Couronne & Ors v Bontemps & Ors

In a judgment handed down on 30 June 2006, Bennett J, sitting in the Administrative Court of the Queen’s Bench Division, dismissed two applications for judicial review in which the two groups of appellants in this court were the claimants. With his permission, they now appeal against that decision.

I am content to take my summary of the main issues arising in these two appeals from the opening paragraphs of the helpful skeleton argument for the appellants provided by Mr. Rabinder Singh QC and Mr. Simon Cox. They state: -

Mr. Singh and Mr. Cox point out in a footnote that the appellants sought relief by way of judicial review, firstly because the Social Security Appeals Tribunal is not empowered to make a finding of unlawful racial discrimination; and, secondly, whilst the county court can entertain proceedings under RRA 1976 regarding JSA, it has no jurisdiction to find that the JSA regulations are unlawful. No point was taken either here or below on the appellants’ use of judicial review, and both the judge and this court were invited to deal with the two cases as applications to quash the Secretary of State’s refusal to exempt the appellants from the habitual residence test.

So far as what I will identify as “the rationality argument” is concerned, the appellants’ cases struck me as what can properly be described as straightforward applications for judicial review, to which the normal public law criteria apply. In relation to the discrimination aspect of the claim, however, the Secretary of State’s application of the habitual residence rule would only be unlawful if it amounts to an act of discrimination. Thus both the judge and this court were invited to find, first and foremost, that the habitual residence rule discriminated against the appellants under RRA 1976 (as amended). Alternatively, however, the appellants’ fall back position was that the rule breached their rights both (a) under ECHR; and (b) under Council Directive 2004/43/EC (the Race Directive) made pursuant to the Treaty establishing the European Community (the Treaty).

For my part, I am also prepared to decide these appeals on the basis that what Mr. Singh and Mr. Cox say about the appellants in the following paragraphs of their skeleton argument is correct:-

As both appeals raised identical issues, both groups of appellants were represented before us by Mr. Singh and Mr. Cox (the latter having appeared for them before the judge). Equally, although the Secretary of State for Work and Pensions was a respondent to both applications for judicial review, and the First Secretary of State was a respondent to the second application, their interests did not diverge, and they were represented by Mr. John Howell QC and Mr. Tim Ward, both of whom had also appeared before the judge. For ease of reference, I propose henceforth to merge the two departments under the single designation of “the Secretary of State”. The two local authorities concerned likewise had identical interests, and Crawley Borough Council represented before us by Mr. William Okoya (who had also appeared before the judge).

We are grateful to all counsel for compressing complex arguments into the one and a half days set aside for the hearing of the two appeals. Inevitably, at the conclusion of the argument, we reserved judgment. Regrettably, as the case was heard towards the end of the summer term, this has meant that our decision would not be available to the parties until the Michaelmas term.

As will be apparent from the summary provided by Mr. Singh and Mr. Cox, these two appeals constitute a further, albeit somewhat differently focused, chapter in the unhappy history of the relationship between the British Government and former inhabitants of the BIOT. That history has been retold several times in previous proceedings, and has only a limited relevance to the current appeals. The diligent reader will find it set out; (1) in the decision of the Divisional Court in Regina (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs and another [2001] QB 1067 (Bancoult 1); (2) in the decision of Ouseley J in Chagos Islanders v. The Attorney-General and Her Majesty’s British Indian Ocean Territory Commissioner [2003] EWHC 2222 (QB) and Appendix A to that judgment; and latterly (3) in the decisions both of the Divisional Court and this court in The Queen on the Application of Louis Olivier Bancoult v. Secretary of State for Foreign and Commonwealth Affairs [2006] EWHC 1038 (Admin), [2007] EWCA Civ 498 (Sir Anthony Clarke MR, Waller and Sedley LJJ) (Bancoult 2).

In Bancoult 2 in this court, the judgments were handed down on 23 May 2007, well after the decision of Bennett J. It is, however, to be noted that in Bancoult 2, this court unanimously dismissed the Secretary of State for Foreign and Commonwealth Affairs’ appeal against the decision of the Divisional Court, which had quashed section 9 of the BIOT (Constitution) Order 2004 and (inter alia) had made a declaration that section 5(1) of that Order could not lawfully be applied to any person who is a British overseas territories citizen by virtue of his or her connection with BIOT, except in respect of his or her entry to, or his or her remaining in, Diego Garcia.

The effect of this court’s decision in Bancoult 2 (subject, of course, to any appeal by the Secretary of State for Foreign and Commonwealth Affairs to the House of Lords, for which we understand permission has been sought) is undoubtedly to render unlawful the British government’s attempts to prevent the former inhabitants of the Chagos Islands and their descendants (a group which includes the appellants) from returning to the islands. As Bennett J commented, whether the Chagossians will ever be able to return to the islands remains to be seen.

We are not, of course, concerned with that issue. The questions debated in Bancoult I and Bancoult 2 are of relevance to the current appeals principally in so far as they form part of the appellants’ argument that the Secretary of State acted irrationally in failing to take into account the British government’s unlawful behaviour and its responsibility for the appellants’ circumstances when refusing to disapply the habitual residence rule relating to their applications for social security and housing benefits. Dispiriting and important in other contexts as the history is, therefore, I see no reason to set it out in any further detail.

I also need, I think, to make it clear at the outset that, in my judgment, this court is concerned with a series of relatively narrow, albeit important legal questions in the fields of public law, discrimination and statutory interpretation. It follows that, whilst I share Bennett J’s sympathy for the plight of the appellants, neither that sympathy nor – self evidently - any political considerations can enter either into this court’s evaluation of the issues or its adjudication on them.

The judge raised the underlying point in the first paragraph of his judgment:-

When the appellants’ skeleton argument was produced (it is dated 3 November 2006) the final decision of the Social Security Commissioner on the appellants’ claims was not known. We now know that the Commissioner has held that the appellants had become habitually resident in the United Kingdom after a period of two months residence (see the decisions of the Commissioner CJSA / 1223 and 1224 of 2006 given on 21 February 2007). The Secretary of State, as I understand the matter, does not challenge that conclusion.

We were also told by Mr. Howell that the appellants in the Couronne case exercised their right to appeal against the decision taken by Crawley Borough Council in respect of homelessness assistance, but that they withdrew their appeals on the basis that they had become habitually resident after being here for over five months and that a new application for assistance would be considered. We were also told, however, that these appellants were then each found not to be in priority need and provided only with advice and information about obtaining housing for themselves. It also appears that no review of those decisions was requested, nor was any appeal made against them.

It was common ground, as I understood it that as a matter of English domestic law, the habitual residence qualification for British citizens resident in the United Kingdom in order to claim what I can loosely call for this purpose “state benefits” was neither irrational nor unlawful. The appellants’ complaint was that by including British subjects resident in the Republic of Ireland, whilst at the same time excluding the appellants, the “habitual residence” rule discriminated against them.

Furthermore, as appears from the extract from the appellants’ skeleton argument which I have set out at paragraph 5 above, and from the decision of the Commissioner identified in paragraph 14, the appellants are now undoubtedly habitually resident in the United Kingdom, and most of them are in employment. It is therefore equally apparent – as Mr. Singh and Mr. Cox immediately acknowledged – that the practical consequence for the appellants of success in these appeals would be those identified by the judge, namely the payment of a modest sum of JSA to the appellants covering the period between their arrival in the United Kingdom and the date on which the Social Security Commissioner deemed habitual residence to have been acquired. At first blush, although we have not been given the figures, it is likely that this sum will be disproportionately small when compared with the overall costs of the litigation on the issues raised in these appeals.

Despite these matters, and no doubt in part at least for the reasons advanced by Mr. Singh and Mr. Cox in paragraph 12 of the skeleton argument, set out in paragraph 5 above, we acknowledge that a point of principle is involved, and neither Mr. Howell nor Mr. Okoya invited us to dismiss the appeals on the ground that they were academic.

Before turning to the relevant statutory provisions and the arguments addressed to us, it is, I think, important to identify the following three preliminary points, all of which were common ground. The first, as I have already stated, is that the appellants are (and at all material times were), undoubtedly, British citizens with the right to reside in the United Kingdom. With three exceptions, all were born in Mauritius of parents, one or both of whom came from the Chagos Islands in the BIOT. The three exceptions had been born in the Chagos Islands, and left when they were children.

Secondly, it appears to be common ground that prior to their arrival at Gatwick Airport on 8 and 20 October 2004 respectively, none of the appellants was habitually resident in any part of the United Kingdom or the Republic of Ireland.

Thirdly, there was no dispute before us about the manner in which habitual residence is acquired as a matter of English law. Nobody took issue with the proposition that it will take an individual some time to acquire habitual residence in the United Kingdom - the amount of time and the date upon which habitual residence is acquired being questions of fact in each case.

The principal reason there was no dispute on the latter point is because it was for our purposes conclusively settled by the decision of the House of Lords in Nessa v Chief Adjudication Officer [1999] 1 WLR 1937. Two passages in the speech of Lord Slynn of Hadley in that case were identified by Mr. Howell as particularly pertinent. At [1999] 1 WLR 1937 at 1942 Lord Slynn of Hadley said:-

It is a question of fact to be decided on the date where the determination has to be made on the circumstances of each case whether and when that habitual residence had been established. Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, "durable ties" with the country of residence or intended residence, and many other factors have to be taken into account. The requisite period is not a fixed period. It may be longer where there are doubts. It may be short.

Later on the same page, he added -

If Parliament had intended that a person seeking to enter the United Kingdom or such a person declaring his intention to settle here is to have income support on arrival, it could have said so. It seems to me impossible to accept the argument at one time advanced that a person who has never been here before who says on landing, 'I intend to settle in the United Kingdom' and who is fully believed is automatically a person who is habitually resident here. Nor is it enough to say, 'I am going to live at X or with Y.' He must show residence in fact for a period which shows that the residence has become 'habitual' and, as I see it, will or is likely to continue to be habitual.

The judge identified the relevant statutory and treaty provisions in different parts of his judgment. For ease of reference, I propose to adopt the judge’s summary, but to collect the various provisions together at this point, albeit under different headings. I will then make reference back to the various paragraphs and provisions as may be necessary.

Entitlement to JSA

Given that the domestic “habitual residence” rule is not impugned, the only relevant statutory material relating to an entitlement to JSA is regulation 85(4) of the Jobseeker's Allowance Regulations 1996 (the 1996 Regulations). This provides that:-

a “person from abroad"... means a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

The geographical area identified in regulation 85(4) of the 1996 Regulations is known as the Common Travel Area, and will henceforth be abbreviated to the CTA. There is no dispute about the appellants being “persons from abroad”. It is, moreover, common ground that “persons from abroad” do not qualify for JSA.

Entitlement to Homelessness Assistance under the Housing Act 1996 (HA 1996) and the Homelessness (England) Regulations 2000 (HER 2000)

So far as is material in relation to homelessness assistance, HA 1996, section 185 provides that:-

(1)

A person is not eligible for assistance under this Part if he is a person from abroad who is ineligible for housing assistance.

(3)

The Secretary of State may make provision by Regulations as to other descriptions of persons who are to be treated for the purposes of this Part as persons from abroad who are ineligible for housing assistance.

Regulation 4 of HER 2000 provides as follows :-

Description of persons who are to be treated as persons from abroad ineligible for housing assistance.

The claim for race discrimination: RRA 1976 as amended by the RRA 1976 (Amendment) Regulations 2003 (the 2003 Regulations)

The relevant provisions of the RRA as amended by the 2003 Regulations (which came into force on 19 July 2003) are as follows (the amendments are in italics):-

In relation to public authorities, RRA 1976, sections 19B and 19C provide as follows: -

Part VI of RRA 1976, however, contains some general exceptions from Parts II to IV. These are as follows: -

Part X of RRA 1976 contains various supplemental provisions, of which only the following is relevant for present purposes:-

The Race Directive

As the judge pointed out, RRA 1976 was amended to give effect to the Race Directive issued by the Council of the European Union. As it remains a part of the appellants’ case, however, that the discrimination practised against them was rendered unlawful by the direct effect of the Race Directive, it is necessary to set out provisions of the Directive which are relevant to these appeals:-

Article 13 of the Treaty

Article 13 of the Treaty (which has been taken by counsel from the consolidated version as at Christmas 2002) provides:-

The Human Rights claim: Sections 6 and 7 of the Human Rights Act 1998 (HRA 1998) and ECHR Articles 8, 14 and Article 1 of the First Protocol (1-1)

Although these are very familiar, it is, I think necessary to set them out. The relevant provisions of HRA 1998, sections 6 and 7 are in the following terms:

ECHR Article 8 provides: -

Although a brief summary does no justice to a careful and well-reasoned judgment, it seems to me clear that the judge reached four essential conclusions. These were:

It is, I think, also clear that his reasoning process included the following conclusions. For ease of reference, I will continue to number the points sequentially. I deal first with his reasoning on the discrimination issue:

In relation to the rationality argument, the judge’s essential reasoning seems to me to be the following : -

Consequent upon this analysis, I do not propose to cite extensively from the judge’s judgment. However, in the light of particular submissions made by Mr. Singh, I think it necessary to cite at this point two paragraphs of it which deal with the rationality argument relating to the conduct of the British Government: -

The judge thus concluded on this point that the appellants’ real complaint was that the implementation of the habitual residence test was not, in relation to them, a proportionate means of achieving the government’s legitimate aim. The reality, however, was that the appellants were seeking to be treated better than their comparator group and thus seeking a complete exemption from the habitual residence test. In this context, the argument as to exile had no relevance, because it was an exemption which they would have had to seek even if the habitual residence test had been framed without reference to the Irish.

Six grounds of appeal are contained in the two appellants’ notices. They are as follows: -

Mr Singh helpfully identified six issues as arising on the appeal, which he related to the grounds of appeal in the following way:

It will, I think, be immediately apparent from Mr. Singh’s summary, that in this court the primary emphases of the appellants’ arguments were; (1) on what I will describe as the “rationality challenge”; and (2) on RRA 1976, section 41(2). This judgment will, accordingly, grapple principally with these two points. I acknowledge that I have not found the different strands of the argument always easy to separate, and it seems to me that a number of the points raised are, indeed, closely inter-related. This may, I fear, lead to an element of repetition in this judgment, which I will do my best to avoid.

As I have already stated, the judge dealt with what I have described as “the rationality challenge” only after he had decided against the appellants on the discrimination claim. Mr. Singh, however, began with the rationality challenge, and at the outset of his submissions advanced a proposition which, he submitted, if we accepted it, was effectively determinative of the appeals in the appellants’ favour. I therefore propose to deal with this part of the claim first. As I understood it, the point was as follows.

The courts of this country, Mr. Singh submitted, had twice held that the actions of the government in preventing the return of the Chagossians to their homeland were unlawful. Mr. Singh argued that this consideration could not be legally irrelevant to the Secretary of State’s decision not to exclude the appellants from the habitual residence test. To the contrary, he argued, it was an important feature to bear in mind, not least because we were talking about British citizens with a right of abode in the United Kingdom. In crude terms, the government could not ignore its own illegal conduct, or assert that it had no responsibility for the Chagossians’ circumstances. Since the unlawful acts of the British government had brought about the Chagossians’ plight, it was necessary, at the very least, for the Secretary of State to take that factor into account when making his decision on whether or not to exempt the appellants from the habitual residence requirement. There was no evidence that he had done so. His decision had, accordingly, been taken without reference to a material consideration: it was thereby seriously flawed and fell to be quashed.

Mr Singh acknowledged that there was no special test of irrationality in respect of subordinate legislation. He therefore accepted that the test was the classic Wednesdbury test (see the decision of this court in O’Connor v Chief Adjudication Officer [1991] 1 FLR 1200).

I was, I have to acknowledge, initially attracted by this argument, which, superficially at least, has an engaging moral and legal simplicity about it. I have, however, on further consideration, come to the conclusion that it is unsound. I reach that conclusion in part for the reasons which the judge gives in paragraph 87 of his judgment (which I have set out in paragraph 39 above). In addition, however, it seems to me that, as a matter of public law, there is simply not a sufficient nexus between the unlawful acts of the British government and the Secretary of State’s decision not to exempt the appellants from the habitual residence requirement to render the British Government’s unlawful behaviour a relevant consideration for the Secretary of State to be required to take into account.

As a matter of law, it seems to me that the consequence of the government’s unlawful acts has been to prevent the appellants from returning to the Chagos islands. The immediate effect of its actions was to require the Chagossians to move to Mauritius, where most of the appellants were born, and where they were undoubtedly habitually resident immediately prior to coming to the United Kingdom. However, in making what was plainly a choice to come to the United Kingdom, the appellants are, in my judgment, in no different a position from any other indigent British citizen habitually resident abroad (that is, outside the CTA) who decides to return to live in the United Kingdom.

The British government did not require the appellants (or even encourage them) to come to the United Kingdom, although Parliament plainly facilitated their right of entry and abode by the grant of citizenship. But once again, in my judgment, they are in the same position as any other British citizen resident abroad, who becomes destitute and decides to return to the United Kingdom. For every such citizen, there will be a period of time in which he or she is not habitually resident in the United Kingdom: see Nessa v Chief Adjudication Officer (supra). It would not, I think, be considered irrational for the Secretary of State to refuse to alter the habitual residence rule for any such citizen. In my judgment, therefore, the fact that the British government has acted unlawfully in refusing to allow the Chagossians to return to the Chagos Islands does not mean that the Secretary of State is required to take the unlawful actions of the British government into account when declining to alter the habitual residence rules to accommodate their particular situation.

Mr. Howell deployed a battery of arguments on the irrationality point, including the argument that the decisions of the Divisional Court in Bancoult I and of this court in Bancoult II post-dated the decisions impugned in these appeals. He was, in addition, at pains to point out that the government had not only reached an accommodation with the Chagossians, but had provided a substantial sum of money to the Mauritian government to facilitate their settlement in Mauritius. He therefore sought to meet the rationality challenge fairly and squarely on the facts.

Speaking for myself, I was not impressed with that argument, which plainly, cannot render the government’s behaviour in relation to the islanders lawful. Furthermore, although a degree of retrospectivity is involved, the government’s refusal to permit the Chagossians to return to their homeland – whatever the practical implications of their wish to do so – represents a continuing illegality, and it would, with all respect of Mr. Howell, seem to me unreal to seek to treat the decisions in Bancoult I and Bancoult 2 as being of no effect.

My rejection of much of Mr. Howell’s argument on this point, however, does not lead me to resolve it in the appellants’ favour. Mr Howell’s overarching argument was that the habitual residence requirement, as currently formulated, was a proportionate means of achieving a legitimate aim. He thus argued that the government of the United Kingdom was entitled to operate a policy designed to secure it.

That benefits were only provided for those whom it legitimately considered should be supported by the British tax payer, and that the habitual residence rule was a rational means to that end. It followed, he argued, that the extension of the policy to the CTA was likewise rational, and the government of the United Kingdom was entitled to operate a policy which sought to discourage impecunious British citizens resident outside the CTA from returning to live in the United Kingdom. Nobody suggested that an exemption should be made for any such citizens.

In addition, Mr. Howell argued that the Secretary of State had considered fully and carefully whether or not to exempt the Chagossians from the habitual residence rule. He had declined to do so for all the reasons set out in the evidence. The British government had not required the appellants to leave Mauritius: there was no doubt that they were legally entitled to remain there and to take advantage of the albeit more limited benefits system available in that country. Their decision to come to the United Kingdom was a matter of choice.

As a matter of public law, the appellants – as I have already made clear - do not dispute the government’s entitlement to enact a system of domestic social security which includes the habitual residence rule. Their objections relate to its application to themselves in the light of their particular circumstances, and particularly in so far as they allege that it discriminates against them under RRA 1976. The habitual residence criterion for social security benefits is, of itself, in my judgment, plainly both lawful and rational. It applies to all British citizens, irrespective of whether or not they have been displaced by the British government. In these circumstances, I do not think that the Secretary of State’s decision not to alter the rule for the appellants can be considered irrational because he has left out of account any consideration of the unlawful conduct of the government as set out in Bancoult I and Bancoult II.

Like much of the argument, this point seems to me to verge on inviting this court to make a moral or a political judgment. That, of course, is something which – self-evidently - this court cannot do: - see Laws LJ in Bancoult I [2001] QB 1067 at 1079G-H:-

The decision whether or not to exempt the appellants from the habitual residence test is plainly a matter for the Secretary of State. This court can only interfere if his decision is unlawful on well established public law grounds. Speaking for myself, I accept the argument that the decision would be unlawful if, in making it, the Secretary of State had left out of account a factor which no reasonable Secretary of State, addressing his mind to the question, would have left out of account. However, even assuming for the moment that the Secretary of State did fail to take into account the findings of the Divisional Court and this court in Baucoult 1 and 2, I am nonetheless of the opinion that the decision is not thereby rendered liable to be quashed. Mr. Howell is, in my judgment, entitled to argue that the government’s unlawful conduct in preventing the appellants from returning to the Chagos Island is not legally relevant to the Secretary of State’s decision not to exempt them from the habitual residence rule, and therefore does not render the decision irrational and thus unlawful.

Mr. Singh’s subsidiary argument was that the decision not to exempt the appellants from the habitual residence test was irrational because the Secretary of State had exempted the inhabitants of Montserrat from it when they had been displaced and come to the United Kingdom. I am unable to accept that argument. True it is that the Secretary of State’s altered the rule in relation to the inhabitants of Montserrat. For the reasons given by Ms Fleay, and accepted by the judge, however, this seems to me a wholly different situation. The inhabitants of Montserrat were not only rendered destitute by a natural disaster: the same disaster rendered their homeland uninhabitable. In these circumstances, as British subjects, they effectively had no alternative but to come to the United Kingdom. In such circumstances, the Secretary of State’s decision to exempt the inhabitants of Montserrat from the habitual residence rule was plainly rational, but it does not follow, in my judgment, that his decision not to exempt the appellants was irrational.

Powerful, therefore, as some of the appellants’ statements are, their decision to come to the United Kingdom with a view to becoming habitually resident here was a choice, and as I have already stated, in making it they were in no better or worse a position than any destitute British citizen resident abroad who decides to return to the United Kingdom to live. Simple destitution would not, I think, of itself – as a matter of law - be a reason for the Secretary of State to relax the habitual residence rule, and the fact that the Secretary of State, when declining to relax the habitual residence rule in the appellants’ case did not take into account the fact that they were living in poor conditions in Mauritius because of the British Government’s unlawful refusal to allow them to return to the islands from which they originated is not, in my judgment, sufficient to render his decision irrational.

In my judgment, the decision whether or not to relax the rule was, in essence, a political decision for the Secretary of State, to which he must answer to Parliament. In my judgment, therefore, attractively as it was argued, the rationality challenge fails.

It is, I think, important to have the provisions of RRA 1976 section 1, sub-sections (1A) and (1B) clearly in mind when considering the first question under this head, namely does the habitual residence rule discriminate against the appellants? The judge summarised the issue in these words:-

does the test of habitual residence discriminate against the claimants all of whom are Chagossians, as compared to British citizens of Irish ethnic or national origin contrary to RRA 1976 and/or the Race Directive?

I propose to take this issue first, although it was not the first point addressed by Mr. Singh and Mr. Cox. Mr Singh identifies it at point (4) in his list of arguments set out at paragraph 42 above. For ease of reference, I will repeat his essential submission:-

the judge had erred in failing to hold that the discrimination required to be justified was that between British citizens of Irish national or ethnic origin and British citizens of Chagossian or ethnic origin; (Ground 5)

As I have made clear in my summary of his judgment, the judge came to the conclusion that he could answer the question he posed himself without deciding whether or not the appellants shared a common ethnic or national origin which is different from Mauritians or Seychellois. I respectfully agree with him, for the reasons he sets out in paragraph 14 of his judgment: -

First, very little, if any, of the evidence in this case touches, or if it does, only superficially, as to whether the Chagossians have a distinct ethnic origin. Second, neither Bancoult 1 nor Bancoult 2 were concerned, as I read them, with the ethnicity of the Chagossians - it was not an issue in either case. Third, I agree with the submission of Mr Howell QC, for the Secretary of State, that it is sufficient for the court to decide the matter on the basis; (a) the discrimination of which the Claimants complain is based on the advantageous treatment which they say British citizens of "Irish national or ethnic origin" enjoy by virtue of the provisions relating to habitual residence; (b) accordingly, all British citizens who are not of "Irish national or ethnic origin (which, of course, include the Chagossians) are at a disadvantage unless they are habitually resident in the UK, whatever their own particular national or ethnic origin; and (c) that is of itself potentially sufficient to establish a difference in treatment based on national or ethnic origin.

I also respectfully agree with what the judge added in paragraph 15, when rejecting the appellants’ argument that not to find the appellants as a distinct ethnic group robbed them of their ethnic identity, and left them as a sort of hotchpotch of any one who is not of Irish origin for the purposes of this case. The judge rejected that argument with these words:-

For the purposes of the issue of discrimination in this case, the Chagossians are British citizens but of non-British origin and vis-à-vis the requirement of habitual residence in the two relevant sets of Regulations they are in no different position from British citizens of British origin who either have never lived in the UK or are returning after absence abroad and have no habitual residence in the UK. Those British citizens are as much at a disadvantage re the test of habitual residence compared to British citizens of Irish origin who are habitually resident in (the Republic of Ireland). Both these British citizens and the Chagossians are disadvantaged in the same way i.e. they are not habitually resident in the UK and both groups are therefore "persons from abroad" and ineligible for JSA and homelessness assistance.

Mr. Singh and Mr. Cox attacked this reasoning on the ground that it disabled the judge from considering whether the indirect discrimination complained of was justified. I disagree. As I have already made clear, the Chagossians, in my judgment, are for the purposes of the habitual residence rule - no different from any other British citizens who are not resident in the CTA. The question, therefore, is not whether or not the appellants can be identified as a specific racial or ethnic group to whom particular considerations apply because of their particular race or ethnicity: put more broadly, the question is whether or not the habitual residence rule discriminates against all British subjects (of whatever original race or ethnicity) who are not habitually resident in the CTA.

For present purposes there can be no complaint about the treatment of British citizens who are habitually resident in the United Kingdom. They plainly benefit from the habitual resident rule, and are not comparators. There seems to me little doubt, however, that British citizens habitually resident in Ireland are treated differently from all other British citizens habitually resident outside the CTA. The question is whether or not the difference in treatment amounts to discrimination.

If the habitual residence rule excludes all British citizens not resident in the CTA, then it is difficult at first blush to see how the appellants can be the victims of discrimination because of their racial or ethnic origins. If the rule excludes all British citizens apart from those exempted (and for present purposes this means British citizens habitually resident in the Republic of Ireland) the argument has to be that all such citizens are the victims of discrimination.

Speaking for myself, I find it difficult to see how the deliberate exclusion of an entire class (that is, all British subjects throughout the world who are not resident in the United Kingdom or the Republic of Ireland) constitutes discrimination. But even if does constitute a difference in treatment (as it plainly does) the argument then becomes whether or not the Secretary of State can show that the decision to include the Republic of Ireland within the CTA, and to exempt from the habitual rule British citizens habitually resident in the Republic of Ireland is “a proportionate means of achieving a legitimate aim”. In other words, can the Secretary of State establish the defence of justification?

The principal justification in relation to British citizens of Irish origin is, of course, that the CTA is a political construct built upon the long standing relationship between the United Kingdom and what is now the Republic of Ireland. There was abundant evidence of this connection before the judge, and he cited substantial passages from it, notably from the statement of Ms Katherine Fleay, to which I have already referred. I do not think it necessary to repeat that exercise in this judgment. It is, I think, sufficient for me to say that in my judgment, the decision taken in 1994 to extend the habitual residence rule to British citizens living in the Republic of Ireland, a decision sanctioned by Parliament, plainly constitutes justification for the difference in treatment between British citizens such as the appellants (who are not habitually resident in the CTA) and British citizen who are. Indeed, it seems to me on this point that the evidence is overwhelming, and the contrary proposition is not really arguable.

I therefore reject the argument advanced by Mr. Singh and Mr. Cox that by examining only this larger group (that is to say all British citizens not of Irish national or ethnic origin) the judge did not distinguish between the part of that group complaining of discrimination (Chagossian British) and the much larger part of that group (British citizens of British ethnic origin) favoured by the habitual residence test (because they were likely to be resident in the UK). Mr. Singh and Mr. Cox accepted that more favourable treatment of those British citizens habitually resident in the United Kingdom (if it were confined to them) would have been justified. But, they argued, once the state had taken the decision to widen the class beyond that group, and did so in a discriminatory way, by favouring some members of the wider group (i.e. those of Irish national or ethnic origin habitually resident in Ireland) it must bear the burden of justifying where it has drawn the line.

I do not dissent from the proposition contained in the final sentence of the proceeding paragraph, but take the view that the Secretary of State has little difficulty in establishing justification on the basis explained by Ms Fleay.

Mr. Singh and Mr. Cox argued that the judge’s explanation that the Chagossians were ‘in no different position from British citizens of British origin who either have never lived in the UK or are returning after absence abroad and have no habitual residence in the UK’ should be rejected. This, they argued, meant assessing the justification for a requirement by reference to a group defined by their failure to meet that requirement (British citizens of British ethnic / national origin who are not habitually resident in the UK), rather than by reference to a group defined by their national/ethnic origin.

Once again, I respectfully disagree. The habitual residence rule does not simply exclude the appellants. It excludes all British citizens not habitually resident in the CTA. On this particular aspect of the claim there is no relevant distinction to be drawn between British citizens of different racial or ethnic origins. Once one has rejected the rationality argument (as I have), the appellants cannot be entitled to special treatment simply because they are Chagossians. The important and relevant fact is that they are British citizens habitually resident outside the CTA. In that regard they are no different from any other British citizens habitually resident outside the CTA.

As is already clear, the appellants did not dispute that the wider context of a rule and its effect on persons not of the appellants’ ethnic / national origin can be relevant to justification. However, they argued that what had to be justified in the instant case was the difference in treatment between Chagossian British and Irish British. The habitual residence rule, they argued, clearly discriminated indirectly between the Irish British and Chagossian British who met the other requirements of entitlement to the benefits sought, including presence in the UK.

In my judgment this argument fails for the reasons which I have already given, and Mr. Singh and Mr. Cox have understated the Secretary of State’s case in this respect. The simple fact of the matter is that in this context Parliament has decided that the habitual residence rule should equate habitual residence in Ireland to residence in the UK. This was not done merely, as they argued, to avoid disrupting the pattern “of many former residents in Ireland coming to the UK to seek work” and out of concern that “people who moved back and forth between Ireland and the UK might find themselves habitually resident in neither the UK nor Ireland”. I agree that the effect of the rule was clearly to benefit the Irish British population, and that it had no such benefit for all other British citizens not habitually resident in Ireland, including the Chagossian British population. As Mr. Singh and Mr. Cox argued, the appellants had all arrived in the United Kingdom from Mauritius. They had no ties to Ireland. But neither proposition, in my judgment renders the rule discriminatory against the appellants. The justification for which the British government argues applied to all British subjects not resident in the Republic of Ireland – not just to the appellants.

In my judgment, the judge’s approach was correct. The advantages given to British citizens habitually resident in Ireland has its roots in the historical as well as geographical connections between the United Kingdom and Ireland. Parliament’s decision to legislate for the whole of the CTA is, in my judgment, plainly a proportionate means of achieving a legitimate aim. The judge accordingly was in my judgment right when he accepted the three points made on behalf of the Secretary of State.

It follows, in my judgment, that the appellants have not made out a case of discrimination. The difference in treatment of which they complain is not unique to them: it applies to all British citizens habitually resident outside the CTA. It is, moreover, justified for the reasons advanced on behalf of the Secretary of State.

This part of the argument seems to me to be a pure matter of statutory construction. I agree with the judge that the natural and ordinary meaning of the words of section 41(2) exempt from the ambit of RRA 1976 the act of the social security officer / local authority in applying the habitual residence test. It is, however, necessary to examine the arguments advance by Mr. Singh and Mr. Cox to the contrary.

As I understood the argument, Counsel developed it in the following way. They accepted that until RRA 1976 was amended by the 2003 Regulations, acts done in pursuance of a statutory instrument were exempted by section 41(1). This prevented any race discrimination challenge to a decision refusing social security benefit on the grounds of the habitual residence test.

However, the 2003 Regulations, had inserted section 41(1A) into RRA 1976: this is set out at paragraph 30 above. This amendment, they argued, prevented reliance by a respondent upon section 41(1) in cases falling under section 1(1B). It followed that the only part of section 41 upon which the Respondents could now rely was section 41(2)(b).

For their interpretation of RRA 1976 section 41(2), Mr. Singh and Mr. Cox relied on the speech of Lord Lowry in Hampson v Department of Education and Science [1991] 1 AC 171, in which the meaning of section 41(1) had arisen. Lord Lowry, giving the only reasoned speech in the case, had said (at page 181):

“I have set out above the full text of section 41. It introduces over a wide field, namely the subject matter covered by Parts II to IV of the Act of 1976, as exceptions to the Act's general purpose of outlawing discrimination, five cases in which an act of discrimination shall not be unlawful and in each such case the relevant enactment, Order in Council, instrument, condition, requirement or arrangement may be either pre- or post-Act. In view of the wide sweep of these provisions, the exceptions ought therefore, I suggest, to be narrowly rather than widely construed where the language is susceptible of more than one meaning.”

Mr. Singh and Mr. Cox submitted that a rule favouring a class of persons on the basis of their residence in a particular place outside the United Kingdom did not fall within section 41(2). They argued that the words in that sub-section – “the length of time for which he has been present or resident in or outside the United Kingdom or an area within the United Kingdom” - did not immunise a decision made by reference to residence in a particular place abroad. In inviting us to adopt this construction of section 41(2) Mr. Singh and Mr. Cox relied on the following arguments:-

It followed, they argued, that on this construction of RRA 1976 section 41(2) the habitual residence rule was not immunised. That was because it related to residence in an area comprising the United Kingdom and places outside the United Kingdom. Or, if one used the respondents’ description of it as a ‘requirement for residence in Ireland’, it related to residence in a particular place outside the United Kingdom.

Mr. Singh and Mr Cox also argued that the judge had been wrong to find support for the respondents’ construction in two matters upon which the Respondents had not relied. Firstly, the judge had observed that section 41(2) had ‘survived’ since 1976 and had not been altered by the 2003 Regulations, yet no-one had previously sought to suggest it did not immunise the habitual residence test for JSA and homelessness. This point, counsel argued, overlooked the facts that; (a) until the 2003 Regulations came into force in July 2003, requirements of social security secondary legislation were immunised from challenge under the 1976 Act by section 41(1); and that (b) the claims now appealed were issued in November 2004. There was, accordingly, only 16 months between the new law coming into force and its being invoked. In any event, they submitted, if a legal argument was sound, it was immaterial that it has not been advanced before.

The second point on which counsel submitted the judge had been wrong to rely was that since the 2003 Regulations had not amended section 41(2), the inference was that Parliament had intended to continue to immunise the habitual residence test. Mr. Singh and Mr. Cox argued, however, that the lack of amendment by the 2003 Regulations told one nothing about whether the draftsman of those Regulations considered that the habitual residence test needed to be immunised from challenge. As the judge had himself pointed out, there was no evidence that the particular issue had ever been considered.

Skilfully as these arguments were advanced, I find myself wholly unpersuaded by any of them. In my judgment, section 41(2) means what it says. Assuming that the act of discrimination is as asserted by the appellants, it seems to me that the discriminatory act is plainly founded on the basis of the appellants’ place of ordinary residence (Mauritius); alternatively on the length of time they have been present in or outside the United Kingdom. The appellants have been refused benefit because at the time they sought it they were not habitually resident in the United Kingdom and had not been in the United Kingdom long enough to qualify as habitually resident. So far, it seems to me, the appellants fall fair and square within the sub-section.

The additional words, upon which the appellants place so much emphasis are “or an area within the United Kingdom”. In my judgment, this phrase can only have one meaning in this context, and it is the meaning for which the Secretary of State contends – that is to say the sub-section also covers cases in which there is an allegation of indirect discrimination (for example) against the Scots or the Welsh arising out of provisions based on presence or habitual residence in either Scotland or Wales.

On this point, the judge accepted the argument advanced by the Secretary of State. In paragraph 24 of his judgment, he says that:-

I respectfully agree with that analysis. In my judgment, the appellants’ construction is at best extremely strained, and simply does not give the words their natural meaning. Furthermore, I do not think that the judge’s construction of section 41(2) is in any way affected by the matters raised by counsel. As a pure matter of statutory construction, I prefer that for which the Secretary of State argues. It seems to me both to fit the structure of the habitual residence test, and to give the words their natural meaning.

The judge spent a substantial portion of his judgment dealing with this topic. Like him, I have set out the relevant provisions at length. However, there seems to me to be a very short and simple answer to the appellants’ case on the Directive. It is that this is not a case in which the European Community has competence. Thus, as the judge found, the Race Directive cannot be used as an aid to the construction of RRA 1976, section 41(2), nor can it be said to displace or disapply that section.

It was common ground that Article 13(1) of the Treaty (which I have set out at paragraph 33 above) does not confer on the Council power to legislate outside the sphere of Community competence: - see the decision of this court in Gingi v Secretary of State for Work and Pensions [2001] EWCA Civ 1685, [2002] EuLR 37 CA (Gingi), cited extensively by the judge. Mr. Howell also pointed out that Article 13 did not extend to discrimination based on residence or nationality. The prohibition was expressed to extend to “sex, racial or ethnic origin, religion or belief, age or sexual origin”.

This limitation was, Mr. Howell argued, replicated in the Directive. Indeed, Article 3 of the Directive (reproduced at paragraph 32 above was expressed not to cover “differences based on nationality” and was, furthermore expressed to be: -

without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.”

It was, however, accepted by Mr. Howell that the Secretary of State (when determining claims for income-based jobseeker’s allowance) and a local housing authority (when determining applications by homeless persons for assistance) were carrying out their functions as public authorities. It followed, he accepted, that it was unlawful for them in doing so to do any act which constituted discrimination.

Based on this material, Mr. Howell’s submission was very simple. The provisions of the Directive could not be invoked, either for the purpose of disapplying any provision of national law or for the purpose of interpreting it, in cases in respect of which the Community has no power, even if the provision of national law in question may also apply to cases in which the Community does have competence. In this context, Mr. Howell relied both on Gingi and the decision of the House of Lords in R (Hurst) v the North London District Coroner [2007] UKHL 13, 2 WLR 726. In my judgment these arguments are compelling, and the judge was right to accept them.

Mr Singh and Mr. Cox attempted to meet the argument in a number of ways. Firstly, they relied on R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, 10 October 2006. In that case, they argued, the respondent was a British citizen resident in the United Kingdom who complained of discrimination in the criteria for compensation for internment by Japan during the Second World War. She had relied upon the amendments made to RRA 1976 Act by the 2003 Regulations. Even though she clearly lacked any other relevant EC law right, no one had suggested that the discrimination of which she had complained lay outside the scope of the Directive. Counsel pointed out that in this court, Mummery LJ referred at length to the Directive as an aid to interpretation of the amended RRA 1976 Act in her case. In addition, Arden LJ had said of the preamble to the Directive (counsel submitted, rightly) that: “The whole tenor of the preamble is that great importance is to be attached to the elimination of racial discrimination (broadly defined).” The Secretary of State had also dealt with the case on the basis that it was brought within the scope of EC law by the Directive.

Mr. Singh and Mr. Cox also argued that their interpretation of Article 13 was consistent with the language of that provision. They submitted that Article 13 was not expressed to be limited to discrimination in respect of the rights conferred by or under the EC Treaty, but was part of a wider power to legislate against discrimination as part of achieving the tasks of the Community. They also argued that the history of the Community’s legislation demonstrated its aim to prohibit discrimination, on the grounds now dealt with by Article 13, outside (as well as within) the field of exercise of Community rights.

It would, they argued, be very surprising if the Member States had intended Article 13 to be so narrow a power that the Community would be required to continue to have recourse to Article 308 of the Treaty for prohibiting discrimination in respect of the kind of matters with which Directive 79/7 dealt. The much more likely answer is that the Member States intended Article 13 to be, in the language of Article 308, the ‘necessary power’ to attain ‘the objectives of the Treaty’ which were now specifically to include combating discrimination on the grounds specified in Article 13. Previously, they argued, Community law had been concerned to combat discrimination on the relatively narrow grounds of nationality of different Member States and on sex in the field of employment and pay.

Mr. Singh and Mr. Cox further argued that the Secretary of State’s interpretation was inconsistent with the language of the Directive, which the judge had accepted as ‘very wide’. If that were right, the effect of the Directive would be very much narrower than that of its broad language. It would not require those Member States which lack laws prohibiting racial discrimination to introduce them in respect of their own nationals. Unlike other provisions in the Treaty, the Directive was not expressed to be limited to a person exercising a Community right. Even third-country nationals were not excluded per se.

Mr. Singh and Mr. Cox further argued that the travaux preparatoires for the Directive showed that it was intended to prohibit discrimination generally, and that the arguments advanced by Mr. Howell represented a shift in the British Government’s understanding of the scope of the Directive: - see Elias. Counsel submitted that Gingi afforded no assistance on the contentious question in this case, namely: what is the Community’s competence in the field of discrimination? Ms Gingi’s case had relied upon Council Regulation 1408/71, and as she had conceded, that Regulation ‘addresses free movement within the Community of workers’ and so did not apply to her. The issue in the instant case was quite different. Article 13 did not address free movement of workers: it addressed discrimination. The judge below was entitled to frame the question in the same language as that used in Gingi . However, he had been wrong to think that the answer in Gingi assisted with deciding the answer here.

Finally, Mr. Singh and Mr. Cox relied on the decision of the European Court of Justice in Mangold v Helm (Case C-144/04), a case concerning a contract of employment which discriminated on grounds of age.

Having set out the appellants’ arguments in some detail, although not in the detail in which they were advanced to us I am, I have to say, left with the clear impression that Mr. Singh and Mr. Cox have, with all respect to them, been obliged to adopt arguments of considerable sophistication to meet what is, in essence, a very simple point. In my judgment, the EC simply does not have competence to legislate for the way in which the United Kingdom decides to deal with this particular matter, or the manner in which the Secretary of State treats the appellants in relation to the habitual residence rule for social security and housing assistance. The terms of Article 13 of the Treaty and the Directive are clear. Although Article 12 EC prohibits nationality discrimination, no allegation of nationality discrimination was raised in the proceedings. No such allegation was raised as the Appellants have British nationality. It follows that RRA 1976, section 41(2) does not offend against either the Treaty or the Directive. None of the complex arguments advanced by Mr. Singh and Mr. Cox seem to me to dent that very simple proposition.

Partly, I accept, due to the limited time available for oral argument, Mr. Singh and Mr. Cox did not develop grounds 3 and 4 of their grounds of appeal, which they summarised as the sixth issue arising on the appeals, namely the proposition that the judge was wrong to hold that the appellants’ case fell outside the ambit of ECHR Article 1-1 and / or Articles 8 and 14.

Speaking for myself, I find it at first blush difficult to see how the appellants can succeed under HRA 1998 and ECHR if, as I have already decided, they fail on the rationality argument, RRA 1976 and on the Directive. However, both counsel and the judge deal with the point at some length, and it seems to me that the arguments relating to it must be addressed. In what is already an overlong judgment, however, I do not propose to embark upon a discussion of this court’s decision in Esfandiari and others v Secretary of State for Work and Pensions [2006] EWCA Civ 282 (Esfandiari), the decision of the Grand Chamber of the ECtHR in Stec or Campbell v South Northamptonshire DC [2004] EWCA Civ 409, [2004] 3 All ER 387 (Campbell) - these being the authorities to which the judge referred at some length in his judgment. It is, I think, sufficient, if – no doubt somewhat crudely – I outline the arguments addressed to us and explain briefly why I think the judge was right to reject the appellants’ case under ECHR.

Mr. Singh and Mr. Cox argued firstly that the subject matter of the dispute clearly fell within the ambit of Article 1-1. For this proposition, they relied on Esfandiari, in which this court had been seized of an appeal concerning the denial of a funeral payment for a reason said to be indirectly racially discriminatory. This Court considered that the rule was not indirectly discriminatory, but in relation to whether the case fell within the ambit of ECHR Article 1-1, counsel pointed out that Carnwath LJ had said at paragraph 27 that it had long been accepted that state benefits under a contributory scheme were within ECHR Article 1 -1.

Mr. Singh and Mr. Cox also relied on the recent decision of the Grand Chamber of the ECtHR in Stec in which it was held that non-contributory benefits were to be treated in the same way – see paragraphs 54 and 55 of that judgment. They accordingly submitted that the effect of Stec was that Article 14 read with Article 1-1 precluded a benefit rule which caused unjustified discrimination on Article 14 grounds. They also submitted that the discrimination in respect of the social security provision at issue in the instant case was within the ambit of ECHR Article 8. They relied on Petrovic v Austria (2001) 33 EHRR 14 in which the ECtHR had held that a parental leave allowance was within the ambit of Article 8 simply because it was intended to promote family life and thus was a way for the state to demonstrate its respect for family life. That was so despite the fact that Mr Petrovic had been able to take his parental leave despite the denial of the allowance in question.

Counsel also relied on the decision of the House of Lords in Secretary of State v Work and Pensions v M [2006] UKHL 11, which had considered the ambit of Article 8 in the context of Article 14. They invited us to reject the dictum of Laws LJ in R (Carson) v Secretary of Sate for Work and Pension [2003] 3 All ER 577. Laws LJ had held that “the provision of jobseeker’s allowance and income support has not been made by the United Kingdom legislature and executive out of compliance with any actual or perceived positive obligation arising under article 8”. They submitted that JSA was intended to promote respect for private life. They argued that without it a civilised existence would be impossible for the poorest in our society. They invited us to follow the proposition advanced by Sedley LJ in Secretary of State for Work and Pensions v M [2004] EWCA Civ 1343, that housing benefit was within the scope of Article 8 because it was a discrete scheme with the particular purpose of keeping a roof over the head of the poor.

In relation to discrimination, Mr. Singh and Mr. Cox argued that Article 14 prohibited relevant indirect discrimination. They argued that the effects on the appellants, as compared to residents of other parts of the CTA were indeed ‘disproportionately prejudicial’. But for interim relief, they argued, the appellants would have been destitute and homeless for at least three months, while those arriving from Ireland were entitled to benefits straight away. This, they submitted was discrimination on a prohibited ground, namely national/ethnic origin. The respondents were unable to show that such discrimination was justified, in accordance with the principle of proportionality.

For the Secretary of State, Mr. Howell and Mr. Ward pointed out the ECHR did not, of itself, confer any right as such to the payment of any social security benefit. They argued that JSA and Homelessness Assistance did not fall within the ambit of Article 8, which did not require a public authority to provide accommodation and the means of support to those who were free to secure their own support for themselves. In any event, they submitted that the question was whether or not the habitual residence requirement in the instant case was intended to promote respect for family life or the home. They submitted it plainly did not. Whilst the status of Stec was doubtful, they submitted both the judge and indeed this court were bound by the decision in Campbell.

Mr. Howell and Mr. Ward also argued that even if Article 14 applied, it was not infringed. The reason for the difference in treatment under the habitual residence rule had nothing to do with the nationality or national origins of those affected, and for the reasons already advanced, the difference in treatment between British citizens resident in the CTA and those not so resident was plainly justified.

After a detailed consideration of the authorities, the judge concluded in relation to Article 1-1, that he was bound by the decision of this court in Campbell. In paragraphs 50 to 52 of his judgment, he said:-

In relation to ECHR Articles 8 and 14, the judge, after another detailed consideration of the authorities, and an extensive citation from the judgment of Sedley LJ in Langley v. Bradford MBC [2004] EWCA Civ 1343, [2005] 2 WLR 730 concluded in paragraph 60 of his judgment: -

If it is necessary for me to do so for the purposes of these appeals, I respectfully agree with the judge’s analysis. It seems to me, with great respect to Mr. Singh and Mr. Cox that the alleged mischief in the present case, the habitual residence rule, is not caught by ECHR Article 8, and even if discriminatory within ECHR Article 14 (which I do not think it is) is plainly justified for the reasons I have already given.

Insofar as it is appropriate, on the facts of the instant case, for this court to enter what I may call the “Stec” debate, my view is that the judge was right to hold that he was bound by this court’s decision in Campbell, and I agree with Mr. Howell’s submission that this court is in the same position.

In these circumstances there is no need for me to deal with the discrete point raised by Mr. Okoya, namely that HRA 1998 section 6(2) provides the local authorities concerned with a complete defence to the claim, save to say that I agree with the judge on it, and that the point made by Mr. Okoya is a good one.

For all these reasons, these appeals, in my judgment, fail and I would dismiss them.

I agree with the judgment of Wall LJ.  In particular, I agree with his conclusion that there was no discrimination for the reasons set out at paragraphs 66-76 of his judgment. Even if the justification advanced by the Secretary of State was subject to intense scrutiny required if the provisions of the Race Directive 2000/43/EC were applicable (see Elias v Secretary of State for Defence [2006] EWCA Civ1293), I consider that, on the facts of this case there would have been no discrimination. Furthermore, as Wall LJ points out at paragraph 100, the terms of the Race Directive and the Treaty establishing the European Community do not cover discrimination on the basis of nationality or residence.

However, Bennett J also held at paragraphs 36-41 of his judgment that the EU would not have competence to make a directive that could apply to British citizens who had been resident in Mauritius immediately prior to their arrival in the UK; their position did not fall within the Community legal order. Accordingly he held that the Race Directive could not be used as an aid to interpret s.41(2) of the Race Relations Act 1976 nor could it be said to displace or disapply s. 41(2).

It was common ground, as Wall LJ sets out at paragraph 90 of his judgment, that the extent of the competence of the Council to take action on discrimination depended upon the powers of the Community conferred by the Treaty and in particular Article 13 under which that the Council made the Race Directive. The Council could not legislate outside the sphere of Community competence: see the decision of this court in Gingi v Secretary of State for Work and Pensions [2001] EWCA Civ 1685. However, the appellants challenged the correctness of Bennett J's decision that the Treaty did not confer the necessary competence on the Community in relation to persons in the position of the appellants; it was contended that the Community had wide self standing powers to take action to prohibit generally discrimination of the kind identified in Article 13 within the Community. The powers were not confined to taking action in respect of discrimination in relation to matters where the Community otherwise had competence under the Treaty.

The question of the interpretation of the Treaty in relation to the competence of the Community with regard to discrimination is a question on which there is no authority directly in point. In view of the clear conclusions in relation to the other issues in relation to the Race Directive which I have summarised in paragraph 116, it is not necessary, in my view, to decide the issue in relation to the interpretation of the Treaty for the purposes of the present appeal. It follows that I do not wish to express any view on the decision reached by Bennett J on this specific issue.

Whilst sharing Thomas LJ’s reservations, I agree that these appeals should be dismissed for the reasons given by Wall LJ.