Konodyba v Royal Borough of Kensington and Chelsea

This morning the court assembled to hear the appeal of Dr Konodyba in her litigation with the Royal Borough of Kensington and Chelsea, following decisions of the Royal Borough to the effect that Dr Konodyba was not entitled to housing assistance, in her claim arising out of her homelessness, on the basis that she was subject to immigration control. That led to a hearing before HHJ Behar in the Wandsworth County Court and to Judge Behar’s judgment, dated 9 February 2009, in which Dr Konodyba’s then basis of claim to explain why she was not subject to immigration control was considered but rejected by the judge.

The essence of her claim at that time was that, although her status as a “worker” was subject to the derogation provisions permitted to this country, (ultimately from the provisions of Article 39 of the EC Treaty, inasmuch as Dr Konodyba is from Poland and is subject to the transitional provisions during the accession period allowed to nations such as this country, following the accession of Poland and other new states, to the European Community, a group known as the “A8 states”), Dr Konodyba nevertheless submitted that, as the mother of a child who had been introduced into school in this country while she was temporarily working here, albeit not for the 12 months required under the United Kingdom’s transitional provisions, she was entitled to reside here as the primary carer of that child under what is known as the “Bambaust Doctrine”: see Bambaust & R  vSSHD (Case C-413/99) [2002] ECR I-7091 and Article 12 of Regulation No. 1612/68 (“the Regulation”.)

That was the issue, albeit decided against Dr Konodyba, for which I gave leave to appeal on paper by my order of 21 May 2009. I there said this:

“Although this is treated as a second appeal, it raises an important point on the interrelationship of Community and domestic legislation, and depends on the question of an implied derogation from a Community directive. HH Judge Behar, in his excellent judgment, described it as a “difficult area of the law”, and in another case HH Judge Knight QC came to a different view. I would give permission to appeal on the basis that it raises an important point of law and because there is a reasonable prospect of success for the reasons addressed in the applicant’s skeleton. Because this question must be likely to arise repeatedly, I consider that an element of expedition is suggested.”

The listing office has listed this appeal with the suggested expedition, and since the time I gave permission to appeal, Dr Konodyba as appellant was assisted by the legal team then representing her and, as it appears, new counsel as indicated by a supplementary skeleton argument dated 16 June 2009. In effect, the point on which Dr Konodyba had been given permission to appeal is probably best expressed in that supplementary skeleton argument.

It appears today in a communication to the court which the court received shortly before it convened this morning that Dr Konodyba does not wish to argue the point upon which she has been given permission to appeal. She has made it clear, both in that written communication to the court and again in her oral submissions to us this afternoon (because we adjourned the court this morning in order to give Dr Konodyba the opportunity to address us, since she had not been present in court this morning), that she has disinstructed her previous solicitors and counsel and has done so on the express basis that they were going to argue the point for which permission had been given and to make submissions to the court which it is clear Dr Konodyba now repudiates. She has described those submissions as not only having been advanced against her will and without her permission but as being entirely irrelevant. She has confirmed that this afternoon to us in person. The Bambaust argument, based on Article 12 of the 1968 Regulation is, she says, irrelevant. The case of LB Harrow v Nimco Ibrahim & SSHD [2008] EWCA Civ 386, which this court has referred to the European Court of Justice, is also irrelevant. Her previous lawyers’ attempt to join her case to the case, or to the rationale of the case, in Ibrahim was misconceived. That is her present clear position.

In place of those arguments now rejected, Dr Konodyba now makes it clear that she wishes to deploy a new and alternative case based not upon the 1968 Regulation, Article 12 and Bambaust, but on the 2004 Directive relating to rights of residency of European community citizens. For these purposes, she has deployed a factual basis in her communication to the court, albeit she says that that particular factual basis is not necessary to her new ground, to the effect that following the end of her employment in a hotel she became self-employed. At any rate she relies upon a separate status under the 2004 Directive.

As for her allegation of self-employed status, it is one that has been made in the past to the Royal Borough and one with which the Royal Borough, in its decision letters dated 18 March 2008 and 22 August 2008, have expressed themselves not to have been satisfied about. Dr Konodyba asks the court to adjourn this appeal to enable her to put her case to the court in the new way in which she wishes to put it. That is, I emphasise, a way for which she has not been given permission to appeal and which appears to be based on a different factual basis.

I say nothing about the merits or otherwise of any new application to the Royal Borough based upon Dr Konodyba’s new way of interpreting her case and status. She submits, and has put certain material before us in support of her submission, that her new way of putting the case has the support of an advice bureau which is operated by the European Commission in Brussels. The question of the validity of that advice is not before us.

We are concerned with the litigation which has derived from the Royal Borough’s decision letters both in first instance and on review, and then from the judgment of Judge Behar. We are concerned with the appeal for which Dr Konodyba has been given permission but which she does not wish to pursue. Dr Konodyba says, correctly, that she has a fundamental right to a fair trial. She asks this court to refer her new case to the European Court of Justice. The position is that, on the arguments and facts which have previously been common ground, Dr Konodyba has had a fair trial of the point which she wished, or appeared at that time to wish, to submit to the court. Now she wishes to divert that litigation into an entirely new channel on the basis of a factual case which is no longer common ground. It would be the very absence of fair procedure, on what is effectively a second appeal, and in any event, for this court to continue with an attempt to divert this appeal into entirely new channels. That would be the absence of fair procedure between the parties to this litigation.

In my judgment Dr Konodyba’s request for an adjournment should be refused, because to adjourn an appeal for which all the parties had prepared for today, even if Dr Konodyba in the background was thinking in other directions, would be the absence of fairness. The previously litigated point before the court is no longer pursued. This appeal, as presently constituted, has been effectively abandoned by Dr Konodyba both in writing and as now confirmed in her oral submissions to us in person. There is no realistic prospect that this appeal could proceed following adjournment by reference to a new factual basis and a new legal basis. As I have said, if there is any validity in Dr Konodyba’s new point, it is one which it may be (but I am not to be thought of as encouraging her) she can put anew to the Royal Borough with whatever consequences might ensue from that.

However, it is clear to me that the present appeal has been abandoned and therefore the order of this court which I would propose to my Lords is that this appeal is dismissed. In the circumstances there is nothing which this court could possibly refer to the European Court of Justice.

I entirely agree. I simply wish to add, if only by way of emphasis, that in my view the refusal of the adjournment and the dismissal of the appeal in no way breach Dr Konodyba’s Article 6 rights. As my Lord correctly points out, everyone has those rights; they operate both ways. Every court is entitled to pursue its proper procedure. Dr Konodyba has had ample opportunity, if she so wished, to advance the point she now wishes to advance. She chose, up until today, to advance an entirely different case, and it is that case which the court has jurisdiction to adjudicate upon and which it has convened to decide. In my judgment, therefore, to change horses at this stage is wholly impermissible and, as I say, in my judgment there is no breach of Dr Konodyba’s Article 6 rights. I therefore entirely agree with the course my Lord proposes.

I also agree. As I understand Dr Konodyba’s argument, she now wishes to argue that she has a right of residence in the United Kingdom based upon Article 7 of Directive 38 of 2004. Article 7 provides under the heading “Right of Residence for more than three Months” that:

“3.

For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed

person shall retain the status of worker or self-employed person in the following circumstances:

(a)

he/she is temporarily unable to work as the result of an illness or accident”

That argument was not the argument put forward to the Royal Borough upon which it based its original decision and made its original findings of fact in the decision letter dated 18 March 2008. Nor was it an argument that was put before the review officer, and so is not referred to in that decision letter dated 22 August 2008. Nor was that the argument that was put forward before HHJ Behar when the appeal from the review decision was dismissed. Nor was that argument put before this court when my Lord, Rix LJ, considered the application for permission to appeal and gave it on a totally different basis.

Accordingly, in my view that argument cannot possibly be the subject of this present appeal, whether we were to adjourn this matter now, or not. For the same reason that matter cannot possibly be referred to the ECJ. Accordingly, I agree that this appeal must be dismissed.