The Court of Appeal has dismissed as academic an appeal on the right of non-British children to housing. The case is Ismail & Anor v London Borough of Newham [2018] EWCA Civ 665. Had the appeal been entertained, it would have determined whether children born in the UK but without British citizenship count as “persons from abroad” for the purposes of section 185 of the Housing Act 1996.

Section 185 deals with eligibility for housing assistance. It says that “a person is not eligible for assistance under this Part if he is a person from abroad who is ineligible for housing assistance”. The Ismail family had been threatened with eviction and wanted help from the council to stave off homelessness, which Newham refused on the basis that their asylum claim had been rejected and all appeals exhausted. (Section 95 support was offered instead, but rejected by the family as it would have meant leaving Newham.) By the time their case reached the Court of Appeal, their last hope for housing assistance was the argument that three UK-born children of the family qualified for it even though the parents did not.

Then, happily for the Ismails, they became entitled to accommodation by another route:

On 26 January 2017 the Court was informed by the Council that Mr Ismail had recently been granted limited leave to remain and was therefore now eligible for assistance under Part VII. He had made a new application for housing assistance and would be accommodated by the Council with his wife and children. In these circumstances, the Council notified the Court that it considered that the appeal had become academic. The appellants, however, maintained that it raised an issue of some general importance and should be heard.

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Lord Justice Patten, sitting alone, had to decide whether the section 185 point in relation to the children should nevertheless be argued. He decided that it should not:

I accept that the point of law raised by the appeal is of general importance and I am prepared also to accept that the appeal has a reasonable prospect of success. I do not, however, propose to go further into the merits because neither of those factors is sufficient in my view to justify the continuation of the appeal in circumstances where the result can make no difference to the position of the appellants. This Court has made it clear on a number of occasions that the importance of the issue raised by the appeal is not a bar to it being treated as academic.

Such occasions included Hutcheson v Popdog Ltd [2011] EWCA Civ 1580 and Hamnett v Essex County Council [2017] EWCA Civ 6.

Practitioners interested in the resolution of this point will have to await an appeal which “has a real impact on the legal rights of the parties concerned”.