46. The Court finds therefore, in line with its previous conclusions, that the fact that immigration status is a status conferred by law, rather than one which is inherent to the individual, does not preclude it from amounting to an ‘other status’ for the purposes of Article 14. In the present case, and in many other possible factual scenarios, a wide range of legal and other effects flow from a person’s immigration status.

47. The Court recalls that the nature of the status upon which differential treatment is based weighs heavily in determining the scope of the margin of appreciation to be accorded to Contracting States. As observed above at [45], immigration status is not an inherent or immutable personal characteristic such as sex or race, but is subject to an element of choice. In the applicant’s case, while she entered the United Kingdom as an asylum seeker, she was not granted refugee status. She cannot therefore be described as a person who was present in a contracting state because, as a refugee, she could not return to her country of origin. Furthermore, she subsequently chose to have her son join her in the United Kingdom. Given the element of choice involved in immigration status, therefore, while differential treatment based on this ground must still be objectively and reasonably justifiable, the justification required will not be as weighty as in the case of a distinction based, for example, on nationality. Furthermore, given that the subject matter of this case – the provision of housing to those in need – is predominantly socio-economic in nature, the margin of appreciation accorded to the Government will be relatively wide.

48. The court notes that while the Government argued before the Court of Appeal in the R (Morris) v Westminster City Council case that the differential treatment under the Housing Act 1996, as it was prior to amendment, was justified by the need to maintain immigration control and to prevent ‘benefits tourism’, the justification as presented to this Court was framed in terms of the need for the fair allocation of a scarce resource. The Government maintained that it was reasonable, in the allocation of social housing, to prioritise those who had a fixed and permanent right to be in the United Kingdom, or who had a priority need for housing due to dependants who had such a right.

49. The court finds that it is legitimate to put in place criteria according to which a benefit such as social housing can be allocated, when there is insufficient supply available to satisfy demand, so long as such criteria are not arbitrary or discriminatory. As the court has previously held, any welfare system, to be workable, may have to use broad categorisations to distinguish between different groups in need. The court also recalls its finding in the case of Ponomaryov, that states may be justified in distinguishing between different categories of aliens resident on its territory and in limiting the access of certain categories of aliens to ‘resource-hungry public services’. The court takes the view that social housing is such a public service.