Case No: B2/2007/2608
Neutral Citation Number: [2008] EWCA Civ 1074
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE 
(HIS HONOUR JUDGE RYLAND)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 8th May 2008

Before:

LORD JUSTICE PILL
LADY JUSTICE ARDEN DBE
and
LORD JUSTICE SCOTT BAKER
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Between:

	EHIABOR
	Appellant	
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ROYAL BOROUGH OF KENSINGTON & CHELSEA	
Respondent	

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Mr J Luba QC and Mr A Berry (instructed by Messrs Oliver Fisher) appeared on behalf of the Appellant.
Mr K Rutledge (instructed by Royal Borough of Kensington & Chelsea) appeared on behalf of the Respondent.
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Judgment
Lord Justice Pill:

1.	This is an appeal from the judgment of HHJ Ryland sitting in the Central London Civil Justice Centre on 26 October 2007.  The judge dismissed an appeal by Ms Edith Ehiabor (“the appellant”) against a review decision of the Royal Borough of Kensington and Chelsea (“the council”) made under section 202 of the Housing Act 1996 (“the 1996 Act”).   It was submitted to the judge that the reviewing officer had erred in law in holding that the appellant was not in priory need for housing.  That issue depends on whether the appellant’s nephew, Samuel, is subject to immigration control.  Permission to appeal has been granted on a consideration of the papers as raising a point of principle of sufficient importance to justify a second appeal.  

2.	On 1 September 2006 the appellant, a citizen of Nigeria, applied to the council for assistance as homeless.  She had been granted indefinite leave to remain in the United Kingdom on 21 February 2003.  She is eligible for housing assistance from the council but does not, under the 1996 Act, have a priority need in her own right.  Her adult sister, Didi Ehiabor, was included on the application form as a member of her household.  Didi has overstayed her leave to remain in the United Kingdom and is subject to a deportation order.  Didi has a son, Samuel, born in the United Kingdom on 2 September 2003.  The identity of his father is unknown to the council.  It is not suggested that Samuel is a British citizen.  He does not have a right of abode in the United Kingdom.

3.	The reviewing officer accepted that the appellant’s sister and nephew form part of her household but decided that neither her sister nor her nephew could confer priority need as eligible persons under section 185(4) of the 1996 Act.  The council was prepared to assume for the purposes of the decision that the appellant had not become homeless intentionally (section 191) and that her sister and nephew are dependents (section 189(1)(b).  It was held that Samuel was a person subject to immigration control and was excluded from consideration following the case of R (Morris) v Westminster City Council  [2005] EWCA Civ 1184.  In that case section 185(4) was found to be incompatible with the European Convention on Human Rights.  But it is not suggested that such finding has any bearing on the current appeal.  The case turns on whether the appellant has a priority need for housing for the purposes of part VII of the 1996 Act by virtue of Samuel, a dependent child, being a member of her household.  

4.	Section 185 provides:

“Persons from abroad not eligible for housing assistance

(1) A person is not eligible for assistance under this Part if he is a person from abroad who is ineligible for housing assistance. 
(2) A person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he is of a class prescribed by regulations made by the Secretary of State. 
(2A) No person who is excluded from entitlement to housing benefit by section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) shall be included in any class prescribed under subsection (2). 
(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. 
(4) A person from abroad who is not eligible for housing assistance shall be disregarded in determining for the purposes of this Part whether another person— 
(a) is homeless or threatened with homelessness, or
(b) has a priority need for accommodation.”

5.	The appellant was seeking to rely on Samuel’s membership of her household to establish priority need.  The council contend that Samuel was not eligible for housing assistance.  It follows from section 185(2) and (4) that a person’s immigration status may be a bar to assistance.  A person from abroad who is subject to immigration control is ineligible for assistance unless he falls within a prescribed class, and a person who is eligible for assistance does not have a priority need for accommodation on account of a dependent child residing with her if that child is ineligible.  It is not submitted that Samuel comes within a prescribed class within the meaning of section 185(2).  

6.	It was established in Morris, and not challenged in this appeal, that a child born overseas who is a person subject to immigration control and who lacks leave to enter or remain cannot confer priority need.  Such a child is excluded from eligibility for assistance by section 185(4).  The issue in this case is whether a child born in the United Kingdom, but lacking leave to remain, can confer priority need for homelessness assistance.  On behalf of the appellant it is submitted that such a child is not excluded from consideration under the eligibility provisions of the section, because he is not subject to immigration control within the meaning of section 185(2).

7.	It is accepted on behalf of the appellant that Samuel is “a person from abroad” within the meaning of section 185(1) and (4) of the 1996 Act.  If Samuel “requires” leave to remain under the Immigration Act 1971 (“the 1971 Act”), he is, for the purposes of section 13(2) of the Asylum and Immigration Act 1996, and so section 185 of the 1996 Act, a person “subject to immigration control”.  Section 13(2) defines that person as “a person who under the 1971 Act requires leave to enter or remain in the United Kingdom (whether or not such leave has been granted)”.  The case therefore turns on whether Samuel both requires leave to remain under the 1971 Act.  Having regard to the concession made as to Samuel being a person from abroad, I do not intend to explore the scope of that legal term within the meaning of the section.  

8.	On the face of it, section 185 is, as Mr Luba QC for the appellant puts it, oblique in its requirements.  There is no obvious link between sub‑section (1) and sub‑section (2).  However, it is accepted that section 185 of the 1996 Act operates to exclude from eligibility persons who are (a) from abroad and (b) ineligible for assistance by reason of being subject to immigration control, unless re‑included by regulations made under section 185(2).  It is submitted that Samuel is not subject to immigration control because he is not a person who requires leave to remain.  He is at liberty to apply for leave to remain in the United Kingdom but he is not obliged to do so and cannot be said to “require leave to remain”.  Further, it is submitted, an application for leave would not make him subject to immigration control.

9.	It is necessary to refer to the 1971 Act.  Section 1 in part 1 is headed General Principles and provides:

“(1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person. 

(2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).”

10.	Under the heading “General Provisions for Regulation Control”, section 3 provides, insofar as is material:

“(1) Except as otherwise provided by or under this Act, where a person is not a British citizen — 

(a)  he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;

(b)  he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period,

(c)  if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions…”

11.	On behalf of the appellant, Mr Luba submits that Samuel, born and resident in the United Kingdom though not a British citizen, is not subject to immigration control.  Samuel would be subject to immigration control if he left the United Kingdom and sought to re‑enter.  But while he is here and can remain here he does not require leave to remain.  In construing sections 1 and 3 of the 1971 Act, Mr Luba relies on the state of the law when it was enacted.  In 1971 birth in the United Kingdom conferred a right of abode and British citizenship.  That remained the position until the relevant section of the British Nationality Act 1948 was repealed in the British Nationality Act 1981 (“the 1981 Act”) section 52(8) and schedule 9.  Thus sections 1 and 3 must be read on the basis that at that stage there was no need to make provision for persons such as Samuel born in the United Kingdom -- no reason, that is, for Immigration Act purposes.  Mr Luba accepts that the expressions ‘stay in’ and ‘entry into’ are distinguished in section 1(2).  That, he submits, is not surprising because no reference to persons who were here from birth was necessary.  That being so, he submits, the word ‘stay’ must be construed as meaning ‘stay after entry’.  Similarly the word ‘remain’ in section 1(2) must be read as meaning ‘remain after entry’.  It would have been expected, submits Mr Luba, that, if persons born in the United Kingdom were to be placed within section 1(2), an amendment to the 1971 Act would have been made to provide for them.

12.	Thus, it is submitted, Samuel does not come within that category of persons subject to regulation and control within the meaning of section 11(2) of the 1971 Act.  Provided he has escaped such regulation and control, Samuel need not apply for leave to remain and is not subject to immigration control.  Mr Luba refers to what he describes as indicia which may throw light on the construction of section 1(2).  He refers, as does Mr Rutledge for the council, to the Immigration Rules, particularly Rule 304.  Both parties seek to gain support from the wording of that Rule.  A question has also been raised on its vires but submissions have not been based on that and I do not propose to consider it further.  The judge took the view that the Rules were consistent with the statute and I agree.  I do not find them in this case an aid to statutory construction, nor can they properly be one.  

13.	Mr Luba refers to section 10 of the Immigration and Asylum Act 1999, which makes provision for “removal of certain persons unlawfully in the United Kingdom”.  He accepts that under sub‑section (1)(c) directions may be given in relation to Samuel for his removal as a family member.  But Mr Luba drew our attention to section 10(1)(a) which provides for removal from the United Kingdom if: 

“having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave.”

Samuel, it is submitted, is not covered by that provision as a person born here.  

14.	Mr Luba refers to section 1(4) of the 1981 Act:

“A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) or (2) shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person’s life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90.”

15.	Mr Luba submits that a marriage between immigration requirements and nationality requirements is appropriate.  There is no suggestion in section 1(4), which it is conceded would or will at an appropriate time apply to Samuel, that any formality such as leave to enter is required to take advantage of the sub‑section.  

16.	Both parties seek to rely on the decision of this court in LB Barnet v Abdi & Ismael (Secretary of State Intervening) [2006] 1 WLR 2771.  The claimants in that case were Dutch citizens living with their families and young children on income support within the area of a local authority to which they applied for housing assistance.  They had entered the United Kingdom by virtue of regulation 12 of the Immigration EEA Regulations 2000 which permitted them to enter with a valid passport or identity card.  It was contended by the local authority, supported by the Secretary of State, that they were not subject to immigration control within the meaning of the Act.  They claim that, by virtue of regulations enacted under section 185(2) of the 1996 Act, they did come within a category which enabled them to obtain assistance under the Act.  

17.	Buxton LJ, with whom Lloyd LJ and Richards LJ agreed, gave the leading judgment.  The issue arose whether the applicants were legally obliged to make an application for leave to remain in order to remain legally in the United Kingdom.  Their right to remain depended on their retaining a qualifying status within the meaning of the regulations and they had lost that status at the material time.  The court held that they required leave to remain and were subject to immigration control within the meaning of section 13(2) of the 1996 Act, by express reference to section 1(2) of the 1971 Act.  Notwithstanding that finding, Mr Luba relies on the decision and in particular on the statement of Buxton LJ at paragraph 13.  Buxton LJ considered the consequences which would follow from a finding that section 13(2) of the 1996 Act would not apply:

“The obvious construction of section 13(2) in practical as well as in verbal terms is therefore what its words say: that everyone is subject to immigration control who cannot lawfully remain in the United Kingdom without leave to do so.”

18.	Mr Luba comments that, applying that approach, the respondent’s submission in the present case involves a finding that Samuel is in this country unlawfully and that cannot be a proper reading of section 1(2).  For the respondent, Mr Rutledge submits that the classification as between sub‑sections (1) and (2) of section 1 of the 1971 Act does not depend on where the person was born.   It deals separately with entry in the United Kingdom as against staying or remaining.   Unless a person comes within sub‑section (1), he is subject to immigration control, even though while he remains here he is not obliged to apply for leave to remain, and need do so only if he leaves and seeks to re‑enter.  Mr Rutledge relies on the statement of Buxton LJ at paragraph 4, when describing the effect of the legislation:

“By section 1(2) of the [1971] Act, other persons may only live in the United Kingdom with permission and subject to such regulation as the Act provides.”

That, it is submitted, means persons other than those having the right of abode under sub‑section (1).  Mr Rutledge submits that precisely the point taken by Mr Luba in the present case was taken by the local authority and the Secretary of State in Abdi & Ismael.  Submissions are set out by Buxton LJ at paragraph 6, the statutory scheme having been described:

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

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

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

19.	Mr Luba submits, rightly in my view, that the closing sentence of paragraph 8 does not bear upon the present issue.  It was necessary for the court in Ismael to deal with it because of the submission made by the public authorities.  However, in the opening part of the paragraph Buxton LJ’s view is plain.  Buxton LJ uses the expression: “he needs leave to remain”.  At paragraph 16, he went on to deal with the further submission on behalf of the Secretary of State, which he considered to be a bold argument:

“…that ‘requires leave to enter or remain in the United Kingdom’ is a composite expression, addressing not two cases but one.  A person falls outside it if he does not require leave in one or other of the cases.  EEA nationals did not require leave to enter, so they were not subject to immigration control irrespective of their position with regard to leave to remain.  Quite apart from the difficulty of extracting that meaning from the bare wording of section 13(2) of the Asylum and Immigration Act 1996, the submission must fall when tested against the provisions of the Immigration Act 1971, in the context of which, it must be reiterated, section 13(2) has to be read.  That Act clearly makes a distinction between leave to enter and leave to remain, for instance in section 3(1)(b).  The draftsman of section 13(2) of the 1996 Act merely reflected the disjunctive nature of the two cases in the principal act by his use of the connection “or”.”  

20.	I accept that the court in Abdi & Ismael was not concerned with the case of a person born in the United Kingdom.  However, in my view the case can properly be relied on by the council as demonstrating the manner in which section 1 of the 1971 Act should be construed.  I should add that Mr Rutledge has also referred to the Code of Guidance prepared for local authorities under the Housing Act.  Section 182(1) of the Act requires local authorities to have regard to that Code of Guidance.  It is consistent with the approach taken by the respondents in this case.  

21.	I substantially accept the submissions of Mr Rutledge.  In my judgment Samuel does require leave to remain within the meaning of the statute and is subject to immigration control within the meaning of section 185(2).  He is not required to apply for leave to remain.  He may apply for it in order to regularise the position.  On a consideration of section 1 of the 1971 Act, with its two categories, it is in my judgment clear that, as the court in Abdi & Ismael in effect found, though on different facts, a person in Samuel’s position is subject to immigration control.  He comes within section 1(2) and not section 1(1) of the 1971 Act.  

22.	For those reasons I would dismiss this appeal.

Lady Justice Arden:

23.	I agree.  I would add these observations on section 185 of the Housing Act 1996.  Section 185(1) provides:  

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

24.	The words “from abroad”, which appear in section 185(1) do not appear in 85(2) or 85(2A).  Sub‑section (2) provides that a person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he is of a class prescribed by regulations made by the Secretary of State.   85(2A) merely provides that a person excluded from housing benefit cannot be included in any class prescribed by the Secretary of State.  However, 85(3) describes the words “from abroad”.  Under sub‑section (3), the Secretary of State may make regulations as to other descriptions of persons who are to be treated as persons from abroad who are ineligible for housing assistance.

25.	Mr Luba QC accepted that on this appeal the only issue was whether Samuel is subject to immigration control, and, as explained by my Lord, Pill LJ, Mr Luba QC did not seek to argue that Samuel was not a person from abroad for the purposes of section 185(1) of the 1996 Act.  In my judgment Mr Luba was correct to accept that the expression “a person from abroad” must mean a person who is ineligible for housing assistance under sub‑section (2) to sub‑section (4) of section 185 such a person may have physically come to this country from a foreign country.  However, he need not necessarily have done so.  Persons who, unless excluded under sub‑section (2A) or sub‑section (3), are subject to immigration control will be treated as if they were from abroad.  

26.	The effect of the recorder’s judgment in this case was that section 185(4) applies in this case.  That provides as follows:

“(4) A person from abroad who is not eligible for housing assistance shall be disregarded in determining for the purposes of this Part whether another person— 

(a) is homeless or threatened with homelessness, or
(b) has a priority need for accommodation.”

27.	In short, the appellant cannot rely on the presence of Samuel as a member of her household in the determination of her need for accommodation.  I would additionally draw attention to the fact that section 3(1)(b) of the Immigration Act 1971 (“the 1971 Act”) provides as follows:

“Except as otherwise provided by or under this Act, where a person is not a British citizen — 
(a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act;
(b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period;”

28.	The words “or, when already there, leave to remain in the United Kingdom” appear in brackets.  However, the presence of those words is some indication, albeit not a conclusive indication, that section 1 of the 1971 Act applies equally to persons who do not need leave to enter but who do need leave to remain.  

29.	Mr Luba submits that the terms of the power to create rules conferred by section 3(2) of the 1971 Act supports his interpretation of section 1, and his submission that Samuel is not subject to immigration control.  Section 3(2) provides that:

 “The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any period for which leave is to be given and the conditions to be attached in different circumstances…”  

30.	Mr Luba relies on the fact that the persons to whom the rules were to apply are persons who were required by the Act to have leave to enter, and the rules would be for regulating their entry and stay.  I accept that is curious that the Act refers to ‘leave to enter’ rather than ‘leave to enter or remain’ but in my judgment that again is not a conclusive indication. The reference to persons “required by this Act to have leave to enter” may include a reference to persons who would need leave to enter if they were proposing to enter, and thus cover the case of persons who are already here and who simply apply for leave to remain.

31.	If Mr Luba’s submission were correct, it would not be possible to take the course advised, for instance, in MacDonald’s Immigration Law and Practice, to apply for leave to remain under the Immigration Rules whilst still here before the child leaves in order to assist when the child seeks to re‑enter.  If Mr Luba were right on the interpretation of section 3(2), there would be no power to make such a rule.  The odd result would be that the child has to obtain leave to remain.  That is the effect of this case, but Mr Luba accepts that that can be done optionally.  The application could be made by an adult on the child’s behalf and so the fact that the result is that in certain circumstances a child may need to make an application for leave to remain is not fatal to the recorder’s reasoning.  

32.	In my judgment, it is not necessary to decide whether an application has to be made on the child’s behalf and I leave that short point open.  

33.	With these observations I agree with Pill LJ’s reasoning and with the order which he proposes on this appeal.

Lord Justice Scott Baker:

34.	I agree that this appeal should be dismissed for the reasons given by Pill LJ.

Order: Appeal dismissed