|Chief Adjudication Officer v. Wolke (A.P)|
Remilien (A.P) v. Secretary of State for Social Security continued
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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  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:
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:
(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:
Mr. Plender says that this statement is admissible in aid of construction under the principle in Pepper v. Hart  A.C. 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:
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
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.
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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