London Borough of Barnet v Ismail & Anor

These appeals raise issues of some importance in relation to the obligations of local housing authorities to offer assistance to persons from abroad under Part VII of the Housing Act 1996. Both of the respondents are citizens of the Kingdom of the Netherlands living within the London Borough of Barnet, who are economically inactive owing to child-care obligations, and are in receipt of income support. The local authority refused their application for housing assistance, but that decision was reversed by HH Judge Rich QC sitting in the Central London County Court.

The local authority saw itself as applying the policy of, and the understanding of the relevant legislation of, the First Secretary of State, who had issued guidance to the effect that persons from abroad who are not subject to immigration control are only eligible for housing assistance if they have a right to reside in the “Common Travel Area” (the UK, the Republic of Ireland, the Channel Islands and the Isle of Man). By contrast, under Regulations made by the Secretary of State (the Homelessness (England) Regulations 2000, regulation 3, class I) a person who is subject to immigration control and is in receipt of income support is eligible for assistance under the 1996 Act. The view of the Secretary of State, adopted by Barnet, is that persons from the EEA, such as the respondents, are not subject to immigration control in the sense relevant to the Regulations. To the contrary, and on one level paradoxically, Ms Abdi and Mr Ismail strenuously contend in these proceedings that they are indeed subject to immigration control. That is a claim that in most circumstances a person might be very reluctant to admit to. The respondents assert it in order to bring themselves, as persons subject to immigration control, within the exemption set out in regulation 3.

The legislative trail that leads to these contrasting positions on immigration control is as follows. Section 185(2) of the Housing Act 1996 provides that a “person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he is of a class prescribed by regulations made by the Secretary of State.” That latter category includes the provision under the Homelessness Regulations 2000 referred to in §2 above. By section 185(3) of the Housing Act the Secretary of State may make provision by regulations as to “other descriptions of persons” who are to be treated as persons from abroad who are ineligible for housing assistance. As the judge pointed out in §6 of his judgment, that must mean persons other than those subject to immigration control, those latter being the description of persons addressed in section 185(2). Under that power, regulation 4 of the Homelessness Regulations renders ineligible anyone who is not habitually (that is, by right) resident in the Common Travel Area, save in certain special cases, none of which apply to the respondents. That is why the only way in which the respondents can obtain a right to housing assistance is by bringing themselves within class I of regulation 3, as a person subject to immigration control who is in receipt of income support.

That crucial condition is, for the purposes of section 185(2) of the Housing Act, to be interpreted according to section 13(2) of the Asylum and Immigration Act 1996: a person is so subject to immigration control if he is “a person who under [the Immigration Act 1971] requires leave to enter or remain in the United Kingdom (whether or not such leave has been given)”. The terms of section 13(2) of the 1996 Act can only be understood in the context of the Immigration Act 1971, which underpins them and, as we have seen, is specifically referred to in the 1996 Act. The scheme of the 1971 Act was, put shortly, that only persons having the right of abode in the United Kingdom are free to live in and come and go to and from this country. By section 1(2) of the Act, other persons may only live in the United Kingdom with permission and subject to such regulation as the Act provides. The advent of the European Union required special arrangements to be made for nationals of member states of the Union, such as are the present respondents; but those arrangements are still within the framework of and subject to the assumptions of the 1971 Act. Those special arrangements are to be found in section 7 of the Immigration Act 1988. That provides that a person does not require leave under the 1971 Act to enter or remain in the United Kingdom if he is entitled to enter or remain in the United Kingdom “by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.” The respondents do not assert (or in the unusual structure of this case it might be more accurate to say, do not admit to) any enforceable Community right, but reference must be made to the relevant provision made under section 2(2), the Immigration (European Economic Area) Regulations 2000.

By regulation 12, an EEA national must be admitted to the United Kingdom if he produces on arrival a valid identity card or passport issued by an EEA state. By Regulation 14 an EEA national is entitled to reside in the United Kingdom “without the requirement for leave to remain under the 1971 Act” for as long as he remains a qualified person. The respondents are not qualified persons in the sense of the Regulations; and by Regulation 21(3)(a) a person who is not a qualified person may on that ground taken by itself be removed from the United Kingdom.

On the basis of these provisions, the issue of whether the respondents are subject to immigration control, as defined in section 13(2) of the 1996 Act, would appear to be simple. They do not require leave to enter the United Kingdom, because Regulation 12 so provides. But it would seem clear that they require leave to remain here under the 1971 Act, because by section 1 thereof all persons other than those with a right of abode require either such leave or exemption from the need to obtain such leave; and the only relevant exemption in the specific scheme introduced to deal with EEA nationals, Regulation 14, does not apply to these respondents. However, Mr Vajda QC for Barnet, supported by Mr Paines QC for the Secretary of State intervening, strongly submitted that that view was wrong. An unqualified EEA national did not “require leave” to remain in the United Kingdom, therefore was not subject to immigration control in the sense defined in section 13(2) of the 1996 Act. Rather, he was in a sui generis position in that he was able to stay, without leave, until the Secretary of State took steps to remove him under Regulation 21(3)(a).

The argument on this point ranged fairly widely, but in the end it came down to a short point of construction. Mr Vajda said that the phrase “requires leave to remain in the United Kingdom” refers, and refers only, to a case where a person is legally obliged to make an application for leave in order to remain. There was no such requirement on EEA nationals: they could stay until removed, and were committing no breach of duty, and certainly no criminal offence, by not applying for leave. So the respondents and, it would seem, all unqualified EEA nationals fell outside the terms of section 13(2).

I am wholly unable to accept that submission. It fails primarily on a simple point of language. To say that a person requires x is to use the verb to refer to that person’s needs or requirements, in this case that he needs leave to remain. It is not to say that that person is under an obligation to seek or apply for such leave. If the draftsman had intended that, he would have had to say something such as, a person who is required to apply for leave to remain.

That view is strongly borne out by section 7 of the 1988 Act, cited in §4 above, which states that “a person shall not under [the 1971 Act] require leave to enter or remain in the United Kingdom” where he is entitled to do so by regulation. Assuming as one must that the draftsman of the 1996 Act had the locution of the 1988 Act well in mind, if 1996 means what Barnet says it does, and “requires leave” means “is legally obliged to make an application for leave”, then 1988 would be saying that a person entitled to remain by regulation is forbidden to, “shall not”, apply for such leave in the given cases. That would at best seem to be supererogatory. The explanation for that provision is, rather, that advocated by Mr Blake QC: by section 1(2) of the 1971 Act a person without right of abode has to have leave to be here unless exempted, and that is what both section 7 of the 1988 Act and section 13(2) of the 1996 Act are addressing.

Quite apart from these problems, it is extremely difficult to see why Parliament should have legislated in the terms that Barnet said that it did. We asked the parties to identify a category of persons who are required to apply for leave to remain, as opposed to needing such leave to regularise their immigration status. On the appellants’ case, EEA nationals who are unqualified persons are not obliged to apply for leave to remain, so do not fall under the appellants’ interpretation of “requires leave to enter or remain” in section 13(2) of the Asylum and Immigration Act 1996; but there must be some other category of persons who do require such leave, in the sense contended for by the appellants, since otherwise the draftsman of that sub-section would seem to have addressed himself to a non-existent group.

The Secretary of State, supported by Barnet, drew attention to various categories of person other than EEA nationals who require leave to enter or remain in the terms of section 13(2). Those included persons with limited leave to enter who overstay; visiting seamen who are caught by section 8(1) of the 1971 Act; and overstaying diplomats or members of visiting armed forces. Some, but not all, of those persons will commit an offence under section 24 of the 1971 by remaining in the United Kingdom. None of them are subject to the specific power to remove by which unqualified EEA nationals are governed, under regulation 21(3)(a) of the Immigration (EEA) Regulations 2000: see §5 above. That section 24 catches some, but not all, of the different categories of persons to whom section 13(2) does, on the appellants’ construction of it, apply led to the submission that the obligation to make an application for leave to remain was to be found in the commission of a criminal offence by those subject to section 24; but additionally in their cases, and as a sole reason in the cases to which section 24 does not extend, in the lack of right to be here without permission that is to be found in section 1(2) of the 1971 Act (on which see §4 above).

I fear that I was unpersuaded by those submissions. A person who can be prosecuted for being here without leave will be well advised either to apply for (and obtain) that leave, or to emigrate. But it is impossible to say that that places him under a legal obligation actively to apply for leave. If it were otherwise, he could be prosecuted for a failure to apply, whatever the actual or likely outcome of the application might be. But that is not what section 24 provides. The overstayer commits an offence by the raw fact of being here without leave, whatever steps he has or has not taken to obtain that leave. And the other alleged source of the obligation, the terms of section 1(2), are far too general and prefatory to impose, in themselves, any positive obligation on anyone to do anything.

I accordingly conclude that, if the appellants were right in their construction, section 13(2) would not apply to anyone. That would have serious consequences within that Act. In particular, section 8 of the 1996 Act imposes penalties on an employer who employs “a person subject to immigration control” who does not have valid leave to enter or remain. On Barnet’s construction of that expression, section 8 and the offence that it goes to the trouble of creating would seem to beat the air. And even if that is not so, the whole emphasis of section 8 relates to whether leave has been granted, and not to whether leave has been applied for. The obvious construction of section 13(2) in practical as well as in verbal terms is therefore what its words say: that everyone is subject to immigration control who cannot lawfully remain in the United Kingdom without leave to do so. That construction extends to the present applicants.

We were much pressed with the judgments in this court in R v City of Westminster ex p Castelli (1996) 28 HLR 616. The issue in that case was whether the applicants, persons in substantially the same position as the respondents in our case, were “not lawfully here”, a locution drawn from the judgment of Dunn LJ in R v Hillingdon LBC ex p Streeting [1980] 1 WLR 1425 at p1437, and therefore by operation of a judge-made rule not eligible for housing assistance. The court pointed out that by staying in this country the applicants committed no criminal offence, at least until steps were taken to remove them; and, importantly for our case, were under no obligation to seek leave to remain here: see per Evans LJ at p 626 and per Swinton Thomas LJ at p 628. It could not therefore regard their presence here as unlawful. While it is true that the court may appear to have adopted the test advocated by Barnet, it did not do so in the context of the particular language of section 13(2), which latter post-dated the decision in Castelli. And the court was not concerned with that specific problem of construction, but with the more general issue of the unlawfulness of the party’s presence in the United Kingdom. I am unable to think that what was said in Castelli can drive us to a construction of section 13(2) that the wording of that section simply does not support.

We were also read very substantial extracts from the speech of Lord Hoffmann in Chief Adjudication Officer v Wolke [1997] 1 WLR 1640. I will be acquitted of discourtesy in not analysing those arguments, since that case also was concerned with issues that do not arise before us.

Mr Paines for the Secretary of State went beyond Mr Vajda’s submissions in one respect, advancing the bold argument that “requires leave to enter or remain in the United Kingdom” is a composite expression, addressing not two cases but one. A person falls outside it if he does not require leave in one or other of the cases. EEA nationals did not require leave to enter, so they were not subject to immigration control irrespective of their position with regard to leave to remain. Quite apart from the difficulty of extracting that meaning from the bare wording of section 13(2), the submission must fall when tested against the provisions of the 1971 Act, in the context of which, it must be reiterated, section 13(2) has to be read. That Act clearly makes a distinction between leave to enter and leave to remain, for instance in section 3(1)(b). The draftsman of section 13(2) merely reflected the disjunctive nature of the two cases in the principal Act by his use of the connexion “or”.

It is agreed that there is no significant difference between the cases of the two respondents. I would dismiss the appeals in both cases.

I agree. As my Lord observes at §5 above, Regulation 14 of the Immigration (European Economic Area) Regulations 2000 gives an EEA national an entitlement to reside in the United Kingdom “without the requirement for leave to remain under the 1971 Act” for as long as he remains a qualified person. If he ceases to be a qualified person, it follows that he no longer has an entitlement to reside in the UK, and that he does from then on require leave to remain under the 1971 Act. It seems to me that such a person is clearly “subject to immigration control” for the purposes of the Homelessness (England) Regulations 2000. Mr Ismail and Ms Abdi may well never have been qualified persons. There is, however, no reason to treat their status in this respect as being different from that of an EEA national who once was, but is no longer, a qualified person. That seems to me to support the reasoning in my Lord’s judgment, with which I agree, for saying that the judge was right and that the Respondents are correctly identified as persons subject to immigration control.

I also agree.