Chief Adjudication Officer v. Wolke (A.P)
Remilien (A.P) v. Secretary of State for Social Security

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          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] E.C.R. 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.


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."