, if enacted, cannot discriminate on the grounds prohibited by the EU anti-discrimination law”: §56. It followed that the Race or Ethnic Origin Directive “prohibits discrimination on the ground of ethnic origin in the area of public housing”: §59.
The term “ethnicity” had “its origin in the idea of society groups marked in particular by common nationality, religious faith, language, cultural and traditional origins and backgrounds”: §77 considering CHEZ. While nationality was not covered by the Directive, it was a relevant factor for determining ethnicity: §80. The list of characteristics of ethnicity set out in CHEZ is not exhaustive but can also include a person’s country of birth: §81 citing Jyske Finans. There may also be “subjective factors contributing to the notion of ethnicity, such as a perception of belonging to an ethnic group”: §82. As to whether an ethnic group had to be homogenous, such as “non-Westerners”, the Directive covered circumstances where a non-homogenous group were treated less favourably: §91. They key question was whether there was a division into “us” and “them”, so that a group was treated less favourably as a result of their “perceived ethnic ‘otherness’”: §92. It followed that the “Western/non-Western” criterion used by Danish legislation was based on ethnic origin: §§97-104.
Turning to discrimination, AG Ćapeta’s opinion is that the legislation was directly discriminatory. The starting point was that “to establish direct ethnic discrimination, it is necessary to establish that a person (or a group of persons) is treated less favourably than another person (or group of persons) based on the criterion of ethnic origin”: §107. In contrast, indirect discrimination occurs “when the averse treatment of an ethnic group result from an apparently neutral measure”: §108. Direct discrimination cannot (usually) be justified: §110. The termination of leases, as protected by article 7 of the Charter (equivalent of article 8 ECHR), was because of ethnic criterion, i.e. the Western/non-Western distinction: §§135-146. AG Ćapeta did not accept that the fact that tenants were offered alternative accommodation meant that they were not treated less favourably, because they were still losing their leases: §§130-134.
Further, AG Ćapeta opined that the distinction in the legislation was directly discriminatory via stigmatisation. She explained that stigmatisation means that “members of an ethnic group are attributed socially reproachable characteristics solely on the basis of their membership or perceived membership of that group”: §148. In this case, when Denmark was considering the legal definition of ghettos, it had proposed three criteria: “(i) the proportion of immigrants and their descendants from non-Western countries, (ii) unemployment and (iii) criminal convictions”: §151. Similarly, the concept of “parallel societies” referred to the perceived non-participation of “non-Westerners” in Danish society: §151. AG Ćapeta said: “By generalising those characteristics perceived as negative and unacceptable in Denmark and attributing them to all immigrants and their descendants from non-Western countries, the Law on Public Housing seems not only to be based on prejudice, but it also contributes to the perpetuation of that stereotyping and stigmatisation”: §152. Nor was there any evidence of parallel societies being a creation of only non-Westerners: §153. For those reasons, the law was directly discriminatory.
The next step is for the Court to consider the AG’s opinion and reach its own decision.
Author
Jeremy is a public law and human rights barrister at Cornerstone Barristers with experience in general public law, human rights and civil liberties, housing and homelessness, welfare benefits, planning, and information and data protection law. He also hopes to develop a practice in environment and climate law and has started to undertake work in these areas.
