Chief Adjudication Officer v. Wolke [1997] UKHL 50; [1998] 1 All ER 129; [1997] 1 WLR 1640; [1998] 1 FLR 444; [1998] 1 FCR 119; [1998] Fam Law 193 (27th November, 1997)

CHIEF ADJUDICATION OFFICER
(RESPONDENT)
v.
 

WOLKE (A.P.)
(APPELLANT)

REMILIEN (A.P.)
(APPELLANT)
v.
 

SECRETARY OF STATE FOR SOCIAL SECURITY
(RESPONDENTS)

ON 27 NOVEMBER 1997
 

 

LORD BROWNE-WILKINSON

My Lords,

For the reasons given in the speech of my noble and learned friend, Lord Hoffmann, I would allow these appeals and restore the orders of Popplewell J. and Mr. Commissioner Mesher.

 

LORD SLYNN OF HADLEY

My Lords,

Nathalie Remelien, a French national, came to this country in 1989 or 1990 from Martinique to look for work. There seems to be some doubt as to precisely when she came and when she first received Social Security benefits in the United Kingdom (neither of which date is directly relevant) but it is accepted that she received income support from June 1992 until 8 December 1993 for herself and her two children following separation from her partner. By letter dated 8 December 1993 she was told that although she was entitled to enter and remain in the United Kingdom in order to exercise Treaty rights conferred by the Treaty of Rome, “in view of the fact that you are in the United Kingdom in a non-economic capacity and that you will become a burden on public funds, the Secretary of State is not satisfied that you are lawfully resident here under E.C. law and you should now make arrangements to leave the United Kingdom.” An adjudication officer of the Department of Social Security decided that she was not any longer entitled to income support by reason of regulation 21(3)(h) of the Income Support (General) Regulations 1987 (S.I. 1987 No. 1967). The details of subsequent proceedings are set out in the judgment of Kennedy L.J. in the Court of Appeal and I do not repeat them. It is sufficient to say that the Home Secretary in 1994 in response to a further application by this appellant said that she had not produced evidence that she had found employment or that she was actively seeking work with a reasonable chance of obtaining it. She failed in her challenge to the removal of income support before the adjudication officer but succeeded on appeal to the Social Security Tribunal and before Popplewell J. on an application for judicial review; in the Court of Appeal the majority decided in favour of the Secretary of State.

Mery Wolke, a Dutch national, apparently came to the United Kingdom in April 1994 with her partner, a British national, and their son born in May 1993. She now contends that she came here as a person who was financially self-sufficient though there are apparently no records to show on what basis she claimed to come as a national of a Member State of the European Community (or of the European Economic Area following the extension in 1992 of the rights of free movement to nationals of States of the European Economic Area). She separated from her partner in November 1994 and thereafter claimed and was paid income support for herself and her son. On 10 April 1995 the Home Secretary sent to her a letter similar to that sent to Nathalie Remelien save that she was referred to as an E.E.A. national and that the letter concluded “I should add that if you do not leave the United Kingdom on a voluntary basis then, in the present circumstances of your case, we will not take steps to enforce your departure from the United Kingdom.”

The appeal turns on the proper interpretation of the words “is required by the Secretary of State to leave the United Kingdom” in regulation 21(3)(h) of the 1987 Regulations and on the question whether the relevant letters constituted such a requirement. The word “required” has different shades of meaning and compulsion.

Your Lordships have been given dictionary definitions and examples to show that the word may or may not connote a legal power to enforce what is “required.” It plainly depends on the context in which the word is used. It is for that reason necessary to consider the scheme of the legislation providing for income support and the immigration legislation relative to the
appellants’ presence in the United Kingdom.


The Social Security Legislation

“Income Support” is one of the income-related benefits provided for in part VII of the Social Security Contributions and Benefits Act 1992 for which prescribed schemes were to be made by regulation in accordance with section 175 of the Act. Broadly, and subject to exceptions in prescribed circumstances, it is available for a person in Great Britain over the age of 18 who has no income or an income which does not exceed the applicable amount, who is not engaged in remunerative work and who is available for and actively seeking employment but not receiving relevant education. The amount payable is the applicable amount fixed by the Secretary of State (which may be nil) less any income.

The applicable amount in certain special cases is to be the weekly amount prescribed in column 2 of Schedule 7 to the Income Support (General) Regulations 1987 (S.I. 1987 No. 1967) as amended. One of those special cases is “Persons from abroad” in paragraph 17 (other than one of the defined “urgent cases”). For that category the amount prescribed, both for a single claimant and for a lone parent who is a person from abroad, is “nil.” “Person from abroad” for the purposes of Schedule 7 is defined in regulation 21(3). It includes e.g. an illegal entrant within the meaning of section 33(1) of the Immigration Act 1971 and who has not subsequently been given leave under that Act to enter or remain within the United Kingdom. An illegal entrant is defined in section 33(1) as including a person unlawfully entering or seeking to enter in breach of “a deportation order or of the immigration laws and included also a person who has entered.” Two sub-paragraphs of Regulation 21(3) are of particular relevance for the present case. Thus “person from abroad” includes a person who

    • “(c) is the subject of a deportation order being an order under section 5(1) of the 1971 Act (Deportation) requiring him to leave and prohibiting him from entering the United Kingdom; or (h) is a national of a Member State and is required by the Secretary of State to leave the United Kingdom.”

 

The person referred to in sub-paragraph (c) was included in the Regulation as originally made. Sub-paragraph (h) was added by regulation 4 of The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1993 (S.I. 1993 No. 315) with effect from 4 April 1993.

The Immigration Legislation

Prior to the United Kingdom’s accession to the European Community a national of one of the Member States, like a national of other states not having a right of abode in the United Kingdom, required leave to enter and remain in the United Kingdom and was subject to such regulation and control as was imposed by the Immigration Act 1971, section 1. Such leave might be of limited or of indefinite duration and subject to conditions restricting employment: section 3. By section 3(2) of that Act, the Secretary of State was empowered to lay before Parliament “statements of the rules laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter.” Either House of Parliament before which the statement was laid might disapprove those statements.

A person in breach of a condition of leave or staying beyond the time limited was made liable to a deportation order as was a person who is not a British citizen “if the Secretary of State deems his deportation to be conducive to the public good:” section 3(5)(b). A person convicted of an offence punishable with imprisonment whom a court recommended to be deported could also be deported. The procedure on such a deportation is laid down in sections 5 et seq. of the Act. Section 15 gives leave to appeal against a decision of the Secretary of State to make a deportation order against a person under section 3(5) of the Act.

Following accession European Community law gave certain rights of movement. Thus article 48 of the Treaty of Rome gave to nationals of Member States the right to enter and stay in the territory of other Member States for the purpose of accepting offers of employment actually made. Subsequent Council Directives gave rights to reside in other Member States to students (90/364 E.E.C.), to retired persons (90/365 E.E.C.), and to those who were financially self-sufficient (90/365 E.E.C.).

The United Kingdom in an attempt to comply with the E.C. law adopted the practice of giving leave for a period of normally six months without any condition being imposed restricting employment. In Reg. v. Pieck [1981] Q.B. 571 the European Court held that any formality for the purpose of granting leave, coupled with a passport or an identity card check at the frontier, was contrary to article 3(2) of Directive 68/360 E.E.C. which prohibited Member States from demanding an entry visa or equivalent requirement from community workers. It was further held that a general resident’s permit could not be required since the right to enter and reside in the territory of another Member State for the purposes intended by the Treaty is a right conferred directly by the Treaty.

Subsequently by paragraphs 140 and 143 of the Statement of Changes in Immigration Rules (H.C. 169) made by the Secretary of State under section 3(2) of the Act of 1971 and which came into force, having been laid before Parliament, on 9 February 1983, it was provided that a Community national could stay here for six months before applying for a resident’s permit and that such a permit would be issued if that person had entered employment. A person could, however, be required to leave the United Kingdom, subject to appeal, if he fell a charge on public funds before issue of a first residents permit or if he had not entered employment by the end of the period.

The legality of this provision as a matter of community law was considered in Reg. v. Immigration Appeal Tribunal, Ex parte Antonissen (Case 292/89) [1991] ECR I-745. The Secretary of State had ordered that A, who had been convicted of drug offences, be deported pursuant to section 3(5)(b) of the Immigration Act 1971 Secretary of State having deemed his deportation to be conducive to the public good.

On the basis of paragraph 143 of H.C. 169 the Immigration Appeals Tribunal ruled that he could no longer be treated as a community worker, and rely on Council Directive (64/221/E.E.C.) of 25 February 1964 (relative to the movement and residence of foreign nationals restricted on grounds of public policy, public security or public health,) since he had not entered employment by the end of the six-month period.

A. challenged this ruling before the Divisional Court which asked the European Court whether for the purpose of determining whether a national of a Member State is to be treated as a “worker” when seeking employment so as to be immune from deportation (save in accordance with Council Directive 64/221 E.E.C.) “the legislature of the second Member State may provide that such a national may be required to leave the territory of that State (subject to appeal) if after six months from admission to that territory he has failed to enter employment?” The European Court held that a person seeking employment was to be regarded as a “worker” but that it was not contrary to community law

    “for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory (subject to appeal) if he has not found employment there after six months, unless the person concerned provided evidence that he is continuing to seek employment and that he has genuine chances of being engaged.”

 

The wording of paragraph 143 to which reference has been made was repeated in paragraph 150 of the subsequent Statement of Changes (H.C. 251) laid before Parliament under section 3(2) of the Act of 1971 on 23 March 1990.

Section 7 of the Immigration Act 1988 provided that a person did not require leave to enter or remain in the United Kingdom if he was entitled to do so by virtue of an enforceable community right or of any provision made under section 2(2) of the European Communities Act 1972. The Immigration (European Economic Area) Order 1994 (S.I. 1994 No. 1895), made pursuant to section 2(2) of the Act of 1972, which came into force on 20 July 1994 provided for a right of admission to E.E.A. nationals and for a right of residence for qualified persons without any requirement of leave to remain, qualified persons including under article 6(1)(a) “a worker” and (f) “a self-sufficient person.”

The Statement of Changes in the Immigration Rules adopted in 1994 did not apply to E.E.A. nationals entitled to enter by virtue of that order.

By article 15(2) of the 1994 Order an E.E.A. national and a family member of such a person might be removed from the United Kingdom under paragraph (a) on his ceasing to be a qualified person, or under paragraph (b) if his removal is justified on grounds of public policy, public security or public health.

The person might appeal against the decision to remove him:

    • “(i) if he is a person to whom paragraph (a) applies, as if he were a person in respect of whom the Secretary of State had decided to make a deportation order and were entitled to appeal by virtue of section 15(1)(

a

    • ) of

the Act

    •  of 1971: or

 

    • (ii) if he is a person to whom paragraph (b) applies as if he were entitled to appeal as aforesaid but subject to article 20(2) and section 15(7) of

the Act

    •  of 1971.”

 

Against the background of this legislation it is accepted and is clear that when the appellants came into the United Kingdom, if they were genuinely looking for work or self-sufficient, they did not need leave under the Act of 1971. They entered by a community law right. They were not “illegal entrants” unlawfully entering, or having entered, in breach of the immigration laws within the meaning of sections 33 of the Act. It is also clear and accepted that until 1994 the only method available to the Executive to remove them from the United Kingdom was by means of a deportation order under section 3(5)(c) of the Act of 1971 if the Secretary of State deemed their deportation to be conducive to the public good.

From 1994 if they ceased to be “a worker” or “a self-sufficient person” they could be removed from the United Kingdom. I do not read the exercise of that power created by article 15 of the 1994 order as amounting to or requiring the making of a deportation order. The words of article 15(2)(i) do no more than give a right to the person, who ceases to be a worker, a right to appeal “as if he were someone in respect of whom the Secretary of State had decided to make a deportation order.” He thus has a right of appeal under section 15(1)(a) of the Act of 1971. They do not make him a person in respect of whom a deportation order has been made.

Does the fact that at the time the two letters were written there was no self-standing power to enforce a requirement to leave the United Kingdom, or no power other than in the situation where the Secretary of State thought that deportation was necessary for the public good, necessarily mean that there was no real content to the phrase “required to leave” in regulation 21(3)(h) of the 1987 Regulations until the 1994 Order was made? In my view it does not.

It seems to me that two matters are of particular relevance in this context in construing this phrase. The first is the origin and subsequent use of the phrase; the second is the purpose for which it was used in the social security legislation.

The phrase “may be required to leave the United Kingdom, subject to appeal,” if the person fails to get work in six months, was to be found, as has been shown, in paragraph 143 of the Statement of Changes in the Immigration Rules (H.C. 169). It was in force as paragraph 150 of the Statement H.C. 251 of 1990 at the time the amendment was made to the 1987 regulations by the addition of sub-paragraph (h) to regulation 21(3) of the 1987 General Regulations. That paragraph was in a section of the Statement dealing with European Community nationals: it was introduced as a method of control of such nationals who sought to stay outside the limits which Community Law allowed and as a response to the decision in Reg. v. Pieck [1981] Q.B. 571. No one suggests that as a matter of municipal law these Statements were not validly made under, and within the Secretary of State’s express powers in, section 3(2) of the Act of 1971. As a matter of Community Law the provision was upheld by the European Court in Reg. v. Immigration Appeal Tribunal, Ex parte Antonissen [1991] E.C.R. 1-745 subject to the qualification that a person genuinely seeking work with a real chance of getting it should not be required to go after six months.

Reliance has been placed on the answer given by the court in Ex parte Antonissen, at p. 780:

    • “it is not contrary to the provisions of Community Law . . . for the legislation of a Member State to provide that a national of another Member State . . . may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months . . . “

 

It is argued that the 1994 order was simply giving effect to a requirement expressed in the Antonissen judgment since there had to be further legislation. The answer of the court, however, closely follows the language of the Divisional Court’s question “may the legislature of the second Member State provide that a person may be required to leave the territory of that State (subject to appeal)?” It is not possible to read the question as based on the assumption that such legislation would be introduced.

Nor although the word “legislation” was used by the court, and there was no primary legislation in existence expressly so providing, it is not possible to read the judgment as based on a ruling that future primary legislation was required for such a provision to be made or on an assumption that such legislation would be introduced. On the contrary, however inaccurately expressed, the European Court was dealing with the position as it then was. In paragraph 21 of the judgment the court refers to the time period prescribed “such as that laid down in the national legislation at issue in the main proceedings.” That national legislation, as appears from paragraph 5 of the judgment, was “paragraph 143 of the Statement of Changes in Immigration Rules (H.C. 169) adopted pursuant to the Act of 1971.” It was for the purposes of the judgment regarded as sufficient that the requirement to leave after a period was laid down by the Secretary of State under statutory powers which in themselves were subject to the negative resolution procedure of Parliament.

It seems to me that in the regulation, pursuant to that Statement, of Community Law rights of entry and residence the Secretary of State could lawfully call on a person, who no longer had a Community Law right to remain, to leave the United Kingdom even if Parliament had not given him powers to enforce his requirement other than when he deemed deportation to be conducive to the public good.

A person who is a national of another Member State and who is required by the Secretary of State to leave the United Kingdom, within the meaning of regulation 21(3)(h) of the 1987 Income Support (General) Regulations is, or at any rate includes, a person whom the Secretary of State has required to leave pursuant to paragraph 143 of H.C. 169.

Who shall receive income support and in what amount involves the making of social policy and the Secretary of State is empowered to make regulations for that purpose pursuant to section 175 of the Act of 1992. At the relevant time income support did not depend on the possession of British nationality or on domicile or even on habitual residence (as in the latter case it was made to do later). It was available to persons “in Great Britain.” It was, however, clearly intended that some persons in Great Britain, not having a right of abode, should not have that support even if those persons did not have an income equal to the applicable amount. These persons are listed in the category of “persons from abroad.” They include persons having limited leave who have stayed beyond the limit, those who are illegal entrants within the meaning of section 33 of the Act of 1971 or who are subject to a deportation order. But the exclusion from income support applies also to categories of persons whose presence in the United Kingdom would not seem to be ex facie unlawful. Thus in (e) and (f) persons granted temporary admission are excluded; as are persons whose immigration status has not been determined by the Secretary of State. However much one feels sympathy in individual cases for mothers with very young children, it cannot be said that, in the light of the other categories excluded from income support, to exclude persons who have exhausted their Community Law rights as workers (by not getting work) or as self-sufficient persons (by falling on public funds) in the United Kingdom is in principle shocking or unreasonable.

This is particularly so if it is remembered that persons who are seeking work (as opposed to persons who are workers) do not have the right to social security payments available to nationals even during a period before the six months expires when they are entitled to be here. In Centre public d’aide sociale de Courcelles v. Lebon [1987] ECR 2811 the European Court held that a right to equal treatment with regard to social and tax advantages accorded by article 7(2) of Regulation No. 1612/68 E.E.C. applied only to workers and not to nationals of Member States who move in search of employment. The latter were entitled only to equal treatment in regard to access to employment in accordance with article 48 of the Treaty and articles 2 and 5 of Regulation No. 1612/68 E.E.C.

If regulation 21(3)(h) is seen in isolation it might seem strange that the applicants’ entitlement to a social security payment should depend on the decision of the Home Secretary rather than of the Secretary of State for Social Services. Seen in the context of the definition of “persons from abroad” as a whole it does not seem to me at all strange. All the categories from (a) to (h) are dependant on a decision of the Home Secretary since they are linked to a right or a grant of permission of someone to come or to stay here. The Home Secretary’s “requirement to leave” is the trigger which brings into action paragraph 17 of schedule 7 to the 1987 regulations which the Department of Social Security must then apply.

In Ex parte Antonissen the words “required to leave (subject to appeal)” are taken from paragraph 143 of H.C. 169. I do not recollect that the court was asked to consider whether, or to say that, the existence of a right of appeal was an essential constituent of a valid requirement to leave. It is said that, however, even if the European Court did not make the existence of a right of appeal a necessary condition, if there is no right of appeal, the Home Secretary’s contention as to the meaning of (h) should not be accepted since arbitrary conduct would be possible; under domestic law there was no right of appeal–not under the Immigration Act 1971 as there had been no refusal of a conditional grant of leave to enter and no deportation order; not under the procedure laid down in article 15(2) of the Immigration (European Economic Area) Order 1994 which only came into force some 15 months after (h) had been added to the definition of “persons from abroad.” So far I agree. It has been suggested, on behalf of the respondents, however, that a right of appeal would lie to an adjudicator under section 22 of the Social Security Administration Act 1992 and that the decision to require, or the making of a requirement to, a person to leave could be challenged by way of judicial review. Judge J. in Reg. v. Secretary of State, Ex parte Vitale [1995] All.E.R.(E.C.) 946 appears to have considered that both avenues were open and the contrary was, it seems, not contended. The matter has not been fully argued in the present case since it is not directly in issue but I am not satisfied that any appeal who would lie from the decision of the Social Security Adjudication Officer in part since by reason of section 22(3) of the Act of 1992:

    • “No appeal lies under this section where –

 

    • “(a) in connection with the decision of the Adjudication Officer there has arisen any question which under or by virtue of

this act

    •  falls to be determined otherwise than by an Adjudication Officer.”

 

However, it seems to me, as it did to Judge J., that a requirement to leave could be challenged by way of judicial review. The requirement does not itself permit an involuntary removal; it may not change the individual’s immigration status or the lawfulness of his presence here. It does, however, plainly affect his legal right to income support; his entitlement goes on the requirement to leave. If, therefore, national law or Community Law requires that a right of judicial challenge should exist, in my view it does so.

In Reg. v. City of Westminster, Ex parte Castelli (1996) H.L.R. 616 the Court of Appeal held that a European national, who ceases to be a qualified person in fact but who has not been given and overstayed a limited leave to remain and has not been told that the Secretary of State has decided that he should be removed, is not a person “not lawfully here” and therefore not regarded as a “person” for the purposes of part III of the Housing Act 1985 who can claim to be homeless and in priority need of accommodation.

It does not seem to me that it is necessary in this case to decide whether the presence here of a person after the six-month period has run, and on the assumption that a valid requirement has been issued to him, is unlawful. The question in this case is whether a valid requirement has been made so as to bring into play regulation 21(3)(h).

If I am wrong and it is necessary to decide it then as I see it the position is that the entrants came in solely in the claimed exercise of Community Law rights. The Government was entitled to terminate those rights–in the case of a worker in accordance with Ex parte Antonissen. If it does so those rights no longer exist even if no criminal offence is committed. The presence here then ceases to be lawful both under Community Law and for the purposes of the European Convention on Social and Medical Assistance 1953.

If regulation 21(3)(h) required the making of a deportation order Mr. Plender Q.C. argued that it added nothing to sub-paragraph (c) which had always included persons subject to a deportation order as being persons “from abroad.” I think, as did the majority in the Court of Appeal, that there is force in this argument. Moreover it seems to me clear that it was the deliberate intention to add a quite separate category of persons to those in the class of persons from abroad. There are different ways in which people can be removed from the United Kingdom. The first is by a deportation order on the grounds referred to. That is the most draconian since it prohibits return. The second is by “removal” which is provided for in paragraphs 8 and 9 of Schedule 2 to the Immigration Act 1971 for illegal entrants and those who have been refused leave to enter. The third is the power of removal under article 15(2) of the 1994 order which, as I have said, I do not read as being a deportation order.

In my opinion the “requirement to leave” in regulation 21(1)(h) does not necessitate and is not dependent on any of these methods of removal. It is a provision which does no more than to take the recipient out of the category of persons entitled to income support. That is quite plainly its purpose and that is how I read it. It is concerned only with community nationals who have sought to exercise community rights and is in no way contrary to community law. It has the same effect as if the legislation had said that the Secretary of State might by notice terminate entitlement to income support if satisfied that a person had not obtained work in the relevant period or had become a charge on public funds. I do not accept that for the purpose of cutting off income support a requirement to leave cannot be made until a notice of intention to deport has been given under section 3(5) of the Act of 1971.

In my opinion, therefore, the Secretary of State had power to require the appellants to leave because either they had failed to obtain work or they had become a charge on public funds. If he did so require them they ceased to be entitled to income support. The letters to the two appellants obviously could have been written in clearer, more positive, terms but in my view when the purpose of the provision is considered they are a sufficient communication of the requirement to leave. The fact that Mery Wolke was told that removal would not at that time be enforced is not inconsistent with the requirement to leave for the purpose intended.

I agree with the result reached by the majority in the Court of Appeal and I would accordingly dismiss both appeals.

 

LORD HOFFMANN

My Lords,

Ms Wolke and Ms Remilien are single mothers, nationals of Member States of the European Union (the Netherlands and France respectively) but now living in England. They came here with men from whom they have since separated. The question in these appeals is whether they are entitled to income support. In principle they are entitled to receive this benefit by virtue of the Social Security Contributions and Benefits Act 1982 and the Income Support (General Regulations) 1987 (“the regulations”), but paragraph 17 of Schedule 17 to the regulations says that the amount of the entitlement of a “person from abroad” shall be nil. A “person from abroad” is defined in regulation 21(3) under various heads, mainly by reference to his status under the Immigration Act 1971. The paragraph said to apply to the appellants is (h): “[a person who] is a national of a Member State and is required by the Secretary of State to leave the United Kingdom.” So the short question, to which there is unfortunately rather a long answer, is whether the Secretary of State has “required” Ms Wolke and Ms Remilien to leave the United Kingdom.

Each of the appellants has received a letter from the Secretary of State in similar terms. Ms Remilien, who arrived here some time before the middle of 1992, received the following letter dated 8 December 1993. It read as follows:

    • “It has come to the notice of this Department that you have claimed income support since 11.6.92 and that you are still continuing to claim. I should like to explain that as a European Community national you are free to enter and reside in the United Kingdom in order to exercise Treaty rights conferred by the Treaty of Rome. These include the right to seek or take employment, or to reside here in a non-economic capacity provided that you have enough resources to avoid being a burden on public funds. However, in view of the fact that you are in the United Kingdom in a non-economic capacity and that you have become a burden on public funds, the Secretary of State is not satisfied that you are lawfully resident here under E.C. law and you should now make arrangements to leave the United Kingdom.”

 

The letter to Ms Wolke, who came in April 1994, was dated 10 April 1995. It was in the same form but with two minor changes. First, Ms Wolke was referred to as a European Economic Area (“E.E.A.”) national instead of a European Community national. This reflected the extension of rights of free movement to nationals of states of the E.E.A. (the Member States of the European Union plus Norway and Liechtenstein) by the Agreement on the European Economic Area, signed at Oporto on 2 May 1992 as adjusted by the Protocol signed at Brussels on 17 May 1993. Secondly, an additional sentence had been added at the end. It said:

    • “I should add that if you do not leave the United Kingdom on a voluntary basis then, in the present circumstances of your case, we will not take steps to enforce your departure from the United Kingdom.”

 

 

A social security adjudication officer decided in each case that the letters amounted to a requirement from the Home Secretary that the appellants leave the United Kingdom and accordingly brought them within the paragraph (h) definition of persons from abroad. He therefore terminated payment of income support. The appeals which bring this question before the House have taken somewhat different routes. Ms Wolke applied for judicial review of the adjudication officer’s decision, which was quashed by Popplewell J. He said that the letter did not require her to leave, though it implied that this might happen in the future. Ms Remilien appealed to the Social Security Appeal Tribunal, which confirmed the decision of the Adjudication Officer and then to the Commissioner, Mr. Mesher, who allowed her appeal. He said that the letter did not have “the necessary degree of insistence or compulsion.” The Chief Adjudication Officer appealed to the Court of Appeal against the decisions of Popplewell J. and Mr. Commissioner Mesher. Both appeals were heard together. By a majority the Court of Appeal held that the letter constituted a requirement. Kennedy L.J. accepted the submission of Mr. Plender, who appeared for the Chief Adjudication Officer, that it was sufficient that the letter had been sent by the Home Secretary (who would have power institute proceedings leading to a deportation order) to an E.E.A. national “who is present here without the benefit of any legal right (whether under domestic or Community law)” and told her that she should “now” make arrangements to leave. Various analogies were used: Mr. Plender said that was like a policeman telling a boy not to cycle on the pavement and Kennedy L.J. said that it was like a farmer telling a picnicker to leave his field. In neither case did it matter that no immediate legal action was in contemplation: the communication by a person in authority or owner of the land amounted to a requirement. Sir Stephen Brown P. agreed. He said that the Home Secretary’s letter was “an authoritative letter which conveys a serious instruction.” Phillips L.J. dissented. He said that as a matter of construction of paragraph (h), “required to leave” meant being placed under a legal obligation to go. As it was accepted on all sides that the letters did not have this effect, they did not bring the appellants within the definition of a “person from abroad.”

Paragraph (h) was added to the definition of “person from abroad” by regulation 4 of the Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1993 which was made on 22 February 1993 and came into force on 12 April 1993. It is common ground that the background to the introduction of the paragraph is developments in the Community law of free movement of persons which had occurred in previous years and in particular, the decision of the European Court of Justice in Reg. v. The Immigration Appeal Tribunal, Ex parte Antonissen [1991] E.C.R. 1-745. Indeed, it is agreed that the phrase “required to leave” is derived from the judgment of the court. I must therefore, as briefly as the subject will admit, sketch this background, which I think is essential to the interpretation of the paragraph.

The key concept in U.K. immigration control is that of having “leave to enter” the United Kingdom. The Immigration Act 1971 provides that a person who is not a British citizen shall not (subject to immaterial exceptions) enter the United Kingdom “unless given leave to do so in accordance with this Act:” section 3(1)(a). A person who enters without leave is an “illegal entrant” (section 33(1); he may be removed by an immigration officer (Schedule 2, paragraph 9) and if he knowingly enters without leave, he commits a criminal offence: section 24(1)(a). Leave may be for a limited or indefinite period (section 3(1)(b)) and if limited, may be subject to conditions restricting his employment or occupation in the United Kingdom: section 3(1)(c). A person with limited leave who overstays or fails to observe a condition is liable to deportation (section 3(5)(a)) and if he does so knowingly, commits a criminal offence: section 24(1)(b).

The Act thus contemplates that persons who are not British citizens will be entitled to be present here only if they have been given leave to enter and that their right to reside in the United Kingdom will be a consequence of the terms of that leave. The whole scheme relies upon the exercise of control at the frontier and is part of the explanation for the insistence of the United Kingdom in retaining such controls, which will be specifically authorised under Protocol X to the Treaty of Amsterdam. The immigration controls of most European countries with land frontiers operate in a different way. Under their systems, the primary question is whether the non-citizen has a legal right to be present in the country, reside there, be employed or follow an occupation. His right to enter is a consequence of his having the right to be there rather than the other way round.

Our accession to the European Community created the problem of reconciling Community rights to work and to reside in other Member States, framed in European terms, with the U.K. system of control based on leave to enter. At first the Home Office tried to reconcile, for example, the right to be employed and seek employment conferred by article 48 of the Treaty of Rome, with the Act of 1971, by granting nationals of other Member States leave to enter for an initial period of six months without restriction as to employment or occupation. But in Reg. v. Pieck [1981] Q.B. 571 the European Court of Justice held this to be unlawful. Persons seeking to exercise their Community rights to seek work or set up business in the United Kingdom were entitled to enter by virtue of those rights and without any leave at all. The same applied to other classes of persons later given Community rights to reside in other Member States, such as students, retired persons and self-sufficient persons: see Council Directives 90/364 E.E.C., 90/365 E.E.C. and 90/366 E.E.C..

As a result of Reg. v. Pieck, the Home Office admitted nationals of other Member States without leave. But this produced a novel problem. Community law gave nationals of other Member States rights to reside here only for defined and limited purposes. I shall refer to people duly exercising those rights as “qualified persons.” What could be done about those who entered without leave but ceased to be qualified persons? Under the old scheme of things, anyone entering for a limited purpose would be given limited leave and, if he overstayed, would commit an offence and be liable to deportation. But this method of control could not be applied to Community entrants.

Following Reg. v. Pieck, the Home Secretary announced a Statement of Changes in Immigration Rules 9 February 1983 (H.C. 169) in which he said (in Part VI of the Rules) that Community nationals would be admitted without leave. In paragraph 140 he said that a Community national admitted without leave under Part VI would be issued with a residence permit when he (a) entered into employment or (b) established himself in business. He then dealt with overstaying Community nationals in paragraph 143:

    • “A person may be required to leave the United Kingdom, subject to appeal, if he falls a charge on public funds before issue of a first residence permit, or if, after 6 months from admission, he fails to meet the requirements of paragraph 140 (a) or (b) above.”

 

There was, however, a problem about how the Home Secretary was going to implement this policy. The rules are merely a statement as to how the powers in the Act of 1971 will be exercised (see section 3(2)) and cannot create a power to require people to leave which does not exist in the Act itself. The only mechanism provided by the Act was the power of the Secretary of State to deport on the grounds that he deems the deportation to be “conducive to the public good:” section 3(5)(b). So the words “required to leave” in paragraph 143 echo part of the definition of a deportation order in section 5(1) of the Act: “an order requiring him to leave and prohibiting him from entering the United Kingdom.” Deportation on the “public good” ground is however a weighty matter: the power is normally exercised on the ground of a serious criminal conviction or other conduct which shows that continued presence in this country is detrimental to the public interest. As the case of all decisions to deport, there is a right of appeal to an immigration adjudicator, who is required, under section 19(1)(a), to allow the appeal if he considers that the decision of the Secretary of State was not in accordance with the law or the Immigration Rules or if he considers that the discretion of the Secretary of State should have been exercised differently. This is the right of appeal to which reference is made in paragraph 143. The adjudicator is thus under a duty to review the discretion of the Secretary of State and give such effect to all the circumstances of the case (including, for example, compassionate grounds for not making a deportation order) as he thinks right. By section 15(2), the actual deportation order may not be made while the process of appeal against the decision to make it is still running its course.

The exercise of the power to deport on this ground would therefore not necessarily be appropriate for use in every case falling within the terms of paragraph 143. At that time, however, no wider powers to remove Community nationals existed in U.K. domestic law.

The lawfulness in Community law of the policy stated in paragraph 143 was considered by the European Court of Justice in Reg. v. Immigration Appeal Tribunal, Ex parte Antonissen [1991] E.C.R. 1-745. Mr. Antonissen was a Belgian national who entered the United Kingdom in the exercise of Community rights but before he had taken up any employment, was arrested and convicted of drug dealing. While he was in prison, the Home Secretary made a deportation order under section 3(5)(b) of the Act of 1971. Mr. Antonissen challenged the order on the ground that although Article 48 of the Treaty allows the Community right to be employed and seek employment to be limited on grounds of “public policy,” the grounds upon which this exception can be invoked by a Member State are narrowly delineated in Council Directive 64/221 E.E.C. of 25 February 1964. He claimed that they did not justify his deportation for the offence which he had committed.

The Immigration Appeal Tribunal did not attempt to justify the deportation on the ground of the public policy exception. They said instead that no exception was needed; Mr. Antonissen was not employed or seeking employment and therefore had no rights under article 48 at all. And as a test of whether he still had such rights, they applied the six-month period laid down in paragraph 143 of the 1983 Rules. The Divisional Court referred to the European Court of Justice the following question, at p. 776, para. 6:

    • “For the purpose of determining whether a national of a Member State is to be treated as a ‘worker’ within the meaning of article 48 of the E.E.C. Treaty when seeking employment in the territory of another Member State so as to be immune from deportation save in accordance with Council Directive 64/221 E.E.C. of 25 February 1964, may the legislature of the second Member State provide that such a national may be required to leave the territory of that State (subject to appeal) if after six months from admission to that territory he has failed to enter employment?”

 

The answer given by the Court of Justice was, at p. 780:

    • “It must therefore be stated in reply to the questions submitted by the national court that it is not contrary to the provisions of Community law governing the free movement of workers for the legislation of Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged.”

 

Thus the policy stated in paragraph 143 was vindicated. But the curious feature of the question submitted to the Court of Justice was that, although it asked whether “the legislature” might provide for a Community national being required to leave in the circumstances described, no such legislation then existed in the United Kingdom. The ground upon which Mr. Antonissen had been required to leave was the “conducive to the public good” ground of deportation. After the decision, it was therefore clear that, if the United Kingdom wished to avail itself of the full breadth of the power of removal approved by the Court of Justice, further domestic legislation would be necessary.

My Lords, it is against this background and in particular the use of the phrase “required to leave” in Ex parte Antonissen, that paragraph (h) must be interpreted. In my view, the words in the judgment mean that the Community national has been placed under a legal obligation to leave. The context of the question is the use of the deportation power to give effect to the policy expressed in paragraph 143 of the Rules and so, indirectly, the words echo part of the very definition of a deportation order in section 5(1) of the 1971 Act. If this is the context of the judgment, one should, I think, start with the assumption that paragraph (h) was also intending to refer to a legal obligation to leave.

This assumption is in my view reinforced by the reference in Ex parte Antonissen to a right of appeal. This suggests an act having legal consequences, such as a decision to make a deportation order. It is agreed, however, that the letters in this case have no affect upon the appellants’ immigration status and do not give rise to any right of appeal to an immigration adjudicator. In Reg. v. Secretary of State for the Home Department, Ex parte Vitale [1995] All E.R.(E.C.) 946 Judge J. said that the decision of the Home Secretary could be judicially reviewed. But I find it hard to see on what principles a court would decide that an act avowedly having no legal effect could be declared unlawful. When one comes to the decision of the social security adjudication officer to give effect to the letter by discontinuing income support, there is certainly a right of appeal to a social security appeal tribunal under section 22(1) of the Social Security Administration Act 1992. In the Vitale case, Judge J. said that “in the course of his appeal before the Social Security Appeal Tribunal Mr. Vitale will be able to argue against the finding that he was not lawfully resident in the United Kingdom.” I make two comments on this statement. First, it would seem odd that an appeal on a question of immigration status, which was presumably entrusted in the first instance to the Home Secretary because of his department’s expertise in immigration matters, should lie to a Social Security Appeal Tribunal rather than an immigration adjudicator. Secondly, I am not sure that the judge took account of section 22(3) of the Act of 1992, which provides that:

    • “No appeal lies under this section where–(a) in connection with the decision of the adjudication officer there has arisen any question which under or by virtue of

this Act

    •  falls to be determined otherwise than by an adjudication officer.”

 

If the respondent’s construction of paragraph (h) is correct, then by virtue of regulation 21(3)(h), the question of whether the applicant should be “required to leave” falls to be determined by the Home Secretary. The result is that the appeal tribunal cannot enter into the question of whether the applicant should have been required to leave. On this question, there is no appeal. Nor is there any other ground on which the termination of income support could be resisted. So the appellants would have no effective right of appeal. I find this a strange consequence of a regulation which is said to give effect to the Antonissen decision.

There are, however, two arguments which Mr. Plender advanced against this view. The first is that, as a matter of Community law, there was no need for entitlement to income support to be linked to being under a legal obligation to leave. There is no necessary connection between a person’s right to enter and reside in the United Kingdom and his right to receive the same social security benefits as British citizens. In Centre public d’aide sociale de Courcelles v. Lebon [1987] ECR 2811 the Court of Justice decided that a national of a Member State had no right to equal treatment in matters of social security in another Member State merely because he was lawfully there. Only if he was actually employed could he claim equal treatment with other employees. And in a number of cases, the Community right to reside in a Member State is made expressly subject to making no claim on public funds. It would therefore have been open to the Secretary of State for Social Security, as a matter of Community law, simply to exclude article 48 work-seekers, students and other non-economic categories of persons resident under Community rights, from any claim to income support.

On the other hand, the European Convention on Social and Medical Assistance and Protocol, a treaty which dates back to 1953, requires the United Kingdom to provide equal treatment in social security matters to nationals of the other contracting parties “lawfully present” on its territory (Article 1). But all that the Secretary of State needed to do in order to comply with this Convention was to limit the entitlement to benefits to persons lawfully present in the United Kingdom. This, says Mr. Plender, is what he was trying to do in paragraph (h). But because the question of whether someone is still bona fide exercising a Community right is often a matter of judgment, the regulations entrusted the decision on this question to the Home Secretary.

There are three difficulties about this argument. The first is that paragraph (h) does not refer to a statement by the Home Secretary that the Community national is not lawfully present. It says that he must have been required to leave. The second is that Antonissen, from which the language is admittedly derived, does not enter into the question of whether a person is lawfully present in the United Kingdom. That is a matter of domestic U.K. law, on which the Court of Justice would have expressed no opinion. All that the Court said was that legislation in a Member State giving the government the right to remove persons in the category described in the question would not be contrary to Community law. Thirdly, the appellants were lawfully present in the United Kingdom. As Kennedy L.J. said, until they had actually been required to leave in accordance with applicable provisions of domestic law, their “presence in the United Kingdom could [not] be properly described, in terms of immigration law, as unlawful.” I agree with this statement, which is contrary to the view of Judge J. in Reg. v. Secretary of State for the Home Department, Ex parte Vitale [1995] All E.R. (E.C.) 946 but in accordance with that of the Court of Appeal in Reg. v. City of Westminster, Ex parte Castelli (1996) 28 H.L.R. 616. But the acceptance of this view of the appellants’ immigration status gravely weakens the value of the analogies which Kennedy L.J. drew with the policeman and the cyclist and the farmer and the picnicker. The policeman’s order amounts to a requirement because it is not lawful to ride bicycles on the pavement. We should have doubt about the propriety of using the word “require” if the policeman had told the boy to wear a crash helmet, this not being compulsory for pedal cyclists. Likewise the picnicker is already acting wrongfully by trespassing upon the farmer’s land and the farmer is drawing attention to this fact. But the Home Secretary does not own the United Kingdom and the appellants are doing nothing unlawful in public or private law. It was true that they could be deported if (subject to appeal) the Home Secretary was able to exercise his power of deportation on the grounds of “conducive to the public good.” But all non-British citizens were liable to deportation on this ground, even those who had lived here for many years pursuant to indefinite leave. That contingency could not make their presence here unlawful in advance of the order being made.

Mr. Plender’s second argument is that if paragraph (h) means that there must have been a legal obligation to leave, it added nothing to paragraph (c), which was already in the definition before 1993 and read as follows:

    •  “[A person who] is the subjection of a deportation order being an order under section 5(1) of the 1971 Act (deportation) requiring him to leave and prohibiting him from entering the United Kingdom.”

 

In 1993, a deportation order was the only way in which someone could have placed under a legal obligation to leave and paragraph (h) would therefore have been superfluous.

This argument impressed the majority in the Court of Appeal but there are two reasons why I would reject it. First, one cannot exclude the possibility that the Secretary of State (or, more realistically, his advisers) were simply muddled about what Ex parte Antonissen had decided. There is some support for this view in the passage from the minutes of a statement made on 27 April 1993 by Mr. Alistair Burt, Parliamentary Under Secretary of State for Social Security to the House of Commons Second Standing Committee on Statutory Instruments etc., to which Mr. Pender drew our attention and to which I shall return. But secondly, and more likely, I think it must have been clear after Ex parte Antonissen that there would have to be legislation to create in domestic law a power of removal in the terms which that case had assumed to exist. Such a power was eventually enacted in paragraph 15(2) of the Immigration (European Economic Area) Order 1994, made under section 2(2) of the European Communities Act 1972:

    •  “An E.E.A. national and the family member of such a person may be removed from the United Kingdom –

 

    •  (a) on his ceasing to be a qualified person or the family  member of such a person (as the case may be). . . but he may appeal against the decision to remove him –

 

     

      •  (i) if he is a person to whom paragraph (a) applies, as if he were a person in respect of whom the Secretary of State had decided to make a deportation order and were entitled to appeal by virtue of section 15(1)(a) of the 1971 Act. . . .”

     

    Mr. Plender says on instructions, and I of course accept, that the terms of the 1994 Order were not in contemplation when paragraph (h) was enacted in 1993. I think, however, that it must have been obvious that some legislation to give effect to Ex parte Antonissen was on the cards and that, by using the very language of the Court of Justice, the Secretary of State was providing for any eventuality.

    Mr. Plender says that on the appellants’ construction, paragraph (h) remains superfluous to this day because orders for removal under paragraph 15(2) of the 1994 Order are also deportation orders under section 5(1) of the Act of 1971 and therefore within paragraph (c). I do not think that this is right. The distinction between a deportation order, which requires a person not merely to leave but also not to return, and a power of “removal,” which permits return in changed circumstances, either with leave or as of right, is clearly made in the Act of 1971 itself. Persons who have been refused leave to enter and illegal entrants may be removed under paragraphs 8 and 9 of Schedule 9 but such removal is not inconsistent with being able to return lawfully if they can afterwards obtain leave or are otherwise entitled to do so. They have not been deported. For the purposes of appeal, a decision to remove is treated as if it were a decision to make a deportation order giving rise to a right of appeal under section 15(1)(a), but this provision only serves to emphasise that the removal is not a deportation order.

    Mr. Plender also relies upon the parliamentary statement to which I have referred. In reply to a question from Mr. Kirkwood M.P. about the effect of paragraph (h), Mr. Burt said:

      •  “The purpose of the regulation is to put the policy intention beyond doubt in terms of restricting the payment of income support to E.C. nationals. It deals specifically with the change that we needed to make to legislation following a European Court decision. The rules effectively make clear that, provided that an E.C. national is genuinely seeking work, he or she will be allowed to stay here for a period of six months and may claim income support. If work has not been found by the end of that period, the E.C. national must leave. Other E.C. countries vary in how long they allow basic income support to be paid to a work seeker; some are more generous and others less so. We think that six months is about right. Other persons from abroad–from outside the European Community–have no entitlement to income support except in urgent cases. The regulation deals specifically with job-seekers who are E.C. nationals. That is why the regulation relates to them rather than to other persons from abroad. Definition is, of course, more a matter for the Home Office than for us.”

     

    Mr. Plender says that this statement is admissible in aid of construction under the principle in Pepper v. Hart [1993] AC 593. One of the conditions for admissibility under that principle is that the statement must be clear: see Lord Browne-Wilkinson, at p. 640. I do not think that the minister’s statement passes this test. Nor, probably, did the departmental brief upon which it was based. It says that if the E.C. national has not found work by the end of six months, he “must leave.” Who, in 1993, was to make him leave and under what power? This, it says, is a matter for the Home Office. But the statement is by no means clear as to whether stopping entitlement to income support is to be dependent upon the exercise by the Home Office of such powers as it had or, if not, upon what other event. I find the statement of no assistance.

    There was some discussion in argument of the effect of article 20(1) of the 1994 Order, which provides:

      •  “An E.E.A. national who is in the United Kingdom and the family member of such a person shall be treated as if he were a person who required leave to enter or remain in the United Kingdom on his ceasing to be a qualified person or the family member of a qualified person (as the case may be).”

     

    It was suggested that the effect of this article is to deem a person who ceases to be a qualified person to be a person whose leave has expired and whose presence in the United Kingdom is therefore unlawful. The article was considered by the Court of Appeal in Reg. v. City of Westminster, Ex parte Castelli 28 H.L.R. 616 and was thought not to have this effect. I express no view because whether or not it has had the effect of making the presence of the appellants in this country unlawful, it cannot make the Home Secretary’s letter a requirement to leave. In my view, Phillips L.J. was right in saying that such a requirement would involve the making (after any appeals had run their course) of a deportation order or an order for removal under article 15(2) of the 1994 Order. I would therefore allow the appeals and restore the orders of Popplewell J. and Mr. Commissioner Mesher.

     

    LORD HOPE OF CRAIGHEAD

    My Lords,

    I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Hoffmann. For the reasons which he has given I also would allow the appeals and restore the orders which were made at first instance.

     

    LORD HUTTON

    My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hoffmann. I agree with it and for the reasons he gives I would allow these appeals and restore the orders of Popplewell J. and Mr. Commissioner Mesher.

     

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