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

(back to preceding text)

          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] E.C.R. 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.