Conde, R (on the application of) v London Borough for Lambeth

MR JUSTICE COLLINS: The claimant is a Spanish national. She arrived in this country on 1st July of last year with her two small children who were then aged five and three. Her husband had treated her with violence and was being prosecuted for assaulting her but she was afraid that he would, as he had in the past, whilst awaiting trial and at liberty, attack her again. She decided accordingly to come to this country and to seek work here.

She had worked in hotels in Spain and in Switzerland. Indeed she had, it seems, lived in Switzerland for some three years between 2000 and 2003 and she speaks Spanish, French and Portuguese but not English. She had, she believed, arranged for somewhere to stay when she arrived in this country but that proved not to be the case. She apparently met a gentleman in a park and he very kindly agreed to accommodate her and her children. This was to be a short term arrangement, but unfortunately within a very short time it proved to be unsatisfactory and, accordingly, the arrangements broke down.

She applied to Lambeth Council, in whose area she was then living, under the homeless provisions of the Housing Act. Her claim was refused on the basis that she was not habitually resident. That refusal was on 6th August of last year. I am told that she is currently seeking a review of that decision but she has not pursued any claim against the refusal by the Council to exercise discretion to provide accommodation pending the carrying out of the review.

On 16th September last year she made representations via her solicitors to the Social Services Department of the Borough, seeking assistance under section 17 of the Children Act 1989. That provides, so far as material, under the sidenote "Provision of services to children in need, their families and others", as follows:

Those powers include provisional accommodation in order to protect a child, but that is not material for the purposes of this case because it only applies where a child is suffering, or likely to suffer, ill treatment at the hands of someone else living in the same premises. I only mention it because it was at one stage raised in the context of this claim.

Subsection (3) of section 17 provides:

It is common ground that it is open to a local authority exercising its section 17 powers to provide accommodation for the parent or parents of dependent children if that is with a view to safeguarding or promoting the welfare of the children.

The application made clear that the claimant was an EEA national and a job seeker. Further details were given in a letter of 1st October 2004. It was noted that by then her husband had been convicted and sentenced to a term of imprisonment on 14th September. Indeed, the claimant had returned for a couple of days in order to give evidence at that trial. But it seems that his sentence was not due to start immediately because of prison overcrowding in Spain. Apparently, accordingly to the information, there is a provision whereby the actual serving of the sentence can be deferred until there is room in the prison.

I have no information as to the length of the sentence or whether he is yet in prison. I gather too that there may be an appeal by the husband. It is said on her behalf that the children and mother should not be parted, and evidence was produced of the efforts that she was making in order to find work. I should say that she has now been here for over six months but still has been unable to find work. On 6th October the Council replied via its solicitors in these terms:

The assessment itself was in due course provided on 8th October, by which time these proceedings had been lodged. It mistakenly recorded that the claimant had been refused assistance under the Housing Act because it had been decided that she was intentionally homeless. But what was material was that she had been refused, not why, and that error has not been regarded as a material error for the purposes of this claim.

I should set out the material part of the assessment. It reads as follows:

I should interpose by saying that that was the claim that was made, namely for financial assistance, albeit in the course of the hearing it is recognised that the reality is that this was a claim for accommodation in the main, although no doubt some sort of financial assistance might have been in addition required. Going back to the assessment:

I have already dealt with that mistake. Going back to the assessment:

Pausing there, the reference to it having to be done for all families found to be intentionally homeless may be thought to be irrelevant, having regard to the mistake, but the same point of course is a valid point in relation to any decision under the Housing Act that for whatever reason no duty is owed to an individual applicant. So the point is, if good for intentionality, good for that as well. Going back to the assessment it concludes:

I should refer to Schedule 3 of the 2002 Act. So far as material in dealing with withholding and withdrawal of support, under the heading "Ineligibility for support", paragraph 1(1)(g) provides that:

It will be noted that powers that are directly for the benefit of children are not excluded, and indeed paragraph 2(1)(b) states that there is an exception to ineligibility under paragraph 1 in respect of support or assistance to a child. Paragraph 5 provides:

That, on the face of it, excludes all Community nationals. But it is subject to an exception in paragraph 3, which provides:

Accordingly, paragraph 5 must always be read in conjunction with paragraph 3(b) because if there are Community rights which mean that particular support or assistance should be given, then they will override the exclusion in paragraph 5. Essentially the exclusions apply to aliens or those who have refugee status abroad, and thus do not need support in this country, or failed asylum seekers, or those who are here unlawfully.

It is the claimant's case that she is, and was, a work seeker and as such she had a right to remain in the United Kingdom for a reasonable period in order to enable her to obtain employment. The refusal to provide her and her family with accommodation was an unlawful obstacle to the exercise of those rights, and the suggestion by the Council that she could and should return to Spain was also unlawful because it extinguished the right to be here in order to seek work. It is said also that it is discriminatory as between UK and other Community nationals and is disproportionate.

Mr Berry has been careful not to assert more than is necessary for the purposes of this claim. Although it sought a mandatory order to provide accommodation and support under section 17, he accepts that all he can achieve, if he succeeds, is a reconsideration based upon a proper account being taken of the claimant's Community rights. He recognises that it may now be that the Council could say that the claimant has had sufficient time to seek work and that she could not now therefore be considered to have genuine chances of being employed, and therefore she would have no right to remain as a work seeker. Further, it would be open to the Council to explore further the question of whether it would be possible for the children to be returned to Spain to be looked after, for example, by their grandmother if the claimant wanted to remain in this country in order to continue to seek employment.

There is a further matter which was raised in the course of the argument but upon which there is a dearth of evidence. As will be apparent when I consider some relevant cases decided in the European Court of Justice, it has been determined that a work seeker is prima facie entitled to jobseeker's allowance, provided that he is lawfully resident here and it is established that he has been here, genuinely seeking work, for a reasonable period. A requirement of habitual residence, which is what the regulations provide for, is not appropriate. I gather that the claimant has herself claimed jobseeker's allowance but I was not told when that application was made. It has apparently been refused. There is an appeal against that refusal but that appeal has not yet been heard. Prima facie, that refusal would seem to have been contrary to Community law, unless on the facts it was decided that she was not a genuine work seeker. That she was a genuine work seeker is accepted by the Council for the purposes of this claim, but that does not of course bind those responsible for making decisions on jobseeker's allowance. But it is, I think, clear that the primary source of support for a work seeker from another Member State will be, provided he establishes that he is a genuine work seeker, a jobseeker's allowance.

The Children Act is not concerned with housing families, although it can be a last resort in certain circumstances. Housing is achieved through the homeless provisions in the Housing Act. In R v London Borough of Barnet ex parte G [2004] 2 AC 208 the House of Lords considered the true construction of section 17. One of the conjoined appeals concerned Lambeth's policy to accommodate children if, and only if, it became necessary, but not their parents. At paragraphs 49 and 50 Lord Nicholls, who was one of the dissenting minority, gives a helpful explanation of what that policy amounted to. He said:

Although this is now some two years or so ago, there is no reason to believe that the pressures upon Lambeth have diminished in any way. Indeed, it is plain that they have not. The policy which Lord Nicholls there refers to quite clearly underlies to an extent the decision which was made in the assessment in this case and to which I have already referred.

The decision of the majority in Ex parte G was that section 17 sets out general duties intended to be for the benefit of children in need in the authority's area and the specific duties, which are dealt with thereafter in the Act, must be performed with the general duties in section 17 in mind. The effect, as Mr Berry, I think, recognised, is that although it is described as a duty in section 17, in reality it amounts to a power to exercise the relevant functions, the duties arising, as I say, subsequently if the material circumstances exist.

In paragraph 92 Lord Hope, who gave what I think amounted to the leading speech on behalf of the majority, said this:

That is of some importance because, as Mr Berry points out, we are here concerned not with permanent accommodation but only with temporary accommodation. He recognises, as he must, that a job seeker from another Community State is only entitled to remain here for such period as is reasonable to enable him or her to make the necessary efforts to seek employment. If it becomes apparent that employment is not likely to be obtained (and that will normally be after a period which has been by a rule of thumb regarded as six months) then the likelihood will be that the right to remain for that purpose can be considered to have ceased.

That is subject to consideration of an individual case and it may well be that someone who has been here for a period which exceeds six months can still be said to be a genuine job seeker if it is plain that there are real prospects that a job will be obtained within a relatively short period of time. But all this means that the provision of support under section 17 will be temporary only, and in this case that is accepted and therefore the principles referred to by Lord Hope in paragraph 92 are not directly applicable.

However, it is clear that even for temporary housing the Housing Act is the right vehicle and it would be strange if a provision which had nothing directly to do with housing were able to be used in order to get round a decision made under the primary legislation, namely the Housing Act, which was a proper decision under that Act and which in the circumstances denied the right to be accommodated by the authority in an individual case.

That was to a degree touched on by Lord Scott at paragraph 137 onwards. So far as material what he said was as follows:

Then finally, at 141 he said:

Those observations are in my judgment of some considerable importance when I come to consider one of the matters that is raised, namely whether there has indeed been discrimination against a non-UK national.

Mr Berry reminds me of the element of proportionality as set out by the European Court of Justice in Gebhard v Consiglio dell'Ordine degli Avvocati Procuratori di Milano [1995] ECR I-04165. That case concerned recognition of professional qualifications to enable a lawyer to provide services in another Member State. At paragraph 37 of the judgment the court said this:

Mr Berry submits that those principles are applicable to the exercise of public bodies of their powers because he has to recognise that we are not here dealing with a measure which necessarily has the particular effect which is in issue in this case.

Mr Berry relies particularly on a recent decision of the European Court of Justice, Collins v Secretary of State for Work and Pensions C-138/02 decided on 23rd March 2004. Mr Collins had dual Irish and United States nationality. On 31st May 1998 he entered the United Kingdom in order to find work in the social services sector, and on 8th June he claimed jobseeker's allowance. This was refused on the ground that he was not habitually in this country, that being a requirement to entitle anyone to that allowance. Three questions were referred to the court by the Social Security Commissioner, to whom an appeal was eventually brought. Those questions were as follows:

The court answered the questions: (1), no; (2), no; (3), yes, there were provisions which did require the payment of the jobseeker's allowance.

Before going to the reasons of the court I should refer to the relevant provisions both of the Treaty and of the material Regulations. The Treaty provisions that are material are, first, Article 3, which provides:

Then Article 12, which used to be Article 6 -- there seems to be a practice of renumbering the Articles which makes reference to earlier authorities sometimes rather difficult -- provides:

Then we come to Citizenship of the Union. Article 17 provides:

Article 18.1 provides, as amended by the Treaty of Nice:

Finally, Article 39 of the Treaty, under the heading "Free movement of persons, services and capital", chapter 1, headed "Workers" provides:

Regulation 1612/68 is the regulation which deals with freedom of movement for workers. The first preamble provides:

Preamble 5 provides:

I need not, for reasons that will become apparent, refer specifically to the Directive 68/360. There was an argument raised by Mr Collins that that entitled him to remain here for three months and, as a result, to the benefit in question. But the European Court decided that 68/360 applied only to those who came to this country with settled employment available to them and not to someone who was merely coming to seek employment.

Title I of Part I of Regulation 1612/68 deals with eligibility for employment. It provides by Article 1 that:

Article 5, it is to be noted, provides:

Then Title II deals with employment and equality of treatment, and it is only in Title II that there is reference to workers. Article 7 is perhaps the most important. It provides as follows:

I do not think I need read 4. Article 10 provides under Title III, in relation to workers' families:

In dealing with the questions, the court's reasoning is, as I have said, of some importance. So far as the first question is concerned, the court noted in paragraph 26 that:

Paragraph 30 stated:

I confess that I have some difficulty in following the reasoning, in particular of paragraph 32 and the last sentence of paragraph 33. However, it is not, I think, material for the purposes of this case because it is quite clear from Collins that a work seeker is not to be regarded as a worker and does not have the right to benefits which are provided by Article 7 of the regulation.

Question 2 I have already dealt with. Question 3 is of some considerable importance because it really is upon the court's reasoning in relation to question 3 that Mr Berry founds much of his argument. The court in paragraph 51 indicated that the third question basically asked whether there was a provision or principle of Community law on the basis of which a national of a Member State who was genuinely seeking employment in another Member State might claim there a jobseeker's allowance such as that provided for by the 1995 Act. In paragraph 57 the court said this:

So one would have thought that possibly Mr Collins' claim might not have succeeded in relation to question 3. But the court went on as follows:

Then there is reference to a Belgian case in which a minimum subsistence allowance payable to students was held to be payable because otherwise there would be discrimination on the grounds of nationality. In paragraph 63 the court went on:

Then in paragraph 67 the court said:

Now, I think it will be apparent from my rather lengthy citation of the reasons of the court that, on the face of it, that decision may be said to open a door which is very much wider than the situation was hitherto believed to be. Mr Berry does not seek to submit that merely by virtue of citizenship any national of another Member State can come here and immediately seek social security benefits which are available to nationals of this country. Certainly he does not argue that the Collins case is as wide as that. But it does seem that the distinction drawn between a worker and a person seeking work has to an extent become considerably blurred and certainly, so far as the benefit which was in issue in Collins' case is concerned, albeit he was not a worker, he was held to be entitled to it. However, the court was concerned, as I see it, to make it plain that the benefit in question was one which was to be linked to the facilitating of access to employment and by its very name it is obvious that a jobseeker's allowance was a benefit which was intended to have that effect.

The argument raised by Mr Holbrook is that the provision of support under the Children Act cannot on any view be said to have that purpose, or indeed to be directly relevant to the obtaining of employment, and he submitted that Collins was indeed limited to the benefits which were intended to facilitate access to employment. Accordingly, he submitted that Article 39 was not applicable.

This led to a supplementary skeleton from Mr Berry which raised the issue of a possible reference to the European Court on the basis that Collins could be regarded as adopting a much wider approach based on Article 12. He argued by reference to Article 7(2) of 1612/68 that a very wide construction was given to the expression "social and tax advantages". They extended, effectively, to all advantages given, whether or not they were provided to nationals because they were workers. See, for example, Even v ONPTS C-207/78, paragraph 22. See also Commission v Italy C-63/86 paragraph 16. What was there said by the court was this:

That directly concerns self-employed persons but there is no reason to distinguish it in any way from provisions applicable to workers.

Mr Berry relies particularly on observations of Advocate General Geelhoed in Bidar v London Borough of Ealing C-209/03, an opinion delivered on 11th November 2004. That case concerned financial assistance to students for purposes of maintenance. It is, I think, necessary for me to cite from it. Of course I recognise and emphasise that it is an opinion of the Advocate General and that there is no guarantee that the court will necessarily adopt it. Nonetheless it clearly has considerable weight and it is something to which I should pay careful regard. In paragraph 28 what he said was this:

Finally, in paragraph 33 he said:

Emphasis is there laid on the purpose of the benefit. Residence here is, and can only be, regarded as lawful residence under the residence provisions if it is for the purpose of finding work. The provisions of the Children Act have nothing directly to do with that and the social advantages referred to in Article 7(2) are nothing to the point since the claimant is not a worker. It is easy to see that the jobseeker's allowance, as its name suggests, is for the purpose of assisting those who seek work, but there is no reason, in my view, to extend the indirect benefits in the way suggested for work seekers when they are explicitly recognised for workers but not for work seekers. Nor can citizenship as such, if the residence directives are to have any meaning or effect, justify opening up these benefits even if, in an individual case, a person runs into difficulty. This is particularly so where there are benefits available which can and should be accessed and in respect of which measures can be taken to ensure proper payment. The claimant here should clearly have applied for jobseeker's allowance at as early a stage as possible to provide her with the necessary means to enable her to remain as a jobseeker.

Accordingly, as it seems to me, the Council was correct to take the view that the provision of the support that was being requested was not something to which the claimant was in any way entitled as a job seeker, and thus it was not incumbent upon them to give her any special consideration as a national of another European Union state seeking work here.

Mr Holbrook further submits that even if in principle the European Union law was applicable, there was no discrimination. He drew an analogy with a UK citizen coming down to London from the north of England in order to seek work. It was his submission that if that person brought his or her dependent children and found him or herself unable to find accommodation, the local authority, if application were made, would be perfectly entitled to say, "No, we do not propose to support you. We do not think it is reasonably necessary to do so in the interests of the children. You can go back up to the north of England", if, of course, it was reasonable and there would be no material detriment to the children if that happened and if the children could properly be looked after were they all to return.

After all, one must remember that the local authority's obligations are to those resident in its area. This local authority, as most, has limited resources and is entitled, because in my view it is clearly proportionate, to deny support to newcomers if it is reasonable to require that they return to wherever it was that they came from in the United Kingdom.

It is said that to think in terms of return to Spain is to deny the right of free movement. That would mean that the Community national would be in a better position than the UK national. Mr Berry submits that Community rights are the same for all and that UK nationals would be in the same position as the claimant if in Spain and would have similar rights, whatever limitations existed there for nationals. Accordingly, it is not a question of being in a better position. It is a question of looking at the relevant rights as Community nationals rather than as United Kingdom nationals. It seems to me that it is no part of the policy of the Community that advantages should be provided to EU nationals in the local labour market. The policy is to ensure that they are not in any way disadvantaged. Accordingly, as it seems to me, there is no discrimination in suggesting a return to Spain and it would, if there was no question of the children being able to go on their own, not be in any way unlawful. There is no distinction in principle between that and a requirement for a UK national to go back to another part of the United Kingdom if the individual local authority in London decided that it was not appropriate or reasonable to require that support be given there.

Accordingly, as it seems to me, the Council's approach is lawful, both in following the endorsement of its general policy by the House of Lords in G and in regarding the possibility of return to Spain as a proper answer to this claim.

The fact that a person is an EU national does not automatically apply paragraph 5 of Schedule 3 to the 2002 Act. The exception in 3(b) should always be noted. For a work seeker, as opposed to a worker, in housing and Children Act cases it is likely that there will be no material right which has to be taken into account and which overrides the exclusion in paragraph 5. But for a worker, and specifically for a worker who for whatever reason loses his job and thus needs to fall back on some sort of benefit, the situation is different. Indeed, Article 7(2) of 1612/68 explicitly refers to that possible situation.

Accordingly, as it seems to me, it is always necessary for local authorities faced with claims by EU nationals to make sure that there are indeed no rights which might mean that Article 5 is disapplied. But in the circumstances, and for the reasons that I have given, this claim must be dismissed.

Perhaps I should have added that in the circumstances and for the reasons that I have given, it seems to me that there is no need to refer the matter to the court. As I see it, the position as regards the situation here is indeed clear and I do not regard the observations of the Advocate General to which I have referred in Bidar, to the extent that they build on the decision in Collins, as indicating that there is any doubt about the proper result in this particular case.

MR HOLBROOK: My Lord, I ask for costs. I also ask that the injunction order that was made on 15th October be discharged.

MR JUSTICE COLLINS: Yes. So far as costs are concerned, I assume you are legally aided, are you not?

MR BERRY: My Lord, we are.

MR JUSTICE COLLINS: Subject to anything Mr Berry may say, you are, I suspect, entitled to an order in principle, subject to the usual -- whatever it is called nowadays.

MR BERRY: Section 11 order. I am not sure of the exact --

MR JUSTICE COLLINS: The lottery order or whatever you like to call it.

MR BERRY: Football pools.

MR JUSTICE COLLINS: Certainly I think you would be entitled to that. So far as the injunction is concerned, yes, but I think it is reasonable that you should give her a little time to sort herself out, and I am sure that the Council would not want to, as it were, put her out on the street immediately.

MR HOLBROOK: Indeed. That matter has already been discussed with my learned friend and the local authority are proposing to give her a period of some days before they take the accommodation away from her.

MR JUSTICE COLLINS: Indeed. What were you thinking of?

MR HOLBROOK: Seven days.

MR JUSTICE COLLINS: Seven days. I think that is certainly reasonable. Yes. Again, subject to anything Mr Berry may wish to say about it.

MR BERRY: My Lord, I do not think it is an order that you can make in the circumstances.

MR JUSTICE COLLINS: I do not think I can. I can merely express the view that it ought to be, and I am glad to hear that they are prepared to do so.

MR BERRY: My Lord, I do have an application to make for permission to appeal in the light of the reasoning given in your Lordship's judgment. My Lord, it is my understanding from your Lordship's judgment that it really was the paragraphs in Bidar interpreting Collins and considering that moved your Lordship in the direction to consider that Children Act services, because they are not connected to access to employment, are therefore not something contemplated --

MR JUSTICE COLLINS: That, and also I have taken the view that there is no discrimination.

MR BERRY: My Lord, yes. But even on the proportionality argument your Lordship focused on the reasoning of the Advocate General.

MR JUSTICE COLLINS: Yes, indeed.

MR BERRY: Indeed, at paragraph 32, in terms of it was not the intention of Member States to open up the full range of their social assistance. My Lord, the reason we ask for permission in the light of that reasoning is that that summary was obviously in the context of cases such as Grzelczyk which were concerning a student who was seeking income support. So it was not a student seeking a student loan that was the subject, where a student loan might be connected to the nature of the right to reside. Also it is obviously a requirement of student status that you are self-sufficient on entry.

So, in terms of the full range there, what was being considered was if income support was to be available to all students, not should it be available to -- it was not a question of the type of benefit being connected to the type of status. On that basis, in our submission, there was not (inaudible) the function of Children Act services and the --

MR JUSTICE COLLINS: Yes, I see the arguments.

MR BERRY: Then in paragraph 32, which your Lordship quoted from, the Advocate General requested that:

My Lord, in the light of that -- and it is a developing area of the law -- we would say that it is arguable to the standard of having real prospects of success at the Court of Appeal, and we would take a different view because of the differences in our submissions on that part of Bidar and your Lordship's judgment. We seek permission to appeal on that basis.

MR JUSTICE COLLINS: But even if you were to succeed on that, you would fall down, would you not, on lack of discrimination? Because even assuming that it was appropriate to think in terms of providing the particular support, it could be refused, and properly refused I have decided, on the basis that, for example, a UK national could be required to go back to wherever he was before he came down to London to seek employment because he thought the prospects of employment in London were better than wherever it may have been.

Now, the principle of that is precisely the same, is it not, as the principle of someone coming from Spain or wherever in order to seek employment here, believing that the prospects here were better, for whatever reason, than in Spain. So that although in one essential you can say that it inhibits or obstructs, or whatever word you like to use, the right, it is no different in principle, is it, between the national and the non-national? Therefore it would not fall foul of Article 12, or indeed 39.

MR BERRY: My Lord, perhaps on the discrimination issue, in light of your Lordship's judgment, it is difficult for us to argue that, but that is not an end to the question of the Community law issues there, because the concept of proportionality is wider than and looks at the restriction to the exercise of the fundamental freedom, and that is a different type of analysis on the discrimination issue.

MR JUSTICE COLLINS: Not very different, is it? I mean, if there is no discrimination it is going to be much more difficult to establish a lack of proportionality, is it not?

MR BERRY: In a situation where a Community law national may have different rights from the UK national because of the effect of Community law, it may not be a question of discrimination but a question of giving furtherance to them; say, in the examples we discussed yesterday, like a same-sex partner to join an EC national in Reed v Netherlands had the effect of circumventing UK immigration for Community law nationals, so that they do not have to comply with the entry clearance requirements and the immigration laws.

That is an example where there is not discrimination because Community law rights are not equal between the UK nationals and EC nationals, but there is a restriction of that question of proportionality. So there are factual differences because of the civil status. Your Lordship's judgment does place reliance on that paragraph in Bidar and it is, in my submission, arguable, and "real prospect of success", of course, is the standard. It has to be arguable, there have to be real prospects on the argument, but they do not have to be so --

MR JUSTICE COLLINS: No, of course I accept the test. You are quite right.

MR BERRY: Because of that question of proportionality, and because of the fact that the Advocate General was considering welfare benefits which were not connected to the inherent nature of the EC right to reside such as the student status in Grzelczyk allowing an attainment to income support. And because of the doubt, in my submission, of the concept of what the "full range" of social entitlement means, because, in my submission, the Advocate General was referring to the fact that you are not entitled to income support when you apply as a student to come here for a residence permit. You must be self-sufficient upon entry. You must not be an unreasonable burden. That is a different way of looking at "full range". It says that you may be entitled to that benefit, but not in all situations. For those three reasons, my Lord, we seek permission to appeal.

MR JUSTICE COLLINS: Can I take into account properly, Mr Berry, at this stage the fact that your client has now been here for the six months without obtaining any employment and that the time is getting pretty close when this will become really, frankly, academic because there can be no basis upon which she could properly argue that she had real prospects of obtaining employment. I appreciate that you have material which I have not seen that she is still trying. But that is that she is still trying, not that there is anything which looks as if it is coming her way in the immediate future.

MR BERRY: My Lord, it is this judicial review of the decision that was made. A discretion to grant relief is different from the --

MR JUSTICE COLLINS: I follow, but why should I, at public expense, approve a trip to the Court of Appeal when it may well be that, as a matter of fact, there is at the end of the day no prospect of getting the relief which is sought, and that the effect will be simply to enable her to stay a bit longer at Lambeth's expense?

MR BERRY: On the first limb of the test of permission to appeal, it is of importance to my client. The issues are -- I understand your Lordship's point, but if she continues genuinely seeking --

MR JUSTICE COLLINS: She may say she is genuinely seeking. I have no doubt that she is genuinely seeking, but that is not --

MR BERRY: We need to establish on the evidence that she is genuinely seeking --

MR JUSTICE COLLINS: That is not the test at this stage. She has been here for long enough. There is the added need for her to show that there is a real prospect that she is going to get employment within whatever a reasonable time by now is thought to be. That is the test.

MR BERRY: My Lord, there is of course the second limb to the test for permission to appeal. This is a case that involves a complex point of Community law in a developing area. It also has the potential to affect a wide class of people, because those that do migrate --

MR JUSTICE COLLINS: That may be, but you have to choose the right case on the facts.

MR BERRY: My Lord, perhaps. That must be right. In an appeal for judicial review, if the point is of wider and public importance then many people will be in the same situation as the claimant. There will be people who come here with jobs already, but it is in the nature of economic migration that not all people, and certainly a substantial part of the population of those that cross borders, will have employment.

We have canvassed the fact that in Children Act situations there may be very limited application for work seekers, if our submissions are right in Community law, if it is engaged. We have canvassed the fact that there may be factual situations where you could rely on family and homestay or jobseeker's allowance, for example. But it is still a point of importance because the question of social support is a developing one and it does affect a wide class of people in so far as Community law is engaged. At this level it may be appropriate -- it is appropriate, in my submission -- for the Court of Appeal to consider that matter. It is in a sense for the first time and that is a new point. Your Lordship has decided not to refer where you have a discretion to refer, but that does not mean that the point --

MR JUSTICE COLLINS: No, the Court of Appeal may decide differently. I appreciate that.

MR BERRY: My Lord, you have our arguments. We seek permission to appeal on those grounds.

MR HOLBROOK: I do oppose permission to appeal, and I do so for three reasons. Firstly, I say that your Lordship's judgment is clear. Secondly, I say that she has been in this country now for about six months, a bit longer. There must be serious questions about whether or not she can still claim to be a jobseeker. Thirdly, if it is appropriate for the Court of Appeal to consider this matter then the Court of Appeal can say so.

MR JUSTICE COLLINS: Yes. Anything you want to add, Mr Berry?

MR BERRY: My Lord, not on the question of appeal.

MR JUSTICE COLLINS: I think for the reasons I have indicated: firstly, that I take the view that the discrimination point is not one which would entitle you to leave -- I take your point that there is an argument that the other is perhaps a bit wider, so far as proportionality is concerned, than discrimination, but I think you are in great difficulty on the discrimination point on its own -- and secondly, on the facts of this case. The fact that your client has been here now for six months puts in some considerable doubt whether she can in truth still be regarded as a jobseeker, whether or not she is still genuinely seeking employment, because there does not appear to be any real prospect of getting employment within a reasonable time. If you wish to pursue the matter you will have to go to the Court of Appeal.

MR BERRY: My Lord, I am grateful. I believe I forgot to ask for detailed assessment.

MR JUSTICE COLLINS: Yes, of course you may have that.

MR BERRY: My Lord, may we have expedition of the transcript.

MR JUSTICE COLLINS: Yes. I have to fill in a form for the Court of Appeal which explains why I have refused leave. I shall say: see transcript. (i) Discrimination point is well-nigh fatal and would not justify leave to appeal; (ii) the claimant has now been seeking work here for over six months so it is questionable whether she now qualifies as a work seeker. All right?

MR BERRY: I am grateful, my Lord.