Remilien v. Secretary of State for Social Security Woke v. Chief Adjudication Officer [1997] UKSSCSC CIS_472

CIS_472_1994 Remilien v. Secretary of State for Social Security Woke v. Chief Adjudication Officer [1997] UKSSCSC CIS_472_1994 (27 November 1997)

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UK Social Security and Child Support Commissioners' Decisions

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Cite as: [1997] UKSSCSC CIS_472_1994

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Remilien v. Secretary of State for Social Security Woke v. Chief Adjudication Officer [1997] UKSSCSC CIS_472_1994 (27 November 1997)

R(IS) 13/98

(Remilien v. Secretary of State for Social Security and Anor.)
(Wolke v Chief Adjudication Officer)

Mr. J. Mesher CIS/472/1994

CA (Sir Stephen Brown P, Kennedy and Phillips LJJ)

HL (Lord Browne-Wilkinson, Lord Slynn of Hadley,

Lord Hoffmann, Lord Hope of Craighead,

and Lord Hutton)

Person from abroad - European Economic Area nationals - whether Home Office letter constituted requirement to leave for the purposes of regulation 21(3)(h) of the Income Support (General) Regulations 1987

The claimant was a French national in receipt of income support from 11 June 1992 as a lone parent. She received a letter from the Home Office dated 8 December 1993, which stated that "in view of the fact that you are in the United Kingdom in a non-economic capacity and that you have become a burden on public funds, the Secretary of State is not satisfied that you are lawfully resident here under European Community law and you should now make arrangements to leave the United Kingdom". The adjudication officer decided that the claimant was not entitled to income support from
8 December 1993 and the claimant appealed. The tribunal confirmed the adjudication officer's decision that she fell within paragraph (h) of the definition of "person from abroad" in regulation 21(3) of the Income Support (General) Regulations 1987 because the Secretary of State had required her to leave the United Kingdom. The claimant appealed to the Commissioner.

Held, by the Commissioner, allowing the appeal, that:

a person might be "required to leave" the United Kingdom under regulation 21(3)(h) even if he is not subject to a deportation order (para. 15). However, the words used in the letter fell "short of the necessary degree of insistence or compulsion for it to be possible to say that on receipt of the letter the claimant was required to leave the United Kingdom" (para. 20).

The Commissioner decided that as there were no grounds for review, the claimant's entitlement to income support did not cease. The Chief Adjudication Officer appealed and this appeal was joined with the case of Wolke in the Court of Appeal. Ms. Wolke, a Dutch national, had received a similar letter which concluded "I should add in that if you do not leave the United Kingdom on a voluntary basis then, in the present circumstances of your case, we will not take steps to enforce your departure from the United Kingdom." Mr. Justice Popplewell granted a declaration to the effect that Ms. Wolke could not be said to have been required to leave the United Kingdom.

Held, by the Court of Appeal (Phillips LJ dissenting), allowing the appeals, that:

although the claimant and Ms. Wolke were not in breach of any United Kingdom immigration rules which would give rise to a liability to deportation, they did not have an enforceable Community right to remain in the United Kingdom. The Home Office letter was a requirement to leave within the meaning of regulation 21(3)(h) because it was authoritative and conveyed a serious instruction. The object of the amendment to regulation 21(3) was "to enable an adjudication officer to cut off the flow of benefits to an European Economic Area member who had no legal right to be here".

The claimant and Ms. Wolke appealed to the House of Lords.

Held, by the House of Lords (Lord Slynn dissenting), allowing the appeals, that:

in the light of the terms of the judgement of the European Court of Justice in R v. the Immigration Appeal Tribunal, ex parte Antonissen [1991] ECRI-745, a requirement to leave would arise only when the person concerned had been placed under a legal obligation to leave. That would arise when a deportation order or an order for removal under article 15(2) of the Immigration (European Economic Area) Order 1994 had been made after any appeals had run their course. The Home Office letter did not amount to such a requirement, since it did not create a legal obligation to leave.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The claimant's appeal is allowed. The decision of the Walthamstow social security appeal tribunal dated 13 June 1994 is erroneous in point of law, for the reasons given below, and I set it aside. I am able to give the decision which the appeal tribunal should have given on the facts as it found them (Social Security Administration Act 1992, section 23(7)(a)(i)). That decision is set out in paragraph 2 below.

My decision is that the decision awarding the claimant income support from 11 June 1992 for an indefinite period does not fall to be reviewed and revised with effect from 8 December 1993 or from any date down to 13 June 1994. In the period from 8 December 1993 to 13 June 1994 the claimant's entitlement to income support is not precluded by the operation of paragraph (h) of the definition of "person from abroad" in regulation 21(3) of and paragraph 17 (b) of Schedule 7 to the Income Support (General) Regulations 1987.

The background

The claimant is a French national. That is shown by the copy of the passport issued to her on 22 February 1990, which also shows her then place of residence to have been Martinique. She has two children, born on 1 January 1990 and 27 April 1992. The claimant was born on 22 March 1968. She came to the United Kingdom with her then partner at some time after the birth of her first child and they lived together here. The relationship broke down and the claimant claimed income support on
11 June 1992 when she was living alone with her two children. The adjudication officer on 20 July 1992 awarded her income support from 11 June 1992. Entitlement continued through a change of address.

On 8 December 1993 the following letter was sent to the claimant from the Immigration and Nationality Department of the Home Office:

"It has come to the notice of this Department that you have claimed income support since 11 June 1992 and that you are still continuing to claim.

I should like to explain that as a European Community national you are free to enter and reside in the United Kingdom in order to exercise Treaty rights conferred by the Treaty of Rome. These include the right to seek or take employment, or to reside here in a non-economic capacity provided that you have enough resources to avoid being a burden on public funds.

However, in view of the fact that you are in the United Kingdom in a non-economic capacity and that you have become a burden on public funds, the Secretary of State is not satisfied that you are lawfully resident here under EC law and you should now make arrangements to leave the United Kingdom."

An application for judicial review of the Secretary of State's decision was made.

On 16 December 1993 the adjudication officer made a decision that the claimant was not entitled to income support from 8 December 1993 and did not satisfy the provisions of regulation 70 (urgent cases) of the Income Support (General) Regulations 1987 ("the Income Support Regulations"). An appeal against that decision was made on the claimant's behalf. The adjudication officer's written submission to the appeal tribunal on form AT2 asserted that the claimant was a "person from abroad" within paragraph (h) of the definition in regulation 21(3) of the Income Support Regulations because the Secretary of State had required her to leave the United Kingdom. It was also submitted that the claimant did not fall within regulation 70(3)(c) of the Income Support Regulations, because an application for judicial review was not an appeal under Part II of the Immigration Act 1971, and therefore did not qualify for payment as an urgent case.

The relevant part of regulation 21(3) provides:

"(3) In Schedule 7-

'Person from abroad' means a person, who-

...

(h) is a national of a Member State and is required by the Secretary of State to leave the United Kingdom;"

Under paragraph 17 of Schedule 7 to the Income Support Regulations a person from abroad who is a lone parent has an applicable amount of nil. Regulation 70(3)(c) provides:

"(3) This paragraph applies to a person from abroad within the meaning of regulation 21(3) (special cases) who-

...

(c) is awaiting the outcome of an appeal made under Part II of the [Immigration Act 1971] (including any period for which the appeal is treated as pending under section 33(4) of that Act);"

The appeal tribunal's decision

The claimant attended the hearing before the appeal tribunal on 13 June 1994 and was represented by Mr. Leon Daniel of Counsel. According to the chairman's note of evidence, the thrust of the argument put forward by Mr. Daniel was that the letter of 8 December 1993 did not require the claimant to leave the United Kingdom.

The appeal tribunal decided against the claimant and confirmed the adjudication officer's decision that the claimant was not entitled to income support from 8 December 1993. Its findings of fact were recorded as follows:

"The appellant arrived in the United Kingdom in September 1990. She lives with her two children in council accommodation. She had been in receipt of income support since 11 June 1992. On 8 December 1993 the Home Office wrote to her that they were 'not satisfied that you are lawfully resident here under EC law and you should now make arrangements to leave the United Kingdom.'"

Its reasons for decision were recorded as follows:

"The tribunal considered that the words used in the letter of 8 December 1993 were such that she was being 'required to leave the United Kingdom', in the normal interpretation of the words. Therefore as the appellant was a national of a member state (EC national) she came within regulation 21(3)(h) General Regulations.

Regulation 70 General Regulations did not apply."

The appeal tribunal chairman orally granted the claimant leave to appeal to the Commissioners after the decision was announced and recorded that grant of leave on the form AT3.

The appeal to the Commissioner

An oral hearing of the appeal was held on 11 April 1995. The claimant was again represented by Mr. Daniel. The adjudication officer was represented by Miss Geraldine Clark of Counsel and Mr. Lewis Varley of the Office of the Solicitor to the Department of Social Security. I am especially grateful to all the representatives for their assistance in a difficult area.

In a written submission Mr. Daniel had raised, in addition to the argument put to the appeal tribunal, arguments that paragraph (h) of the definition of "person from abroad" in regulation 21(3) of the Income Support Regulations was incompatible with European Community law in the light of Article 8A(1) of the Treaty on European Unity (which came into force on 1 November 1993) and that the denial of benefit while the outcome of a challenge to the Secretary of State's decision by way of judicial review was awaited was unlawful unequal treatment. In a judgment given on 16 March 1995 in the cases of R v. Secretary of State for the Home Department, ex parte Vitale and R v. Secretary of State for the Home Department, ex parte Do Amaral (concerning letters in similar form to that received by the claimant in this case), Judge J held that Article 8A did not create an unqualified right of every citizen of the European Union to reside in any Member State as and when they might wish. The limitations on the rights of free movement granted by Article 48 of the Treaty of Rome approved by the European Court of Justice ("ECJ") in R v. Immigration Appeal Tribunal, ex parte Antonissen [1991] ECR I-745 remained effective. The Court's ruling in that case was that:

"It is not contrary to the provisions of Community law governing the free movement of workers for the legislation of a Member State to provide that a national of another member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged."

Accordingly, the applicants were not lawfully present in the United Kingdom after receipt of the letters. I was informed that an appeal against Judge J's decision is to be taken to the Court of Appeal.

On the basis that the decision in Vitale and Do Amaral is binding on me, Mr. Daniel and Miss Clarke agreed that it would be sensible for any necessary decision in the present case on the effect of Article 8A of the Treaty on European Union or of the Community rights of free movement on the Income Support Regulations to be deferred until a further ruling had been obtained from the Court of Appeal. I agreed to that suggestion and also that I should defer any necessary decision on the third ground of appeal (unequal treatment) put forward on the claimant's behalf. Accordingly, the hearing proceeded on the basis that I would determine the proper effect of the Income Support Regulations, considered purely as a matter of domestic law, in the claimant's case. If my determination were to be that those provisions did not exclude the claimant from entitlement to income support, that would finally dispose of the appeal. If my determination were to be to the opposite effect, I would give an interim decision and defer consideration of the effect of Community law.

Paragraph (h) and deportation orders

Mr. Daniel submitted that since paragraph (h) of the definition of "person from abroad" in regulation 21(3) of the Income Support Regulations was introduced with effect from 12 April 1993, it had to be linked to the conditions for requiring nationals of Member States to leave the United Kingdom which had been laid down in Antonissen. The other paragraphs of the definition referred specifically to provisions of the Immigration Act 1971. He submitted that the requirement to leave in Antonissen was taken from paragraph 143 of the current Statement of Changes in Immigration Rules (repeated in subsequent versions), made under the powers of section 3(2) of the Immigration Act 1971. The rules provided that nationals of Member States may be admitted as work-seekers and may remain in the United Kingdom for six months before applying for a residence permit. Paragraph 143 provided:

"A person may be required to leave the United Kingdom, subject to appeal, if he falls a charge on public funds before issue of a first residence permit, or if, after 6 months from admission, he fails to meet the requirements of paragraph 140(a) or (b) above [for the issue of a residence permit]."

Mr. Daniel submitted that in the Immigration Act 1971 the term "required to leave" is given a specific meaning in section 5(1), which defines it in terms of a deportation order having been made under section 3(5) or 3(6). Thus a person could only be required to leave if a deportation order had been made against him, as the Secretary of State had in fact decided to do under section 3(5)(b) in Antonissen.

Mr. Daniel referred to the Immigration (European Economic Area) Order 1994, article 15(2) of which allows the removal of a national of a European Economic Area State from the United Kingdom on ceasing to be a qualified person under article 6. He suggested that there would have been no point in making that order if a national of a Member State could already be required to leave under other powers. Article 15(2) also provides for a right of appeal against a decision to remove a person as if the Secretary of State had decided to make a deportation order against the person. Mr. Daniel pointed out that the Immigration Act 1971 only provided for a right of appeal in section 15 against a Secretary of State's decision to make a deportation order or a refusal to revoke a deportation order. He suggested that if that right of appeal was not available, there appeared to be no alternative provision for the appeal mentioned in paragraph 143 of the Statement of Changes in Immigration Rules, which must therefore have been restricted to deportation orders.

I do not accept this part of Mr. Daniel's submissions. I do not consider that a person is "required to leave" the United Kingdom under paragraph (h) of the definition of "person from abroad" in regulation 21(3) of the Income Support Regulations only if subject to a deportation order. Section 5(1) of the Immigration Act 1971 provides:

"(1) where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is force."

That provision defines what a deportation order is, in terms of both a requirement to leave and a prohibition on re-entry. It does not necessarily restrict a requirement to leave to a requirement under a deportation order. There certainly seem to me to be considerable difficulties in working out the circumstances in which there was any statutory basis for securing the removal of nationals of Member States before the coming into force on 20 July 1994 of the Immigration (European Economic Area) Order 1994. Miss Clark conceded that until the coming into force of that Order there was a lacuna in the law in that short of a deportation order there was no way to force a national of a Member State to leave the United Kingdom, and in cases like the present the making of a deportation order would infringe Community law. However, those difficulties are not directly my concern. I do not find the nature of the scheme of control of the residence in the United Kingdom of nationals of Member States or the co-ordination with the income support legislation to be such as to lead to the conclusion argued for by Mr. Daniel. At the date of the introduction of paragraph (h) of the definition of "person from abroad", the United Kingdom had the power, without contravening Community law as declared in Antonissen, to legislate to require nationals of Member States to leave the United Kingdom under the conditions laid down in Antonissen. Whether or not our domestic immigration legislation had given effect to that power outside the existing provisions on deportation, in my view paragraph (h) is to be construed as applying whenever the Secretary of State has lawfully required a national of another Member State to leave the United Kingdom. Paragraph (c) of the definition already applied to a person subject to a deportation order.

The ordinary meaning of "required to leave"

That conclusion of course leaves for determination in the present case the question of whether the claimant had been lawfully "required to leave" the United Kingdom by the Secretary of State, in the ordinary meaning of those words in their context. On that point, Mr. Daniel submitted that a person could not be said to be required to leave unless there was some legal obligation to do so. He said that since there was nothing which could be done to enforce the letter of 8 December 1993 against the claimant she could not be said to have been required to leave. He referred to a letter dated 28 September 1994 from the Immigration and Nationality Department of the Home Office to Walthamstow CAB in connection with another person (and annexed to his skeleton argument). The letter contains the following passage:

"Thank you for your letter of 24 August 1994 in which you state that you wish to appeal against our decision, notified on 15 July 1994, to consider your client as not being lawfully resident in the United Kingdom.

I must advise you that although we have advised your client that she should leave this country, this cannot be considered as a "requirement' to leave since we have no intention of enforcing her departure. As a result, no right of appeal is accorded in cases such as this."

Miss Clark submitted that the words "required to leave" were simple and should be given their ordinary meaning. The letter of 8 December 1993 at the least contained a request to leave by a person in authority based on a statement of what the claimant ought to do to comply with the law. That, she said, was sufficient to come within the ordinary meaning of "required to leave". She accepted, however, that the question was one of impression and that there could legitimately be reliance on the principle that a provision excepting a person from a prima facie entitlement to benefit should be construed strictly. Miss Clark also referred to the approach adopted by Judge J in Vitale and Do Amaral. He held that the letters in that case, which contained requests phrased identically to those in the present case, were properly founded on the principles accepted by the ECJ in Antonissen. Miss Clark relied on Judge J's clear conclusion that those letters had the effect that the applicants were not lawfully present in the United Kingdom and therefore were not entitled to income support by reason of the effect of paragraph (h) of the definition of "person from abroad".

In answer to that last point, Mr. Daniel, who had appeared as junior Counsel in Do Amaral, submitted that the principal submissions in Vitale and Do Amaral were on Article 8A of the Treaty on European Union and that the meaning of the Income Support Regulations was not subjected to any detailed analysis. He argued that Judge J's views on the latter were not part of the ratio of the decision.

My conclusion is against Miss Clark's submissions. I first consider the interpretation of regulation 21(3) of the Income Support Regulations as if the judgment in Vitale and Do Amaral had not been given. The precise words of paragraph (h) of the definition of "person from abroad" must be looked at. They do not make the test whether a person is not lawfully resident in the United Kingdom or has been informed that in the Secretary of State's opinion she is not lawfully resident. The test is whether the person "is required to leave the United Kingdom" and is required to do so by the Secretary of State. The focus must therefore be on what is done by or on behalf of the Secretary of State. The context of paragraph (h) within the Income Support Regulations must be looked at. The other paragraphs of the definition (which I shall not set out) in the main describe clear cut circumstances where defined action has been taken in relation to a person under the Immigration Act 1971. I also take into account that the effect of a person from abroad having an applicable amount of nil is to exclude someone who would otherwise be entitled to income support from entitlement. I take from those two factors the desirability of paragraph (h) being construed in a way which enables the circumstances in which it applies to be easily identified by all concerned. That leads one, if there is ambiguity in the words of the paragraph, towards a certain central meaning rather than towards an uncertain expanded or loose meaning. I have left out of account the letter dated
28 September 1994 from the Immigration and Nationality Department, on which Mr. Daniel relied. That letter merely expresses an opinion on the very question of law before me.

I note that the first non-obsolete meaning of "require" given in the third edition of the Oxford Shorter English Dictionary is "to demand (of any one) to do something". The second meaning given is "to ask for (some thing or person) authoritatively or imperatively, or as a right; to demand, claim, insist on having". Without attempting to give any comprehensive or exhaustive definition of the words "is required to leave" in paragraph (h), in my view their ordinary everyday meaning carries with it notions of compulsion or insistence such that the terms of the letter of 8 December 1993 did not "require" the claimant to leave the United Kingdom. That approach is consistent with the identification of a certain central meaning. I accept that in some contexts "require" may mean little more than "ask", but I am quite satisfied that that expanded and loose meaning is not tenable in the context of paragraph (h). The letter of 8 December 1993 drew attention to the Secretary of State's not being satisfied that the claimant was lawfully resident in the United Kingdom. It may of course be said that a person who is not lawfully resident in the United Kingdom is under a legal obligation to leave, but the statement of the Secretary of State's view added nothing to any such obligation which already existed by operation of law. Then the letter said that the claimant should now make arrangements to leave the United Kingdom. In my view, that form of words simply falls short of the necessary degree of insistence or compulsion for it to be possible to say that on receipt of the letter the claimant was required to leave the United Kingdom. I would characterise the form of words as advice to the claimant to make her own arrangements to leave. That seems to me to fall well short of a requirement actually to leave.

Does what Judge J said in Vitale and Do Amaral prevent me from reaching that conclusion? In some respects, his judgment provides powerful support. He refers to the form of words used as "advice" (page 11 of the transcript), a "request" to leave (page 27), and as asking or requiring the applicants to make arrangements to leave (page 27). Not once does he refer to the applicants in those cases as being required to leave the United Kingdom, as opposed to being asked or required to make arrangements to leave. However, Judge J expressed his conclusion on part of the argument on page 27 as follows:

"Under regulation 21(3)(h) of the Income Support Regulations 1987 the rate of support payable to a national of a Member State of the European Union who is 'required by the Secretary of State to leave the United Kingdom' will be 'nil'. Without trespassing into areas which have yet to be decided by the social security appeal tribunal it is clear that the regulations are designed to avoid payment of income support to a Community national who is not lawfully present in the UK. The amendments brought into force from
1 August 1994 are not relevant. The proper operation of the 1987 Income Support Regulations depended on notification by the Secretary of State in an appropriate case that the particular individual was not entitled to remain in the United Kingdom. Therefore, these letters were not ultra vires the Secretary of State neither did they, nor did the 1987 regulations, fall outside the provisions of Community law, nor were they a 'sham'."

That passage certainly assumes (at the least) that the operation of paragraph (h) is triggered without more by notification to a person by the Secretary of State that the person is not entitled to remain in the United Kingdom. Similar assumptions are expressed at other points in the judgment. However, it must be borne in mind that the applications for judicial review were against the decisions of the Secretary of State about continued residence embodied in the letters to the applicants. The submissions, as described on page 10 of the transcript, were directed to the lawfulness or otherwise of those decisions. The effect on income support entitlement, as the Income Support Regulations were in fact being operated by the authorities, was part of the background to the importance of those decisions to the applicants. Judge J also held that in their appeals against adverse income support decisions the applicants could dispute that they were not lawfully resident in the United Kingdom and all the evidence and all domestic and European law would be considered in those appeals. In that sense, the decisions on paragraph (h) rested on the basis of the applicants being found not to be lawfully present in the United Kingdom, in that, if it were determined on a fresh investigation of the evidence and the law that the applicants were lawfully present, paragraph (h) could not apply. However, especially in view of the care taken by Judge J not to trespass on areas to be decided by social security appeal tribunals in the cases before him, I am satisfied that only that last point about paragraph (h) was a necessary part of his decision and binding on me. In so far as Judge J expressed assumptions about the circumstances which would trigger paragraph (h), I am satisfied that those assumptions were not a necessary part of his decision and were not based on detailed submissions such as those from which I have benefited. Therefore I conclude that the decision in Vitale and Do Amaral does not preclude me from reaching the conclusion expressed in paragraph 19 above.

The decision on the appeal

I must now relate my conclusions of law to the appeal tribunal's decision in the present case. In view of my conclusions of law, I find that the appeal tribunal erred in law in holding that the claimant was being required to leave the United Kingdom so as to fall within paragraph (h) of the definition of "person from abroad" in regulation 21(3) of the Income Support Regulations. No reasonable appeal tribunal properly instructed as to the law could have reached that conclusion. In addition, neither the appeal tribunal's decision nor the adjudication officer's decision under appeal identified a ground of review of the award of income support to the claimant from 11 June 1992 for an indefinite period. Although there would have been no difficulty, on the view of the case taken by the adjudication officer and the appeal tribunal, in relying on the issue of the letter of 8 December 1993 as a relevant change of circumstances under section 25(1)(b) of the Social Security Administration Act 1992, the failure to ask the right questions in relation to review and revision was an additional error of law.

For those reasons, the decision of the appeal tribunal dated 13 June 1994 must be set aside as erroneous in point of law. I am able to give the decision which the appeal tribunal should have given on the basis of the facts which it found. There is no suggestion that the adjudication officers decision awarding the claimant income support from 11 June 1992 was given in ignorance of or under a mistake as to a material fact or was erroneous in law. The only potential ground of review under section 25 of the Social Security Administration Act 1992 is a relevant change of circumstances since the decision was given (section 25(1)(b)). The issue of the letter of 8 December 1993 was a change of circumstances, but in my judgment was not a relevant change of circumstances because it was not in law capable of leading to a different decision on the claimant's entitlement to income support. Therefore, the adjudication officer has failed to prove a ground of review. For the same reason, review under regulation 17(4) of the Social Security (Claims and Payments) Regulations 1987 is not available because the adjudication officer has failed to prove that from 8 December 1993 the requirements for entitlement to income support are not satisfied. No other potential ground of review or reason for the non-satisfaction of the requirements for entitlement down to 13 June 1994 was put forward to the appeal tribunal by the adjudication officer.

My decision giving effect to that reasoning is set out in paragraph 2 above. In consequence, no decision is necessary on the questions mentioned in paragraphs 11 and 12 above. The result of my decision is that the existing award of income support to the claimant from 11 June 1992 for an indefinite period has continued in effect, so that income support would continue to be payable on the same basis as prior to
8 December 1993, subject to alteration under section 159 or 160 of the Social Security Administration Act 1992 to take account of benefit upratings etc. My decision in relation to the letter of 8 December 1993 is limited to the period down to the date on which the facts on which it is based were found. It seems unlikely that the adjudication officer could establish another ground of review in that period, but that remains a theoretical possibility. The award of income support from 11 June 1992 may of course continue in effect beyond 13 June 1994, subject to any alteration under section 159 or 160 of the Social Security Administration Act 1992, unless and until there is a review and revision of the award or the running of the open-ended claim is terminated.

Date: 4 May 1995 (signed) Mr. J. Mesher

Commissioner

The Chief Adjudication Officer appealed to the Court of Appeal and this appeal was joined with the case of Wolke in the Court of Appeal. The decision of the Court of appeal follows.

DECISION OF THE COURT OF APPEAL

Mr. R. Plender QC and Miss G. Clark (instructed by the Solicitor to the Departments of Health and Social Security) appeared on behalf of the Appellant.

Mr. R. De Mello and Mr. L. Daniels (instructed by Messrs. Powell & Co., Solicitors, SE18 6ED) appeared on behalf of the Respondent, Remilien.

Mr. J. Howell QC and Mr. S. Wright (instructed by the Child Poverty Action Group, London, EC1 9PY) appeared on behalf of the Respondent, Wolke.

LORD JUSTICE KENNEDY:

Issue

These two appeals raise almost the same issue, namely whether a national of a member state of the European Economic Area has been "required by the Secretary of State to leave the United Kingdom" within the meaning of regulation 21(3)(h) of the Income Support (General) Regulations 1987 SI 1987 No. 1967 when she has received from the Immigration and Nationality Department of the Home Office a letter in these terms:

"It has come to the notice of this Department that you have claimed Income Support since 10 November 1994 and that you are still continuing to claim. I should like to explain that as a European Economic Area (EEA) national you are free to enter and reside in the United Kingdom in order to exercise Treaty rights conferred by the Treaty of Rome. These include the right to seek or take employment, or to reside here in a non-economic capacity provided that you have enough resources to avoid being a burden on public funds. However, in view of the fact that you are in the United Kingdom in a non-economic capacity and that you have become a burden on public funds, the Secretary of State is not satisfied that you are lawfully resident here under European Community Law and you should now make arrangements to leave the United Kingdom. I should add that if you do not leave the United Kingdom on a voluntary basis then, in the present circumstances of your case, we will not take steps to enforce your departure from the United Kingdom."

That is what happened in the case of Mary Wolke, the letter being dated
10 April 1995. In the case of Nathalie Remelien a letter was sent by the Home Office on 8 December 1993, and was in identical terms save that the date in the first sentence was 11 June 1992, and the last sentence was omitted.

Facts

(A) Remelien

For present purposes in is not necessary to go into the facts in detail, but it is necessary to outline how each case has reached this court. I start with Ms. Remelien, a French national born on 22 March 1968. On 1 January 1990 she gave birth to a son. She says in an affidavit that in September 1990 she came to the United Kingdom from Martinique but DSS records suggest that she was in receipt of United Kingdom child benefit from August 1990 onwards, and entitlement to such benefit does not arise until the claimant has been in the United Kingdom for six months. She may therefore have arrived earlier than she says in her affidavit. The records also suggest that she was in receipt of one parent benefit from 5 November 1990. On
27 April 1992 her second child was born. Apparently she lived with a partner, Vincent Larcha, until June 1992, but she has not been consistent as to whether or not he supported her. She has similarly been inconsistent about whether thereafter she sought work. Certainly in June 1992 she claimed income support for herself and her two children, and that claim was made on form A1, which is appropriate if at the time of the claim the claimant is not available for work. Income support was paid from 11 June 1992 until after she had received the letter from the Home Secretary to which I have already referred, dated 8 December 1993. On 16 December 1993 the adjudication officer decided that the claimant was not entitled to income support. His decision was based on regulation 21(3)(h) of the 1987 Regulations. On
8 February 1994 Miss Remelien wrote to the Home Secretary purporting to appeal against the decision to terminate income support, and said that she was seeking work. After an ineffective attempt to raise the matter with an immigration adjudicator Miss Remelien on 17 February 1994 appealed to the social security appeal tribunal. She subsequentially obtained leave to move for judicial review, but withdrew that application before, on 13 June 1994, the tribunal dismissed her appeal. The tribunal gave leave for her appeal to the Commissioner who on 9 May 1995 allowed her appeal, and it is from his decision that the Chief Adjudication Officer has appealed to this court.

(B) Wolke

This appellant is a Dutch national. In April 1994 she came to the United Kingdom with her partner Michael Fitzpatrick and their son, Danny. In November 1994 she and her partner separated, and she began to receive income support together with an allowance for the child. On 10 April 1995 there was written the letter to which I have already referred. On 12 April 1995 the adjudication officer decided that she was not entitled to further income support and made his decision in reliance on regulation 21(3)(h). She then appealed to the social security appeal tribunal, and on 19 October 1995 the tribunal, at the request of the adjudication officer adjourned the hearing pending the outcome of two appeals to the Court of Appeal, namely the appeal of Vitale, which was heard on 16 January 1996, and the appeal of Remelien. The tribunal said:

"Any decision made by the tribunal today upon the merits of the appeal would be of no effect until the outcome of the present applications for leave to appeal are known and the appeal should be adjourned until that time."

On 18 January 1996 she obtained leave to move for judicial review of both the letter of 10 April 1995 and the tribunal's decision to adjourn. The matter came before Mr. Justice Popplewell and on 30 April 1996 he concluded that for the purposes of regulation 21(3)(h) it could not be said that by the letter of
10 April 1995 Ms. Wolke had been "required by the Secretary of State to leave the United Kingdom." The Judge granted a declaration to that effect, as is clear from the transcript, although that part of his decision is not reflected in the order as drawn. As he was determining what he regarded as the substantive issue it was common ground before him that the question of adjournment was, as he put it "of academic interest only". He found that it involved no question of principle, but nevertheless, having considered it, the judge concluded that the application to review the SSAT decision to adjourn was ill founded, because there was ample evidence upon which the tribunal, in the exercise of its discretion, was entitled to decide as it did. The judge then gave leave to appeal on the declaration. During the course of the hearing before us we were asked by Mr. Howell, QC, for Miss Wolke, to grant leave to cross-appeal. Mr. Howell wanted to challenge the judge's decision in relation to the SSAT decision to adjourn. Leave was refused because, as the judge said, that part of his decision was in no way critical. If the point was to be argued the tribunal would have to be given an opportunity to appeal, and it would not be right to spend time and money in this court investigating such a point. Mr. Howell submitted that leave should be granted because otherwise the judgment in the court below would be regarded as approving the course taken by the tribunal in this case, but, as the judge was careful to point out, it was his view that no issue of principle was involved, from which it follows that if similar considerations were advanced to a tribunal in future the tribunal, in the exercise of its discretion, might come to quite a different conclusion.

Statutory framework.

I return therefore to the issue which I identified at the beginning of this judgment, and in setting out the statutory framework I acknowledge my indebtedness to the helpful skeleton prepared by Mr. Plender, QC, for the appellants.

Section 124(1) of the Social Security Contributions and Benefits Act 1992 provides that a person in Great Britain is entitled to income support if he is over the age of 18, has no income (or his income does not exceed the applicable amount), he is not engaged in remunerative work and (except in prescribed circumstances) he is available for, and actively seeking, employment. Pausing there, it is worth noting that the entitlement extends to all persons in Great Britain. There is no requirement of citizenship, but, if he has no income, the amount of income support he is entitled to receive is stated by section 124(4) to be "the applicable amount". Section 135(1) enables the applicable amount to be prescribed in relation to different types of income-related benefits, and that has been done in Schedule 7 of the Income Support (General) Regulations 1987, paragraph 17 of which provides that where a claim is made by "a person from abroad" who is a single claimant or a lone parent the applicable amount is nil. Regulation 21(3) of the regulations provides that in Schedule 7 "person from abroad" means a person who:

"(c) is the subject of a deportation order being an order under section 5(1) of the 1971 Act (deportation) requiring him to leave and prohibiting him from entering the United Kingdom; or

...

(h) is a national of a member State and is required by the Secretary of State to leave the United Kingdom."

Paragraphs (a) to (g) inclusive of regulation 21(3) refer to the status of claimants in terms of immigration law, but not all are persons who are subject to a deportation order, or who for some other reason ought not to be here. For example, paragraphs (e) and (f) refer to persons granted temporary admission, and paragraph (g) refers to those whose immigration status has not yet been determined by the Secretary of State.

Paragraph (h) was added by regulation 4 of the Income Support (Amendment) Regulations, SI 1993 No. 315 with effect from 12 April 1993, and before us there have been submissions made as to why that paragraph was added at that time.

Regulation 70(3) provides that in certain cases a "person from abroad" is protected from the full rigour of the provisions to which I have just referred whilst his appeal is being considered, or pending a determination by the Secretary of State, but it is common ground that regulation 70(3) is of no direct relevance in either of the cases with which we are concerned.

The decisions under appeal

(A) Mr. Commissioner Mesher - Remelien

Before Mr. Commissioner Mesher it was submitted that a claimant would only be "required by the Secretary of State to leave" (for the purposes of regulation 21(3)(h)) if he was made subject to a deportation order. That submission was rejected by the Commissioner because, as he pointed out, persons subject to deportation orders are expressly provided for in regulation 21(3)(c). Mr. Plender submits that nevertheless the rejected submission lies at the heart of the case for each respondent in this court.

Having rejected the primary submission advanced before him the Commissioner went on to consider the meaning of the words used in regulation 21(3)(h), and in particular the meaning of the word "required". He said that as the regulation deprives a claimant of the right to receive benefits its words should be strictly construed. As to the critical words in the letter received by Miss Remelien, namely:

"the Secretary of State is not satisfied that you are lawfully resident here under EC law and you should now make arrangements to leave the United Kingdom",

the Commissioner said that the Secretary of State's expression of opinion as to the lawfulness of Miss Remelien's continued residence added nothing to any pre-existing obligation to leave, and "the form of words simply falls short of the necessary degree of insistence or compulsion for it to be possible to say that on receipt of the letter the claimant was required to leave the United Kingdom". The Commissioner characterised the words used as simply advice. So, as I read the decision, it turned entirely on the words used and not, for example, on the powers available to the Secretary of State. If the letter had been more strongly worded the decision, it seems, would have been different.

(B) Mr. Justice Popplewell - Wolke

Popplewell J. dealing with the case of Miss Wolke, adopted a similar approach. He accepted that because of the existence of regulation 21(3)(c) paragraph (h) "must mean something less than the situation where a deportation order has been made". As the letter with which he was concerned had the final sentence which was not in the letter to Miss Remelien the judge found it unnecessary to decide whether the decision in the case of Remelien had been correct. He also derived little assistance from other authorities to which he had been referred because in the end he was faced with what he described as "a very simple point ... essentially a jury point". The judge continued at page 32D of the transcript:

"I simply pose the question that if you said to a jury 'is she now required to leave?' there could be only one answer, and that is 'no'. If you then pose the second question 'may she in the future be required to leave?' the answer would be 'yes'."

He went on to say that if there was any ambiguity he, like the Commissioner, would adopt the construction which favoured the claimant because she was being deprived of a right, but the judge found no ambiguity and concluded that Miss Wolke "is not now required to leave".

Immigration law & EEA nationals

Although both decisions under appeal turned on the words used in the letters it seems to be accepted on all sides that in order properly to evaluate the letters it is necessary to consider what if any right the recipients had to remain in the United Kingdom when the letters were written.

As EEA nationals they were each as a matter of United Kingdom domestic law, subject to immigration control. They were only entitled to live 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 was imposed by the Immigration Act 1971 (see section 1(2)).

Article 48 of the Treaty of Rome required that freedom of movement for workers be secured, and at the time of Miss Remelien's entry in 1990 that was provided for by rules 69, 72 and 150 of the Statement of Changes in Immigration Rules (HC 251) made under section 3(2) of the 1971 Act. Those Rules remained in force until 1 October 1994, when they were superseded by HC 395, so in her case the same Rules were applicable throughout. So far as material the relevant rules read:

"69. A national of a Member State of the European Community is entitled to admission to take or seek employment, to set up in business, to become self-employed or otherwise to exercise the right of establishment or the rights relating to the provision or the receipt of services as provided in Community Law.

Provided he does not fall a charge on public funds, a person admitted in accordance with paragraph 68, 69 or 70 is free to remain for up to six months without further formality, but is required to apply for a residence permit if he wishes to stay longer (see paragraph 147).

A person may be required to leave the United Kingdom, subject to appeal, if he falls a charge on public funds before issue of a first residence permit ..."

Before us Counsel for both appellants confirmed that the EC right which their clients were purporting to exercise on entry into the United Kingdom was that embodied in Article 48 of the Treaty. In other words they came here to seek employment. They did not find it within six months, and it is worth noting that in R v. Immigration Appeal Tribunal Ex parte Antonissen [1991] ECR 1-745 the European Court of Justice ruled that:

"It is not contrary to the provisions of Community law governing the free movement of workers for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged."

That decision was made in relation to earlier Immigration Rules (HC 169) but the wording of the material rules were substantially the same as in HC 251. In December 1993 Miss Remelien had been in the United Kingdom for more than six months, she had not yet been issued with a residence permit, she was in receipt of income support, so she had in the words of rule 150 "fallen a charge on public funds" and she could therefore under that rule (and in accordance with Community law, see Antonissen) be required to leave the United Kingdom, subject to appeal, unless she provided evidence that she was continuing to seek employment and that she had genuine chances of being engaged.

Mr. Plender, as I understand his submissions, does not contend that the Home Secretary's letter of 8 December 1993 constituted a requirement for the purposes of rule 150 of the Immigration Rules, and it is common ground that if, in reliance on that rule, the Secretary of State had wanted to oblige Miss Remelien to leave he could, at that time, only have done so by taking the steps prescribed in the 1971 Act to obtain a deportation order. The liability to deportation could not even arise unless the Secretary of State deemed the deportation of Miss Remelien "to be conducive to the public good" (section 3(5)), which he might find it difficult to do when Miss Remelien's only "offence" was to claim a state benefit. Assuming that that obstacle could be overcome, Miss Remelien would have the right to appeal against the decision of the Secretary of State to make the deportation order (section 15(1)), and if she did so the order could not be made until after the appeal was determined (sections 15(2) and 33(4)). If there was no appeal, or if the appeal was dismissed, then the Secretary of State could make a deportation order, that is to say an order requiring Miss Remelien to leave and prohibiting her from entering the United Kingdom (see section 5(1)). In determining any appeal an adjudicator would have been able to consider not only the relevant domestic and Community law, but also whether the Secretary of State should have exercised his discretion differently (see section 19(1)).

So, in my judgement, in early December 1993 Miss Remelien had no right to live, work or settle in the United Kingdom which was enforceable under either domestic or Community law. On the other hand she was here, and she was not committing any offence by being here. She was not, for example, an illegal entrant, or someone who had failed to comply with a requirement of limited leave to enter (see section 24). She was liable to be required to leave in accordance with paragraph 150 of HC 251, but at least until she was so required I do not see how her presence in the United Kingdom could properly be described, in terms of immigration law, as unlawful.

Turning to Miss Wolke, her position on entry in April 1994 was the same as that of Miss Remelien, but on 20 July 1994 there came into force section 7(1) of the Immigration Act 1988, and the Immigration (European Economic Area) Order 1994. When the new Immigration Rules (HC 395) came into force on 1 October 1994 rule 5 of those Rules provided that "save where expressly indicated, these Rules do not apply to a EEA national ... who is in entitled to enter or remain in the United Kingdom by virtue of the provisions of the Immigration (European Economic Area) Order 1994". In other words the provisions relevant to those like Miss Wolke which had previously been in the Rules were now to be found in the statute and in the Order. Section 7(1) provided that:

"A person shall not under the principal Act (the 1971 Act) require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Community Act, 1972."

The 1994 Order was made under section 2(2) of the 1972 Act and paragraph 4(1) of the Order provides that:

"A qualified person shall be entitled to reside in the United Kingdom, without the requirement for leave to remain under the 1971 Act, for as long as he remains a qualified person."

Paragraph 6 defines a qualified person as a worker within the meaning of Article 48 of the EC Treaty, and paragraph 15(2) provides that an EEA national may be removed from the United Kingdom on ceasing to be a qualified person, but he may appeal against the decision to remove him as if he were a person in respect of whom the Secretary of State had decided to make a deportation order (section 15(1)(a) of the 1971 Act). If that appeal fails the mechanism for removal is still the making of a deportation order under section 5 of the 1971 Act (see paragraph 20(2) of the 1994 Order).

So in my judgment the position of Miss Wolke in early April 1995 was substantially the same as that of Miss Remelien in December 1993, although the Immigration Rules had given way to the 1994 Order. It would seem that if Miss Wolke had ever been a qualified person she was so no longer, and she had no enforceable right to live, work or settle in the United Kingdom, but by continuing to live here she was committing no offence.

Authorities

Having dealt in some detail with the status of Miss Remelien and Miss Wolke in terms of immigration law it is relevant to remember that the statutory provision with which we are concerned is purely fiscal. The Income Support (General) Regulations 1987 do not affect status, but, at least in some cases, they define entitlement by reference to status. Since regulation 21(3)(h) was added on
12 April 1993 the Secretary of State has written many letters very similar to those with which we are concerned, and such letters have been considered by courts on two previous occasions.

In R v. Secretary of State for the Home Department ex parte Vitale and another [1995] 3 CMLR 605 two EEA nationals from different countries entered the United Kingdom in June 1993. Neither remained economically active, but they claimed and received income support until they separately received letters identical to that received by Miss Remelien in the present case. They then, by means of judicial review, challenged the "decisions" contained in the letters they had received. Before Judge J (as he then was) there were four basic submissions, namely:

(1) that the decisions were susceptible to judicial review:

(2) that the letters were unlawful because they failed to offer any avenue of appeal;

(3) that the decisions were unlawful because, as EEA nationals, each applicant had a right to reside in the United Kingdom, and

(4) that because their rights were infringed they were entitled to damages.

The judge dealt with the first two submissions by pointing out the availability of judicial review in relation to decisions embodied in the letters, and the availability of appeals to the SSAT in relation to the subsequent decisions to terminate income support. The third submission was based upon what the judge held to be a mistaken interpretation of article 8(a)(1) EC as amended by the Treaty on European Union. That conclusion in relation to the third submission has now been upheld by the Court of Appeal. Judge J however went on to say that once the applicants ceased to be economically active their presence here ceased to be lawful, and the letters they received were declaratory of that fact. For reasons set out above I do not agree, unless there can be substituted for the word "lawful" the words "in the exercise of any enforceable right". On behalf of one of the applicants it was submitted that because it might well be impossible to obtain a deportation order in his case the letter he received was a sham, designed to avoid payments of income support. The judge rejected that submission saying that "the mere fact that (the Secretary of State) may have been bereft of any direct sanctions or authority to enforce compliance with his request did not invalidate the request." The judge went on to say that it is clear that the Income Support Regulations 1987 "are designed to avoid payment of income support to a Community national who is not lawfully present in the United Kingdom." If that can be read as "who is not present in the United Kingdom in the exercise of any enforceable right which entitles him to remain here" I would agree.

In Castelli and Tristan-Garcia v. Westminster City Council, 21 February 1996, unreported, a differently constituted division of this court was concerned with claims for temporary accommodation under the Housing Act 1985 made by two EEA nationals each of whom had received a letter from the Secretary of State telling him that he should now make arrangements to leave the United Kingdom. As the court pointed out, the statutory duty to provide accommodation is owed to anyone in need who is here, but that duty has been judicially interpreted not to apply to a limited category of persons not lawfully here, such as illegal entrants. The court held that receipt of the letters did not place the appellants within that limited category. One member of the court suggested that a letter identical to that received by Miss Wolke gave the recipient permission to stay, but the other members of the court did not agree, although one of them described the letter as ambiguous, and the other said that receipt of it did not make the recipient unlawfully here. That spread of judicial opinion seems to me to be of little assistance in the present case.

Submissions

(A) Appellants

Basically the submission made by Mr. Plender on behalf of the appellants in each of these cases, and which encompasses the grounds of appeal, is the same, namely that the Commissioner in the case of Miss Remelien, and the judge in the case of Miss Wolke was wrong to construe the words used in the letter as he did. Mr. Plender contends that when such a letter is sent:

(1) by or on behalf of the Secretary of State, who is plainly the United Kingdom government minister vested with authority in relation to immigration matters, and who has authority to institute proceedings leading to a deportation order,

(2) to an EEA national who is at present here without the benefit of any legal right (whether under domestic or Community law),

(3) and the letter tells the recipient that she "should now make arrangements to leave the United Kingdom",

that letter for the purposes of regulation 21(3)(h) of the Income Support Regulations 1987 amounts to a requirement by the Secretary of State that the recipient should leave the United Kingdom. It is, Mr. Plender submits, immaterial that the Secretary of State does not at present intend to use such powers as he has to ensure that his requirement is complied with. In argument Mr. Plender used the analogy of a police constable who instructs a boy on a pedal cycle to get off the pavement. The analogy which occurs to me is that of a farmer who tells a picnicker in firm terms to leave his field. The farmer may not intend to release his dog or threaten the picnicker with a shotgun, or to sue for trespass, and if asked he might even say so, but the picnicker is unlikely to be left in any doubt, he has been required to go.

(B) Respondents

Mr. Howell, whose submissions were adopted by Mr. de Mello for Miss Remelien, began by submitting that as a matter of domestic law neither respondent did anything unlawful by remaining in the United Kingdom after she ceased to be able to justify her presence by reference to a Treaty right, and that prior to receipt of the relevant letter neither was under any obligation to leave. Mr. Plender accepts those propositions, and so do I. Mr. Howell then submitted that in reality the only effect of the letter in each case was to advise the recipient that the Secretary of State was not minded to exercise his power to remove her. That seems to me to be incorrect. The letter, in plain terms, informs the recipient that because she has no identifiable right to remain she should now go, and because it comes from an authoritative source, and not for instance from a friend or adviser, it amounts to a requirement.

Because they cannot accept that either letter amounts to a requirement Mr. Howell and Mr. de Mello were driven to submit that the words of regulation 21(3)(h) of the 1987 Regulations can only be satisfied by means of a deportation order, whether made directly by resort to the 1971 Act or initiated by means of a decision made pursuant to paragraph 15(2) of the Immigration (EEA) Order 1994. That, as it seems to me, cannot be right, because, as both Mr. Howell and Mr. de Mello recognise, it means that on 12 April 1993, regulation 21(3)(h) was added to the 1987 Regulations unnecessarily, to provide for a situation already expressly covered by regulation 21(3)(c). In an attempt to meet that difficulty Mr. Howell submitted that the amendment may have been made in anticipation of the 1994 Order, but, as Mr. Plender pointed out in reply, that explanation cannot be right for a number of reasons. Not only was the amendment made ahead of the Order, but it was also brought into effect 15 months ahead of the Order. Its wording is in no way related to the Order which, in paragraph 15(2) envisages an EEA national being removed from the United Kingdom, whereas regulation 21(3)(h) envisages such a national being required by the Secretary of State to leave. And, most important of all, if pursuant to 1994 Order action has to be taken to remove an EEA national the final result will be a deportation order, for which regulation 21(3)(c) provides.

As an alternative submission Mr. de Mello put forward the possibility that regulation 21(3)(h) might be satisfied if the Secretary of State had given notice of intention to deport, or had decided to remove pursuant to paragraph 15(2) of the 1994 Order, but a deportation order had yet to be made. That seems to me to place an unjustifiably narrow interpretation upon the words used in regulation 21(3)(h). He also, like Mr. Howell, contended that if regulation 21(3)(h) were interpreted in the way for which Mr. Plender contends it would place EEA nationals at a disadvantage as compared with those from outside the EEA. Once required to leave they would have no access to benefits, whereas others would be in a better position. An examination of the other paragraphs of regulation 21(3) shows that in reality that would not be the case.

Conclusion

In my judgment Mr. Plender's submissions should be accepted, not only in order to render the amendment of the 1987 Regulations meaningful, but also because like Judge J, I have no difficulty in discerning what at the time of the amendment Parliament was intending to achieve. The object was to enable an adjudicating officer to cut off the flow of benefits to a EEA national who had no legal right to be here. Because the claimant was a national of a Member State it would in many cases be impracticable and inappropriate to go to the length of obtaining a deportation order, which might well prove a serious embarrassment to the person in respect of whom it was made, but before the flow of benefits could be properly be turned off, he or she would need to be told officially to go home. If that was required of someone who had in fact had a legal right to remain or even a powerful non-legal reason to remain no doubt they would explain their position in response to the letter from the Secretary of State, and if that proved ineffective they could, as was really conceded before us, seek judicial review. So they would not be without a remedy. Although, for reasons I have explained, I would have preferred that the letters had not said that the Secretary of State "is not satisfied that you are lawfully resident here under EC law" no one has suggested that to be decisive, and for the reasons which I have attempted to explain I would allow these appeals. That means that in the case of Miss Remelien I would set aside the decision of the Commissioner and restore the decision of the SSAT. In the case of Miss Wolke I would set aside the decision of the judge and remit the matter to the social security appeal tribunal to determine her appeal in accordance with the decision of this court.

LORD JUSTICE PHILLIPS: The two appeals before the Court raise issues which are, in large measure, identical.

The Respondent to each appeal is a National of a member State of the European Communities, other than the United Kingdom.

Each Respondent was living at the material time in the United Kingdom.

Each Respondent claims to have been entitled, under the relevant Regulations, to receive income support. The Appellant ("the Department") challenges that entitlement. At the heart of each appeal is a narrow issue, the effect, if any, on the Respondent's entitlement to income support of a standard form letter written to the Respondent by the Home Office.

The statutory framework - income support

Income support is a non-contributory income-related benefit paid to individuals or families without an income from employment.

By section 124(1) of the Social Security Contributions and Benefits Act 1992, a person in Great Britain is entitled to income support if:

"(a) he is of or over the age of 18,

(b) he has no income or his income does not exceed "the applicable amount;

(c) he is not engaged in remunerative work and, if he is a member of a married or unmarried couple, the other member is not so engaged; and

(d) he is available for and actively seeking employment and is not receiving relevant education."

By section 124(4) of the same Act, where a person is entitled to income support, then if he has no income the amount shall be the applicable amount and if he has income, the amount shall be the difference between his income and the applicable amount. By section 135(1), the applicable amount in relation to any income-related benefit means the amount prescribed in relation to that benefit. By section 135(2), the power to prescribe applicable amounts includes a power to prescribe nil as an applicable amount.

Subject to an exception for "urgent cases", regulation 17(b) of Schedule 7 to the General Regulations prescribes nil as the applicable amount of income support for single claimants or lone parents who are "persons from abroad".

At all times relevant for the purposes of this case, regulation 21 of the General Regulations provided in part as follows:

"(3) In Schedule 7-

'person from abroad' means a person, who-

(a) has a limited leave as defined in section 33(1) of the Immigration Act 1971(a) (hereinafter referred to as 'the 1971 Act') to enter or remain in the United Kingdom which was given in accordance with any provision of the immigration rules (as defined in that section) which refers to there being, or to there needing to be, no recourse to public funds or to there being no charge on public funds during that limited leave ...

(b) having a limited leave (as defined in section 33(1) of the 1971 Act) to enter or remain in the United Kingdom, has remained without further leave under that Act beyond the time limited by the leave; or

(c) is the subject of a deportation order being an order under section 5(1) of the 1971 Act (deportation) requiring him to leave and prohibiting him from entering the United Kingdom; or

(d) is adjudged by the immigration authorities to be an illegal entrant (as defined in section 33(1) of the 1971 Act) who has not subsequently been given leave under that Act to enter or remain in the United Kingdom; or

(e) has been allowed temporary admission to the United Kingdom by virtue of paragraph 21 of Schedule 2 to the 1971 Act; or

(f) has been allowed temporary admission to the United Kingdom by the Secretary of State outside any provision of the 1971 Act; or

(g) has not had his immigration status determined by the Secretary of State;

(h) is a National of a member State and is required by the Secretary of State to leave the United Kingdom;"

Regulation 21(3)(h), which is of direct relevance, was inserted into the General Regulations, with effect from 12 April 1993, by regulation 4 of the Income Support (Amendment) Regulations 1993, SI 1993 No. 315. The explanatory note to those regulations states that they "amend the definition of a "person from Abroad" to include a National of a European Community State who has been required to leave the United Kingdom."

The letters

On the 8 December 1993 the Immigration and Nationality Department of the Home Office wrote to Miss Remelien, the Respondent to the first appeal, as follows:

"It has come to the notice of this Department that you have claimed income support since 11 June 1992 and that you are still continuing to claim.

I should like to explain that as a European Community National you are free to enter and reside in the United Kingdom in order to exercise Treaty rights conferred by the Treaty of Rome. These include the right to seek or take employment, or to reside here in a non-economic capacity provided that you have enough resources to avoid being a burden on public funds.

In view of the fact that you are in the United Kingdom in a non-economic capacity and that you have become a burden on public funds, the Secretary of State is not satisfied that you are lawfully resident here under EC law and you should now make arrangements to leave the United Kingdom."

On 10 April 1995 the same Department wrote to Miss Wolke, the Respondent to the second appeal, in identical terms, save that the letter ended with the following additional paragraph:

"I should add that if you do not leave the United Kingdom on a voluntary basis then, in the present circumstances of your case, we will not take steps to enforce your departure from the United Kingdom."

The Department contends that, in each case, the effect of the letter was to make the Respondent a person "required by the Secretary of State to leave the United Kingdom" within the meaning of General Regulation 21(3)(h), so as to reduce the Respondent's entitlement to income support to nil. Each Respondent joins issue with this contention.

The Facts

Miss Remelien

Miss Remelien is a French National, born on 22 March 1968. On 1 January 1990 her first child was born. She came to the United Kingdom with her baby and her partner, Mr. Larcha, in the same year; DSS records show that she began to receive UK child benefit in August 1990. On 27 April 1992 she had a second child. In
June 1992 she separated from her partner and made a successful application for income support. This was paid until she received the Home Office letter of
8 December 1993 to which I have referred. The Department then informed her that she was no longer entitled to income support. This decision Miss Remelien sought to challenge, both by judicial review proceedings and by appeal to the social security appeal tribunal ("SSAT"). The judicial review proceedings were ultimately discontinued, and I need say no more about them. On 28 June the SSAT confirmed the decision of the adjudication officer that Miss Remelien was not entitled to income support from 8 December 1993. From this decision Miss Remelien appealed to the social security Commissioner. On 14 August 1995 Commissioner Mesher allowed her appeal, upholding her entitlement to income support. The ground upon which he did so, was that the letter of 8 December did not, on its natural meaning, require Miss Remelien to leave the United Kingdom. The material part of his decision reads as follows:

"20. I note that the first non-obsolete meaning of 'require' given in the third edition of the Oxford Shorter English Dictionary is 'to demand (of any one) to do something'. The second meaning given is 'to ask for (some thing or person) authoritatively or imperatively, or as a right; to demand, claim, insist on having'. Without attempting to give any comprehensive or exhaustive definition of the words 'is required to leave' in paragraph (h), in my view their ordinary everyday meaning carries with it notions of compulsion or insistence such that the terms of the letter of 8 December 1993 did not 'require' the claimant to leave the United Kingdom. That approach is consistent with the identification of a certain central meaning. I accept that in some contexts 'require' may mean little more than 'ask', but I am quite satisfied that that expanded and loose meaning is not tenable in the context of paragraph (h). The letter of 8 December 1993 drew attention to the Secretary of State's not being satisfied that the claimant was lawfully resident in the United Kingdom. It may of course be said that a person who is not lawfully resident in the United Kingdom is under a legal obligation to leave, but the statement of the Secretary of State's view added nothing to any such obligation which already existed by operation of law. Then the letter said that the claimant should now make arrangements to leave the United Kingdom. In my view, that form of words simply falls short of the necessary degree of insistence or compulsion for it to be possible to say that on receipt of the letter the claimant was required to leave the United Kingdom. I would characterise the form of words as advice to the claimant to make her own arrangements to leave. That seems to me to fall well short of a requirement actually to leave."

It is against this decision that the Department now appeals.

Miss Wolke

Miss Wolke is a Dutch National. She is aged 23. She came to live in the United Kingdom from Holland in April 1994 with her then partner Michael Fitzpatrick and their son, Danny. Mr. Fitzpatrick is a British National. Initially they lived together in this country, but separated in November 1994. In that month Miss Wolke made an application for, and was granted, income support. Danny has always lived with her and her income support, therefore, included an allowance for him. Miss Wolke received no maintenance from Mr. Fitzpatrick for Danny.

On 12 April 1995 the adjudication officer reviewed the decision awarding Miss Wolke income support and decided she was no longer entitled, in the light of the letter of 10 April to which I have referred. On 19 July 1995 an Order was made by the District Judge at Coventry County Court whereby Miss Wolke undertook, on her lawyer's advice, not to remove the child, Danny, from England and Wales before 16 November 1995 for any period longer than seven days and it was ordered that Mr. Fitzpatrick should have contact with Danny every Wednesday and on alternate weekends. Mr. Fitzpatrick did not ask for her undertaking to be renewed when it expired on 16 November. However, the contact order which is said to necessitate her living in England remains in force and Miss Wolke has deposed that it is her wish to remain in the United Kingdom because she is anxious that Danny should maintain a relationship with his father.

Miss Wolke appealed against the decision of the adjudication officer to the SSAT, which decided to adjourn her case, pending the decision of this Court in respect of the Remelien appeal. Miss Wolke then moved for judicial review of the decision of the adjudication officer, and on 30 April 1996 Popplewell J gave judgment in her favour. This was just in time for the Department to join to their appeal in Remelien an appeal against the decision of Popplewell J.

I should add that before Popplewell J Miss Wolke also sought, without success, to attack the decision of the SSAT to adjourn her hearing. Popplewell J thought that there was no merit in her attack, but observed that the issue was academic.

On behalf of Miss Wolke, Mr. Howell QC, sought leave from this Court to serve a Respondents' Notice in order to renew the attack on the procedure adopted by the SSAT. While we were by no means convinced that the SSAT had acted appropriately in adjourning Miss Wolke's appeal, we agreed with Popplewell J that the point was academic and, accordingly, refused leave to pursue it.

On the principal issue, Popplewell J adopted a similar approach to that of Commissioner Mesher. He gave careful consideration to arguments advanced and authorities relied upon, which will be reflected by later passages in this judgment, but at the end of the day concluded that the issue turned on a simple question of construction. He observed that the additional paragraph in the letter received by Miss Wolke made her case a stronger case than that of Miss Remelien, and concluded his judgment as follows:

"As Lord Goddard once said 'a certain amount of common sense must be applied in construing a statute'. It is not, in my judgment, capable of elaborate argument. I simply pose the question that if you said to a jury 'is she now required to leave?' there could only be one answer, and that is 'no'. If you then pose the second question 'may she in the future be required to leave?' the answer would be 'yes'. If there was any ambiguity here I would adopt the approach of Commissioner Mesher, because this applicant has been deprived of a right. I would seek to construe any ambiguity in her favour, but I do not believe there is any. I believe it is a simple construction point to which common sense should be applied and I conclude, without any hesitation, that she is not now required to leave. Accordingly, I rule that the decision of the adjudication officer is incorrect."

Each of the Respondents succeeded on a narrow point of construction of the Home Office letter. Both Commissioner Mesher and Popplewell J held that the letter, on its natural meaning, did not require the Respondent to leave the United Kingdom. Neither Respondent has been content to rest her case upon this narrow ground. Each has urged before us a more fundamental contention. Mr. Howell QC for Miss Wolke put this as follows:

"A person who 'is a National of a member State and is required by the Secretary of State to leave the United Kingdom' is an individual who is such a National and who is under an obligation to leave the United Kingdom imposed by the Secretary of State in consequence of the exercise of the Secretary of State of a legal power vested in him which enables him to impose that obligation."

Mr. de Mello has adopted this submission on behalf of Miss Remelien.

In answer to this submission Mr. Plender QC, has submitted that the only way in which the Secretary of State could and can impose a legal obligation upon a person to leave the United Kingdom is by making a Deportation Order. Regulation 21(3)(c) of the General Regulations already made provision for a person subject to a Deportation Order. Sub-paragraph (h) must, according to basic principles of statutory interpretation, have been added in order to apply to requirements imposed by the Secretary of State in some manner other than the making of a Deportation Order.

Mr. Plender submitted that sub-paragraph (h) is satisfied whenever the Secretary of State lawfully communicates a requirement to leave the United Kingdom to a Community national. The Secretary of State can lawfully make such a requirement in the case of any Community national who is not present in the United Kingdom in the exercise of a right conferred by European law.

In order properly to evaluate these rival contentions it is necessary to consider the relevant statutory provisions relating to the immigrant status of Community nationals and, in particular, to trace the genesis of the phrase "required to leave" the United Kingdom.

Statutory framework - immigration

Prior to 1994 a Community national who was not British required leave to enter the United Kingdom pursuant to the Immigration Act 1971 which provided:

"3(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 this Act ...

(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of 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 the Act to have leave to enter ..."

At the material time the applicable Immigration Rules made pursuant to S.3(2) of the Act were HC251. These made the following relevant provisions in respect of Community nationals:

"69. A National of a Member State of the European Community is entitled to admission to take or seek employment, to set up in business, to become self-employed or otherwise to exercise the right of establishment or the rights relating to the provision or receipt of services as provided in Community law.

Provided he does not fall a charge on public funds, a person admitted in accordance with paragraph 68, 69 or 70 is free to remain for up to 6 months without further formality, but is required to apply for a residence permit if he wishes to stay longer (see paragraph 147).

A Community National who would be entitled to benefit from the Community law provisions relating to the free movement of labour if coming to work or to seek work will normally be admitted for 6 months without restriction as regards employment or occupation if the purpose of his visit does not fall within the terms of paragraph 69 or 70 provided that he satisfies the immigration officer that he is not likely to become a charge on public funds or otherwise liable to refusal to leave to enter under Part IX of these rules.

A person admitted in accordance with Part VI of these rules may normally remain in the United Kingdom for 6 months before applying for a 'Residence Permit for a national of a Member State of the EC'. Such a residence permit will be issued if the person:

(a) has entered employment; or

(b) has established himself in business or in self-employed occupation or otherwise in accordance with the provisions of Community law relating to the right of establishment and the rights relating to the provision and receipt of services; or

(c) is a member of the family (see paragraph 70) of a person to whom (a) or (b) above applies. Such a person will be issued with a residence permit if he is a Community National, or granted an extension of stay if he is not, in the same terms as those relating to the spouse or persons on whom he is dependent.

A person may be required to leave the United Kingdom, subject to appeal, if he falls a charge on public funds before issue of a first residence permit, or if, after 6 months from admission, he fails to meet the requirements of paragraph 147(a) or (b) above. After written warning, the duration of a residence permit may be curtailed, subject to appeal, if it is evident that the holder no longer satisfies the conditions at 147(a), (b) or (c) above. However, the duration of a residence permit issued to a worker will not be curtailed solely on the grounds that he is no longer in employment where this is because he is temporarily incapable of work as a result of illness or accident or because he is involuntarily unemployed.

A person who meets the requirements of paragraph 147(a), (b) or (c) may not be deported from the United Kingdom on the ground that removal is conducive to the public good except where this is justified on grounds of public policy, public security or public health."

At the time that Rule 150 was introduced the only mechanism whereby the Secretary of State could impose upon a Community national a legal requirement to leave the United Kingdom was by a Deportation Order. As to this, S.3(5) of the Immigration Act 1971 provides:

"(5) A person who is not [a British Citizen] shall be liable to deportation from the United Kingdom-

(a) 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; or

(b) if the Secretary of State deems his deportation to be conducive to the public good; or

(c) if another person to whose family he belongs is or has been ordered to be deported."

S. 5 provides:

"5. (1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force."

S. 15 grants, in defined circumstances, a right of appeal against a Deportation Order. As to deportation, HC251 provided as follows:

"159. Where it is proposed to deport a person because it is deemed that his expulsion will be conducive to the public good on other than security or political grounds there is a right of appeal, under section 15 of the Act, direct to the Immigration Appeal Tribunal.

Consideration of the merits

In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects.

Most of the cases in which deportation may be the appropriate course fall into two main categories. There are, first, those cases which come to notice following a conviction for a criminal offence and in which it is fitting that, because of his conduct, a person should no longer be allowed to remain here; and, second, those cases in which the person is here, or is remaining here, in defiance of the immigration control."

In 1987 the Secretary of State decided to deport a Belgian national called Antonissen who had been convicted on drug charges on the ground that this would be conducive to the public good, pursuant to s. 3(5)(b) of the 1971 Act. Antonissen appealed unsuccessfully to the Immigration Appeal Tribunal and then sought judicial review, contending that European law entitled him to remain in the United Kingdom in search of employment, so that he was immune from deportation. The Secretary of State relied upon the predecessor of Rule 150 HC251 and the Divisional Court referred the validity of this Rule to the European Court, posing the question:

"May the legislature provide that such a national may be required to leave the territory of that State (subject to appeal) if after six months from admission to that territory he has failed to enter employment?"

The European Court answered this question as follows:

"It is not contrary to the provisions of Community law governing the free movement of workers for the legislation of a Member State to provide that a National of another Member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged."

In 1994 significant changes were brought into effect in respect of the position under the 1971 Act of Community nationals. These included:

(i) S. 7 of the Immigration Act 1988, which provided:

"(1) A person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or any provision made under S.2(2) of the European Communities Act 1972" and

(ii) The Immigration (European Economic Area) Order 1994.

The primary object of this Order was to give effect to the European Economic Area Agreement signed at Oporto on 2 May 1992, as adjusted by the protocol signed at Brussels on 17 March 1993. At the same time, however, the Order served the purpose of complying with European Council Directives 90/364, 365 and 366 of
28 June 1990 and of providing machinery to implement s. 7 of the 1988 Act. The Order sets out categories of "qualified persons" who are entitled to reside in the United Kingdom. Provisions of this Order of particular materiality are:

"15.(1) A person shall not be entitled to be admitted to the United Kingdom by virtue of article 3 if his exclusion is justified on grounds of public policy, public security or public health; and, subject to article 20(2), such a person may appeal against the refusal of admission as if he were a person refused leave to enter and entitled to appeal by virtue of section 13(1) of the 1971 Act, but he may not appeal so long as he is in the United Kingdom.

(2) An EEA national and the family member of such a person may be removed from the United Kingdom-

(a) on his ceasing to be a qualified person or the family member of such a person (as the case may be); or

(b) if his removal is justified on the grounds of public policy, public security or public health,

but he may appeal against the decision to remove him-

(i) if he is a person to whom paragraph (a) applies, as if he were a person in respect of whom the Secretary of State had decided to make a deportation order and were entitled to appeal by virtue of section 15(1)(a) of the 1971 Act; or

(ii) if he is a person to whom paragraph (b) applies as if he were entitled to appeal as foresaid but subject to article 20(2) and section 15(7) of the 1971 Act.

(2) The following provisions of the 1971 Act shall have effect in relation to a person to whom the Order applies as they have effect in relation to a person who requires leave to enter or remain in the United Kingdom under that Act-

(a) section 5 (procedure for deportation);

(b) section 13(5) (exclusion conducive to the public good);

(c) section 14(3) (departure conducive to the public good);

(d) section 15(3) (deportation conducive to the public good);

(e) Schedule 2 (examination)."

In the light of this statutory history a number of factors have led me to conclude that the words "required to leave" in regulation 21(3)(h) should be so construed as to mean "placed under a requirement to leave pursuant to the Secretary of State's statutory powers". These are as follows:

The genesis of the phrase

The phrase "required to leave" in regulation 21(3)(h) echoes that phrase in the series of Immigration Rules placed before Parliament in the HC papers in relation to administration of immigration under the Immigration Act 1971. That rule itself echoes similar wording in the provisions of the 1971 Act dealing with the power to deport. I have no doubt that the phrase "required to leave" in the Immigration Rules, was referring to a practice of requiring Community nationals to leave pursuant to statutory powers and processes. This seems clear from the use of the phrase "subject to appeal". Mr. Plender told us that the genesis of the phrase "required to leave" was the deportation provisions of the 1971 Act, and so I would have inferred. Having regard to this genesis I think it logical to construe regulation 21(3)(h) as referring to the same type of 'requirement' - viz. a requirement imposed under statutory powers.

The context of 21(3)(h)

21(3)(h) is an addition to a list of categories of person deemed to be "persons from abroad". All the other categories refer to the immigration status of the person in question. I think it logical in this context to construe "required" in regulation 21(3)(h) as referring to a requirement affecting the immigration status of the person required.

The object of adding (h) to regulation 21(3)

When (h) was added to regulation 21(3) there had been in existence for some time the provision in the Immigration Rules adumbrating a practice of requiring Community nationals to leave who were not exercising Community rights. There was not in existence, so far as I am aware, a class of Community nationals who had been required to leave by the Secretary of State. The only way in which his statutory powers entitled him to impose a requirement to leave was by making a deportation order. He does not appear to have considered it appropriate to use this power in respect of Community nationals present in the United Kingdom who were not exercising Community rights. Antonissen was an exception, but the reason that he was deported was his criminal conviction for drug offences, not simply the fact that he had no right to remain under European law. It seems to me that (h) must have been added to regulation 21(3) in anticipation of the creation of a significant new class of person "required to leave" by the Secretary of State. While it is possible to suppose that this was anticipated as a result of change of practice under existing legislation, I agree with Mr. Howell that it is more likely that (h) was added in anticipation of legislative changes to the statutory power of the Secretary of State to require Community nationals to leave the jurisdiction. He drew our attention to the fact that changes were indeed made under the 1994 Order. Mr. Plender belittled this suggestion, pointing to the significant time interval between the addition, and indeed entry into force of (h) and the 1994 Order. I was not impressed by this point. Both s. 7 of the 1988 Act and the 1990 Council Directives on the right of residence had created the requirement for detailed statutory regulations dealing with the immigration status of Community nationals and these must have been in contemplation when (h) was added to regulation 21(3). For this reason, also, it seems to me logical to conclude that (h) was added in contemplation of the use by the Secretary of State of statutory powers when requiring Community nationals to leave.

Wider considerations

It has always been considered a serious matter for the Secretary of State to place a resident of the United Kingdom under a legal requirement to leave. A right of appeal is granted and the Regulations set out a wide list of relevant factors which have to be considered. Mr. Plender submits that parallel with his statutory powers, the Minister can properly adopt a practice of requiring persons to leave the United Kingdom without considering these factors, but on the simple ground that he is not satisfied that they enjoy a legal right to remain here in the exercise of their Community rights. While, says Mr. Plender, such a requirement is a demand that the Minister intends to be complied with, it neither imposes nor reflects any legal obligation on the person required to leave and is not backed by any legal sanction. Nor does it carry any right of appeal. What it does do is to deprive the recipient of any right to income support. If income support is withdrawn, the person affected can then challenge the propriety of the Secretary of State's requirement to leave in appeal proceedings before the social security appeals tribunal. Equally the propriety of the Secretary of State's requirement to leave can be challenged by judicial review proceedings.

Where the Secretary of State is given statutory powers to require persons to leave the United Kingdom which are subject to statutory safeguards, including a right of appeal, I do not find satisfactory the concept of a parallel practice of requiring persons to leave in circumstances where, if the Minister were contemplating the exercise of his statutory powers, he might conclude that the relevant considerations rendered the exercise of those powers inappropriate. Nor do I find it easy to envisage the precise grounds on which it is suggested that a person would be entitled to challenge before the SSAT or in judicial review proceedings this extra-statutory "requirement to leave" which imposes no legal obligation. I cannot accept that regulation 21(3)(h), on its true construction, refers to a requirement to leave of this nature.

Counter-arguments

Surplusage

I have already referred to Mr. Plender's argument that, as regulation 21(3)(c) already makes provision for that subject to a Deportation Order, 21(3)(h) must have been intended to relate to a requirement to leave the United Kingdom that fell short of the imposition of a legal requirement to leave. That argument is founded on the premise that the draftsman of (h) assumed that the only way in which the Secretary of State was, or would be, able to require a Community national to leave the United Kingdom was by making a Deportation Order. In this context, Mr. Plender contended that when a power to remove Community nationals was finally introduced by the Immigration (European Economic Area) Order 1994, the mechanism provided for the exercise of this power was the making of a Deportation Order. Mr. Howell challenged this contention, arguing that while Article 20(2) of the Order made the deportation procedure applicable, a person subject to removal under Article 15(2) would not be subject to a Deportation Order eo nomine. Some force is given to this argument by the provision in Article 15(2) to the right of appeal "as if he were a person in respect of whom the Secretary of State had decided to make a deportation order" and, not without hesitation, I have reached the conclusion that a person subject to removal under Article 15(2) of the 1994 Order does not constitute a person who is the "subject of a deportation order being an order under Section 5(1) of the 1971 Act" as provided for by regulation 21(3)(c).

I do not consider that the draftsman of regulation 21(3)(h) must have proceeded on the basis that any legal requirement for a Community national to leave the United Kingdom would be effected by a Deportation Order under s. 5(1) of the 1971 Act. For this reason I am not persuaded that it is correct to approach the construction of regulation 21(3)(h) on the premise that the draftsman envisaged that any Community national made subject by the Secretary of State to a legal requirement to leave the United Kingdom would necessarily fall within regulation 21(3)(c).

Vitale

Mr. Plender relied upon observations made by Judge J as to the object of regulation 21(3)(h) in R v. Secretary of State for the Home Department ex parte Vitale and another [1995] 3 CMLR 605. That decision also related to the effect of standard form letters such as those under consideration in the present case. The two applicants for judicial review had had their income support stopped as a consequence of receiving standard form letters. They appear to have accepted that the letters placed them in the category of persons "required to leave" under regulation 21(3)(h) but challenged the Secretary of State's entitlement to require them to leave on the ground that Article 8A EC gave them a right to reside in the United Kingdom. All concerned in the case appear to have proceeded on the premise that the right to Income Support was only enjoyed by those "lawfully" within the United Kingdom and that the significance of the standard form letter was that it constituted a ruling by the Secretary of State that the recipient was not lawfully present. The principal issue was whether or not the applicants enjoyed a Community law right to reside in the United Kingdom so that the Secretary of State had erred in law in concluding that they were not lawfully present. Thus, at p.612 the Judge observed:

"The decision to discontinue income support was based on the finding of the Immigration and Nationality Department that Mr. Vitale was no longer lawfully resident in the United Kingdom."

At p. 621 he held:

"... at the time when the letters were received they were no longer present in the United Kingdom while exercising Community rights. No other basis for remaining here was advanced. Their presence ceased to be lawful ... If they were not lawfully present then they were not entitled to the benefit of income support ...

These letters are declaratory of the fact that each applicant present in the United Kingdom is no longer lawfully resident here. Each was therefore asked or required to make arrangements to leave. Ignoring for present purposes the question of rights of appeal already dealt with earlier in this judgment, this approach is entirely consistent with the powers available to the Secretary of State at the time when the letters were written. The mere fact that he may have been bereft of any direct sanctions or authority to enforce compliance with his request did not invalidate the request. More significantly the letters had the direct consequence that income support for each applicant came to an end.

Under regulation 21(3)(h) of the Income Support Regulations 1987 the rate of support payable to a national of a Member State of the European Union who is 'required by the Secretary of State to leave the United Kingdom' will be 'nil'. Without trespassing into areas which have yet to be decided by the social security appeal tribunal it is clear that the regulations are designed to avoid payment of income support to a Community national who is not lawfully present in the United Kingdom. The amendments brought into force from 1 August 1994 are not relevant. The proper operation of the 1987 Income Support Regulations depended on notification by the Secretary of State in an appropriate case that the particular individual was not entitled to remain in the United Kingdom."

Judge J's decision was upheld by the Court of Appeal (transcript 19 January 1996), but again the assumption that the standard form letters constituted requirements to leave under regulation 21(3)(h) was not challenged.

The status of a Community national who has no Community right to reside in the United Kingdom and who has received a standard form letter was further considered by the Court of Appeal in Castelli and Tristan-Garcia v. Westminster City Council (transcript 21 February 1996). The two applicants were seeking judicial review of the refusal of temporary accommodation to which they claimed to be entitled under the Housing Act 1985. The refusal had been made on the ground that no duty was owed to them under that Act because they were not lawfully present in the United Kingdom. The authorities establish that no duty is owed under the Housing Act to a person whose presence in the United Kingdom is illegal inasmuch as it constitutes an offence under s. 24 of the Immigration Act 1971. Neither applicant fell into that category. Each was a European national who had entered pursuant to Community rights but who had ceased to enjoy any right to reside in the United Kingdom under Community law. A standard form letter, with the final paragraph, had been written to Mr. Garcia. No such letter had been written to Mr. Castelli. The issue was whether, for the purpose of the Housing Act 1985, the applicants constituted persons to whom no duty was owed because their presence in the United Kingdom was unlawful. All three members of the Court held that the applicants' immigrant status was not such as to disentitle them to rights under that Act.

Evans LJ reached the following conclusion in respect of the status of Community nationals in the position of Mr. Castelli (transcript p.15):

"The Immigration Acts and the regulations made under them are intended to regulate the status of non-British European nationals in accordance with this country's treaty obligations. They provide for the necessary exemptions in accordance with Community law and they create machinery which enables cases where the right to exemption comes to an end to be brought within the statutory procedures, including appeals, which are required to safeguard the rights of individuals when disputes arise. It is not necessary, in my judgment, to regard the individual as "not lawfully here" during the period when these procedures are or could be operated. But it is sufficient for present purposes to hold, as I would hold, that a European national who has, or may have, ceased to be a qualified person in fact, but who has not been given and overstayed a limited leave to remain and has not been informed that the Secretary of State has decided that he should be removed, does not belong to a category of persons 'not lawfully here' who are not to be regarded as 'persons' for the purposes of sections 62/3 of the Housing Act.

There is no obligation on such persons under the immigration laws to apply for leave to remain, limited or otherwise, and they cannot properly be regarded, in my judgment, as being in breach of the immigration laws by reason of their failure to do so."

He also expressed a view about the effect of the standard form letter written to Mr. Garcia, which he described as a "somewhat elliptical communication":

"If Mr. McDonnell is correct and Mr. Tristan-Garcia requires 'permission' to remain in this country, then it is clear in my view that permission was given, albeit in these vague and ambiguous terms. Although advised to leave, he is told that he will not be compelled to do so. It is the reaction of a reluctant host 'I would rather that you left, but I will not force you to go'. Far from informing him that the Secretary of State had decided that he should be removed (1994 Order, paragraph 15(2)) or that he would be deported under the immigration laws, the letter says that the Secretary of State has made a contrary decision. Unless circumstances were to change, he would not be removed." (transcript p. 14)

Swinton Thomas LJ gave his reasons for deciding in the applicants' favour in the following passage (transcript pp.19 to 21):

"Both appellants entered this Country lawfully and remained here lawfully. In each of their cases it was open to the Secretary of State, as conceded by Mr. Blake QC, to bring that state of affairs to an end but he did not to do: in Tristan-Garcia's case deliberately as evidenced by the letter of the 4 April 1995.

The appellants had no right of residence in the Country, and no right to remain here indefinitely. It does not follow that they were here unlawfully and that no duty was owed to them under the Act. They were not obliged to seek leave to enter this Country and, more relevantly, were not obliged to seek leave to remain here even though they ceased to be qualified persons within the meaning of the Immigration (European Economic Area) Order 1994. Once they ceased to be qualified persons then the Home Secretary could require them to leave. I do not accept Mr. McDonnell's submission that the provisions of section 1(2) of the Immigration Act, 1971, render the presence of these appellants in the Country unlawful. I accept Mr. Blake's submissions that section 1(2) defines the persons who are subject to immigration control, and the Act then proceeds to lay down the steps which can be taken to impose those controls. Plainly, the Act does not impose any duty on those who entered lawfully and without restriction and with a right to remain here as a qualified person to obtain leave to stay after their period of exemption from control. At that point the provisions of Article 20(1) of the 1994 Order may take effect. Once the period of exemption has expired the Secretary of State may then require a person to leave this Country, and if he fails to do so, then he may be removed under Article 15(2) of the Order. This provides a proper machinery for the national of an EEA State to be notified that he is required to leave and to appeal against that decision.

In my judgment, a person in the position of these appellants does not become a person unlawfully present in this Country or not lawfully present in this Country until he is informed by the Secretary of State that he is required to leave, or some other appropriate and lawful step is taken to remove him.

I agree with Staughton LJ that the standard Home Office letter (sent to Tristan-Garcia on 4 April 1995) does not give the recipient permission to remain in this Country. Equally the receipt of the letter does not make the recipient unlawfully here."

Staughton LJ held that the benefit of the Housing Act was only denied to those whose presence in the United Kingdom constituted a criminal offence, and that the applicants did not fall into this category. He added (transcript p. 31):

"I am afraid that I cannot agree with the conclusion of Evans LJ that Mr. Tristan-Garcia has been given permission to stay, even by the ambiguous terms of the standard letter."

This decision reinforces my conclusion that the approach of Judge J to the purpose and manner of operation of regulation 21(3)(h) was not correct. To describe a national of the Community, who has entered the Country lawfully but who cannot demonstrate an enforceable right to remain here under Community law as being "not lawfully resident" here, is misleading. Such a person is not acting in a manner that is contrary to law but is simply unable to demonstrate any positive right to be here.

When Judge J stated at p. 622 "it is clear that the regulations are designed to avoid payment of income support to a Community national who is not lawfully present in the United Kingdom" he meant, by the words emphasised, a Community national who does not enjoy an enforceable right to remain in the United Kingdom. I can see no basis for concluding that regulation 21(3)(h) was designed to exclude from entitlement to income support all Community nationals within the United Kingdom who are not here in the exercise of Community rights. Had that been the intention, I see no reason why the legislature should not so have provided in clear language. The wording of regulation 21(3)(h) does not achieve that end. On the contrary, it seems to me that regulation 21(3)(h), on its natural meaning, excludes from entitlement to income support Community nationals who are no longer lawfully here because they have been placed under a legal requirement to leave by the Secretary of State. It is common ground that the standard form letter does not have this effect, and the majority of the Court of Appeal in Castelli expressly so held.

This brings me to the narrow question of whether, on its true construction, the standard form letter even purports to impose a requirement to leave the United Kingdom.

The meaning of the standard form letter

The precise wording of the standard form letter has been raised from time to time but, as I understand it, in an attempt to clarify the nature and effect of the letter, not to alter these.

The Home Office has been at pains to make it clear that the letter is not intended to give rise to a legal obligation to leave the United Kingdom, nor to give rise to a right of appeal, nor to indicate an intention on the part of the Home Office to take further steps to compel the recipient to leave if he or she does not do so on a voluntary basis.

Thus in his decision at p. 7, Commissioner Mesher referred to a letter from the Home Office to the legal adviser of a recipient of a standard form letter, which stated:

"I must advise you that although we have advised your client that she should leave this Country, this cannot be considered as a 'requirement' to leave since we have no intention of enforcing her departure. As a result, no right of appeal is accorded in cases such as this."

It seems to me that the additional paragraph to the standard form letter was designed to convey the same message.

In Castelli Evans LJ described this version of the letter as 'elliptical' and its terms as 'vague and ambiguous', but read it as granting permission to stay in the United Kingdom rather than a requirement to leave. Swinton Thomas LJ did not go this far, but did not consider that the letter amounted to information from the Secretary of State that the recipient was required to leave. Staughton LJ did not agree that the letter constituted a permission to stay, but he also described its terms as ambiguous.

In Vitale Judge J described the standard letter variously. At p. 612 he referred to it as communicating "advice" that the recipient should leave the United Kingdom. At p. 621 he spoke of the recipients being "asked or required" to make arrangements to leave. At p. 622 he referred to the letters as containing a "request". All of these observations are consonant with the conclusions of Commissioner Mesher and Popplewell J that the respective letters that they had to consider did not, on their natural meaning, require the recipient to leave. I share their conclusions.

Mr. Plender accepted that to constitute a requirement to leave the letter would have to convey to the recipient that the Secretary of State was making a demand to leave the United Kingdom with which he intended the recipient to comply. I do not consider that the version of the letter received by Miss Remelien convey this meaning and I reach the same conclusion a fortiori in the case of Miss Wolke's version, with its additional paragraph. I can put the matter no better than Commissioner Mesher at p. 8:

"that form of words simply falls short of the necessary degree of insistence or compulsion for it to be possible to say that on receipt of the letter the claimant was required to leave the United Kingdom."

In conclusion, I would hold that neither Respondent was a person required to leave the United Kingdom under regulation 21(3)(h)-(a) because the Secretary of State had not exercised his legal powers to impose upon her a requirement to leave and (b) because he had not, by the standard letter, purported to require her to leave. For these reasons I would dismiss these appeals.

THE PRESIDENT: The facts giving rise to these two appeals are fully stated in the judgments of Kennedy LJ and Phillips LJ which I have been able to read in draft. In each case the Respondent is a national of a Member State of the European Communities other than the United Kingdom. Each Respondent was living in the United Kingdom at the material time.

Miss Remelien received income support from 11 June 1992 until
8 December 1993 and Miss Wolke from 10 November 1994 until 10 April 1995.

In each case in due course the Respondent received an official letter from the Immigration and Nationality Department of the Home Office. The material part of the letter written to Miss Wolke stated:

"In view of the fact that you are in the United Kingdom in a non-economic capacity and that you have become a burden on Public funds, the Secretary of State is not satisfied that you are lawfully resident here under European Community Law and you should now make arrangements to leave the United Kingdom. I should add that if you do not leave the United Kingdom on a voluntary basis then, in the present circumstances of your case, we will not take steps to enforce your departure from the United Kingdom."

The letter received by Miss Remelien did not however include the last sentence of the letter which was written to Miss Wolke.

The relevant issue in both appeals is whether having regard to the terms of the letters, the Respondents had been "required by the Secretary of State to leave the United Kingdom" within the meaning of regulation 21(3)(h) of the Income Support (General) Regulations 1987.

In the case of Miss Remelien the Commissioner held that "the form of words simply falls short of the necessary degree of insistence of compulsion for it to be possible to say that on receipt of the letter the claimant was required to leave the United Kingdom". In the case of Miss Wolke, Popplewell J described the question of construction as "essentially a simple jury point" and he held that on receipt of her letter Miss Wolke was "not now required to leave".

In each case it is clear that at the material time neither Respondent had an enforceable Community right to remain living in the United Kingdom, although neither was in breach of UK Immigration Rules which would give rise to a liability to deportation.

Regulation 21(3)(h) was added to the Income Support (General) Regulations 1987 with effect from 12 April 1993. Both the Commissioner in Miss Remelien's case and Popplewell J in Miss Wolke's case considered that the phrase "required by the Secretary of State to leave" meant something different from and envisaged something less than a deportation situation which was specifically provided for by regulation 21(3)(c).

However, neither the Commissioner nor Popplewell J was able to indicate a position short of a deportation situation which would be covered by a "requirement".

In my judgment the regulation should be interpreted in the context of income support. The Secretary of State's letter clearly does not raise the immediate prospect of deportation which might have serious and unintended consequences. It is nevertheless an authoritative letter which conveys a serious instruction. The result of non-compliance is the cessation of income support although not a liability to be deported.

I agree with the analysis and conclusion of Kennedy LJ and would allow both appeals.

Order: Appeal allowed with costs not to be enforced without the leave of the court; legal aid taxation of respondents' costs; application for leave to appeal to the House of Lords refused.

The claimants appealed to the House of Lords. The decision of the House of Lords follows.

DECISION OF THE HOUSE OF LORDS

Mr. R. De Mello and Mr. L. Daniels (instructed by Messrs. Powell & Co., Solicitors, SE18 6ED) appeared on behalf of the Appellant, Remilien.

Mr. J. Howell QC and Mr. S. Wright (instructed by the Child Poverty Action Group, London, EC1 9PY) appeared on behalf of the Appellant, Wolke.

Mr. R. Plender QC and Miss G. Clark (instructed by the Solicitor to the Departments of Health and Social Security) appeared on behalf of the Respondents.

LORD BROWNE-WILKINSON

My Lords,

For the reasons given in the speech of my noble and learned friend, Lord Hoffmann, I would allow these appeals and restore the orders of Popplewell J and Mr. Commissioner Mesher.

LORD SLYNN OF HADLEY

My Lords,

Nathalie Remelien, a French national, came to this country in 1989 or 1990 from Martinique to look for work. There seems to be some doubt as to precisely when she came and when she first received social security benefits in the United Kingdom (neither of which date is directly relevant) but it is accepted that she received income support from June 1992 until 8 December 1993 for herself and her two children following separation from her partner. By letter dated 8 December 1993 she was told that although she was entitled to enter and remain in the United Kingdom in order to exercise Treaty rights conferred by the Treaty of Rome, "in view of the fact that you are in the United Kingdom in a non-economic capacity and that you will become a burden on public funds, the Secretary of State is not satisfied that you are lawfully resident here under EC law and you should now make arrangements to leave the United Kingdom." An adjudication officer of the Department of Social Security decided that she was not any longer entitled to income support by reason of regulation 21(3)(h) of the Income Support (General) Regulations 1987, SI 1987 No. 1967. The details of subsequent proceedings are set out in the judgment of Kennedy LJ in the Court of Appeal and I do not repeat them. It is sufficient to say that the Home Secretary in 1994 in response to a further application by this appellant said that she had not produced evidence that she had found employment or that she was actively seeking work with a reasonable chance of obtaining it. She failed in her challenge to the removal of income support before the adjudication officer but succeeded on appeal to the social security tribunal and before Popplewell J on an application for judicial review; in the Court of Appeal the majority decided in favour of the Secretary of State.

Mery Wolke, a Dutch national, apparently came to the United Kingdom in
April 1994 with her partner, a British national, and their son born in May 1993. She now contends that she came here as a person who was financially self sufficient though there are apparently no records to show on what basis she claimed to come as a national of a Member State of the European Community (or of the European Economic Area following the extension in 1992 of the rights of free movement to nationals of States of the European Economic Area). She separated from her partner in November 1994 and thereafter claimed and was paid income support for herself and her son. On 10 April 1995 the Home Secretary sent to her a letter similar to that sent to Nathalie Remelien save that she was referred to as an EEA national and that the letter concluded "I should add that if you do not leave the United Kingdom on a voluntary basis then, in the present circumstances of your case, we will not take steps to enforce your departure from the United Kingdom."

The appeal turns on the proper interpretation of the words "is required by the Secretary of State to leave the United Kingdom" in regulation 21(3)(h) of the 1987 Regulations and on the question whether the relevant letters constituted such a requirement. The word "required" has different shades of meaning and compulsion.

Your Lordships have been given dictionary definitions and examples to show that the word may or may not connote a legal power to enforce what is "required." It plainly depends on the context in which the word is used. It is for that reason necessary to consider the scheme of the legislation providing for income support and the immigration legislation relative to the appellants' presence in the United Kingdom.

The social security legislation

"Income Support" is one of the income-related benefits provided for in part VII of the Social Security Contributions and Benefits Act 1992 for which prescribed schemes were to be made by regulation in accordance with section 175 of the Act. Broadly, and subject to exceptions in prescribed circumstances, it is available for a person in Great Britain over the age of 18 who has no income or an income which does not exceed the applicable amount, who is not engaged in remunerative work and who is available for and actively seeking employment but not receiving relevant education. The amount payable is the applicable amount fixed by the Secretary of State (which may be nil) less any income.

The applicable amount in certain special cases is to be the weekly amount prescribed in column 2 of Schedule 7 to the Income Support (General) Regulations 1987, SI 1987 No. 1967, as amended. One of those special cases is "Persons from abroad" in paragraph 17 (other than one of the defined "urgent cases"). For that category the amount prescribed, both for a single claimant and for a lone parent who is a person from abroad, is "nil." "Person from abroad" for the purposes of Schedule 7 is defined in regulation 21(3). It includes e.g. an illegal entrant within the meaning of section 33(1) of the Immigration Act 1971 and who has not subsequently been given leave under that Act to enter or remain within the United Kingdom. An illegal entrant is defined in section 33(1) as including a person unlawfully entering or seeking to enter in breach of "a deportation order or of the immigration laws and included also a person who has entered." Two sub-paragraphs of regulation 21(3) are of particular relevance for the present case. Thus "person from abroad" includes a person who

"(c) is the subject of a deportation order being an order under section 5(1) of the 1971 Act (Deportation) requiring him to leave and prohibiting him from entering the United Kingdom; or (h) is a national of a Member State and is required by the Secretary of State to leave the United Kingdom."

The person referred to in sub-paragraph (c) was included in the regulation as originally made. Sub-paragraph (h) was added by regulation 4 of The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1993, SI 1993 No. 315, with effect from 4 April 1993.

The immigration legislation

Prior to the United Kingdom's accession to the European Community a national of one of the Member States, like a national of other states not having a right of abode in the United Kingdom, required leave to enter and remain in the United Kingdom and was subject to such regulation and control as was imposed by the Immigration Act 1971, section 1. Such leave might be of limited or of indefinite duration and subject to conditions restricting employment: section 3. By section 3(2) of that Act, the Secretary of State was empowered to lay before Parliament "statements of 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." Either House of Parliament before which the statement was laid might disapprove those statements.

A person in breach of a condition of leave or staying beyond the time limited was made liable to a deportation order as was a person who is not a British citizen "if the Secretary of State deems his deportation to be conducive to the public good:" section 3(5)(b). A person convicted of an offence punishable with imprisonment whom a court recommended to be deported could also be deported. The procedure on such a deportation is laid down in sections 5 et seq. of the Act. Section 15 gives leave to appeal against a decision of the Secretary of State to make a deportation order against a person under section 3(5) of the Act.

Following accession European Community law gave certain rights of movement. Thus article 48 of the Treaty of Rome gave to nationals of Member States the right to enter and stay in the territory of other Member States for the purpose of accepting offers of employment actually made. Subsequent Council Directives gave rights to reside in other Member States to students (90/364 EEC), to retired persons (90/365 EEC), and to those who were financially self-sufficient (90/365 EEC).

The United Kingdom in an attempt to comply with the EC law adopted the practice of giving leave for a period of normally six months without any condition being imposed restricting employment. In Reg. v. Pieck [1981] QB 571 the European Court held that any formality for the purpose of granting leave, coupled with a passport or an identity card check at the frontier, was contrary to article 3(2) of Directive 68/360 EEC which prohibited Member States from demanding an entry visa or equivalent requirement from community workers. It was further held that a general resident's permit could not be required since the right to enter and reside in the territory of another Member State for the purposes intended by the Treaty is a right conferred directly by the Treaty.

Subsequently by paragraphs 140 and 143 of the Statement of Changes in Immigration Rules (HC 169) made by the Secretary of State under section 3(2) of the Act of 1971 and which came into force, having been laid before Parliament, on
9 February 1983, it was provided that a Community national could stay here for six months before applying for a resident's permit and that such a permit would be issued if that person had entered employment. A person could, however, be required to leave the United Kingdom, subject to appeal, if he fell a charge on public funds before issue of a first resident's permit or if he had not entered employment by the end of the period.

The legality of this provision as a matter of community law was considered in Reg. v. Immigration Appeal Tribunal, Ex parte Antonissen (Case 292/89) [1991] ECR I-745. The Secretary of State had ordered that A, who had been convicted of drug offences, be deported pursuant to section 3(5)(b) of the Immigration Act 1971, the Secretary of State having deemed his deportation to be conducive to the public good.

On the basis of paragraph 143 of HC 169 the Immigration Appeals Tribunal ruled that he could no longer be treated as a community worker, and rely on Council Directive (64/221/EEC) of 25 February 1964 (relative to the movement and residence of foreign nationals restricted on grounds of public policy, public security or public health,) since he had not entered employment by the end of the six month period.

A. challenged this ruling before the Divisional Court which asked the European Court whether for the purpose of determining whether a national of a Member State is to be treated as a "worker" when seeking employment so as to be immune from deportation (save in accordance with Council Directive 64/221 EEC) "the legislature of the second Member State may provide that such a national may be required to leave the territory of that State (subject to appeal) if after six months from admission to that territory he has failed to enter employment?" The European Court held that a person seeking employment was to be regarded as a "worker" but that it was not contrary to community law:

"for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory (subject to appeal) if he has not found employment there after six months, unless the person concerned provided evidence that he is continuing to seek employment and that he has genuine chances of being engaged."

The wording of paragraph 143 to which reference has been made was repeated in paragraph 150 of the subsequent Statement of Changes (HC 251) laid before Parliament under section 3(2) of the Act of 1971 on 23 March 1990.

Section 7 of the Immigration Act 1988 provided that a person did not require leave to enter or remain in the United Kingdom if he was entitled to do so by virtue of an enforceable community right or of any provision made under section 2(2) of the European Communities Act 1972. The Immigration (European Economic Area) Order 1994, SI 1994 No. 1895, made pursuant to section 2(2) of the Act of 1972, which came into force on 20 July 1994 provided for a right of admission to EEA nationals and for a right of residence for qualified persons without any requirement of leave to remain, qualified persons including under article 6(1)(a) "a worker" and (f) "a self-sufficient person."

The Statement of Changes in the Immigration Rules adopted in 1994 did not apply to EEA nationals entitled to enter by virtue of that order.

By article 15(2) of the 1994 Order an EEA national and a family member of such a person might be removed from the United Kingdom under paragraph (a) on his ceasing to be a qualified person, or under paragraph (b) if his removal is justified on grounds of public policy, public security or public health.

The person might appeal against the decision to remove him:

"(i) if he is a person to whom paragraph (a) applies, as if he were a person in respect of whom the Secretary of State had decided to make a deportation order and were entitled to appeal by virtue of section 15(1)(a) of the Act of 1971; or

(ii) if he is a person to whom paragraph (b) applies as if he were entitled to appeal as aforesaid but subject to article 20(2) and section 15(7) of the Act of 1971."

Against the background of this legislation it is accepted and is clear that when the appellants came into the United Kingdom, if they were genuinely looking for work or self-sufficient, they did not need leave under the Act of 1971. They entered by a community law right. They were not "illegal entrants" unlawfully entering, or having entered, in breach of the immigration laws within the meaning of sections 33 of the Act. It is also clear and accepted that until 1994 the only method available to the Executive to remove them from the United Kingdom was by means of a deportation order under section 3(5)(c) of the Act of 1971 if the Secretary of State deemed their deportation to be conducive to the public good.

From 1994 if they ceased to be "a worker" or "a self-sufficient person" they could be removed from the United Kingdom. I do not read the exercise of that power created by article 15 of the 1994 order as amounting to or requiring the making of a deportation order. The words of article 15(2)(i) do no more than give a right to the person, who ceases to be a worker, a right to appeal "as if he were someone in respect of whom the Secretary of State had decided to make a deportation order." He thus has a right of appeal under section 15(1)(a) of the Act of 1971. They do not make him a person in respect of whom a deportation order has been made.

Does the fact that at the time the two letters were written there was no self-standing power to enforce a requirement to leave the United Kingdom, or no power other than in the situation where the Secretary of State thought that deportation was necessary for the public good, necessarily mean that there was no real content to the phrase "required to leave" in regulation 21(3)(h) of the 1987 Regulations until the 1994 Order was made? In my view it does not.

It seems to me that two matters are of particular relevance in this context in construing this phrase. The first is the origin and subsequent use of the phrase; the second is the purpose for which it was used in the social security legislation.

The phrase "may be required to leave the United Kingdom, subject to appeal," if the person fails to get work in six months, was to be found, as has been shown, in paragraph 143 of the Statement of Changes in the Immigration Rules (HC 169). It was in force as paragraph 150 of the Statement HC 251 of 1990 at the time the amendment was made to the 1987 regulations by the addition of sub-paragraph (h) to regulation 21(3) of the 1987 General Regulations. That paragraph was in a section of the Statement dealing with European Community nationals: it was introduced as a method of control of such nationals who sought to stay outside the limits which Community Law allowed and as a response to the decision in Reg. v. Pieck [1981] QB 571. No one suggests that as a matter of municipal law these Statements were not validly made under, and within the Secretary of State's express powers in, section 3(2) of the Act of 1971. As a matter of Community Law the provision was upheld by the European Court in Reg. v. Immigration Appeal Tribunal, Ex parte Antonissen [1991] ECR 1-745 subject to the qualification that a person genuinely seeking work with a real chance of getting it should not be required to go after six months.

Reliance has been placed on the answer given by the court in Ex parte Antonissen, at p. 780:

"it is not contrary to the provisions of Community Law ... for the legislation of a Member State to provide that a national of another Member State ... may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months ... "

It is argued that the 1994 order was simply giving effect to a requirement expressed in the Antonissen judgment since there had to be further legislation. The answer of the court, however, closely follows the language of the Divisional Court's question "may the legislature of the second Member State provide that a person may be required to leave the territory of that State (subject to appeal)?" It is not possible to read the question as based on the assumption that such legislation would be introduced.

Nor although the word "legislation" was used by the court, and there was no primary legislation in existence expressly so providing, it is not possible to read the judgment as based on a ruling that future primary legislation was required for such a provision to be made or on an assumption that such legislation would be introduced. On the contrary, however inaccurately expressed, the European Court was dealing with the position as it then was. In paragraph 21 of the judgment the court refers to the time period prescribed "such as that laid down in the national legislation at issue in the main proceedings." That national legislation, as appears from paragraph 5 of the judgment, was "paragraph 143 of the Statement of Changes in Immigration Rules (HC 169) adopted pursuant to the Act of 1971." It was for the purposes of the judgment regarded as sufficient that the requirement to leave after a period was laid down by the Secretary of State under statutory powers which in themselves were subject to the negative resolution procedure of Parliament.

It seems to me that in the regulation, pursuant to that Statement, of Community Law rights of entry and residence the Secretary of State could lawfully call on a person, who no longer had a Community Law right to remain, to leave the United Kingdom even if Parliament had not given him powers to enforce his requirement other than when he deemed deportation to be conducive to the public good.

A person who is a national of another Member State and who is required by the Secretary of State to leave the United Kingdom, within the meaning of regulation 21(3)(h) of the 1987 Income Support (General) Regulations is, or at any rate includes, a person whom the Secretary of State has required to leave pursuant to paragraph 143 of HC 169.

Who shall receive income support and in what amount involves the making of social policy and the Secretary of State is empowered to make regulations for that purpose pursuant to section 175 of the Act of 1992. At the relevant time income support did not depend on the possession of British nationality or on domicile or even on habitual residence (as in the latter case it was made to do later). It was available to persons "in Great Britain." It was, however, clearly intended that some persons in Great Britain, not having a right of abode, should not have that support even if those persons did not have an income equal to the applicable amount. These persons are listed in the category of "persons from abroad." They include persons having limited leave who have stayed beyond the limit, those who are illegal entrants within the meaning of section 33 of the Act of 1971 or who are subject to a deportation order. But the exclusion from income support applies also to categories of persons whose presence in the United Kingdom would not seem to be ex facie unlawful. Thus in (e) and (f) persons granted temporary admission are excluded; as are persons whose immigration status has not been determined by the Secretary of State. However much one feels sympathy in individual cases for mothers with very young children, it cannot be said that, in the light of the other categories excluded from income support, to exclude persons who have exhausted their Community Law rights as workers (by not getting work) or as self-sufficient persons (by falling on public funds) in the United Kingdom is in principle shocking or unreasonable.

This is particularly so if it is remembered that persons who are seeking work (as opposed to persons who are workers) do not have the right to social security payments available to nationals even during a period before the six months expires when they are entitled to be here. In Centre public d'aide sociale de Courcelles v. Lebon [1987] ECR 2811 the European Court held that a right to equal treatment with regard to social and tax advantages accorded by article 7(2) of Regulation No. 1612/68 EEC applied only to workers and not to nationals of Member States who move in search of employment. The latter were entitled only to equal treatment in regard to access to employment in accordance with article 48 of the Treaty and articles 2 and 5 of Regulation No. 1612/68 EEC.

If regulation 21(3)(h) is seen in isolation it might seem strange that the applicants' entitlement to a social security payment should depend on the decision of the Home Secretary rather than of the Secretary of State for Social Services. Seen in the context of the definition of "persons from abroad" as a whole it does not seem to me at all strange. All the categories from (a) to (h) are dependant on a decision of the Home Secretary since they are linked to a right or a grant of permission of someone to come or to stay here. The Home Secretary's "requirement to leave" is the trigger which brings into action paragraph 17 of Schedule 7 to the 1987 regulations which the Department of Social Security must then apply.

In Ex parte Antonissen the words "required to leave (subject to appeal)" are taken from paragraph 143 of HC 169. I do not recollect that the court was asked to consider whether, or to say that, the existence of a right of appeal was an essential constituent of a valid requirement to leave. It is said that, however, even if the European Court did not make the existence of a right of appeal a necessary condition, if there is no right of appeal, the Home Secretary's contention as to the meaning of (h) should not be accepted since arbitrary conduct would be possible; under domestic law there was no right of appeal; not under the Immigration Act 1971 as there had been no refusal of a conditional grant of leave to enter and no deportation order; not under the procedure laid down in article 15(2) of the Immigration (European Economic Area) Order 1994 which only came into force some 15 months after (h) had been added to the definition of "persons from abroad." So far I agree. It has been suggested, on behalf of the respondents, however, that a right of appeal would lie to an adjudicator under section 22 of the Social Security Administration Act 1992 and that the decision to require, or the making of a requirement to, a person to leave could be challenged by way of judicial review. Judge J in Reg. v. Secretary of State, Ex parte Vitale [1995] All ER (EC) 946 appears to have considered that both avenues were open and the contrary was, it seems, not contended. The matter has not been fully argued in the present case since it is not directly in issue but I am not satisfied that any appeal who would lie from the decision of the social security adjudication officer in part since by reason of section 22(3) of the Act of 1992:

"No appeal lies under this section where-

"(a) in connection with the decision of the adjudication officer there has arisen any question which under or by virtue of this act falls to be determined otherwise than by an adjudication officer."

However, it seems to me, as it did to Judge J, that a requirement to leave could be challenged by way of judicial review. The requirement does not itself permit an involuntary removal; it may not change the individual's immigration status or the lawfulness of his presence here. It does, however, plainly affect his legal right to income support; his entitlement goes on the requirement to leave. If, therefore, national law or Community Law requires that a right of judicial challenge should exist, in my view it does so.

In Reg. v. City of Westminster, Ex parte Castelli [1996] HLR 616 the Court of Appeal held that a European national, who ceases to be a qualified person in fact but who has not been given and overstayed a limited leave to remain and has not been told that the Secretary of State has decided that he should be removed, is not a person "not lawfully here" and therefore not regarded as a "person" for the purposes of part III of the Housing Act 1985 who can claim to be homeless and in priority need of accommodation.

It does not seem to me that it is necessary in this case to decide whether the presence here of a person after the six month period has run, and on the assumption that a valid requirement has been issued to him, is unlawful. The question in this case is whether a valid requirement has been made so as to bring into play regulation 21(3)(h).

If I am wrong and it is necessary to decide it then as I see it the position is that the entrants came in solely in the claimed exercise of Community Law rights. The Government was entitled to terminate those rights, in the case of a worker in accordance with Ex parte Antonissen. If it does so those rights no longer exist even if no criminal offence is committed. The presence here then ceases to be lawful both under Community Law and for the purposes of the European Convention on Social and Medical Assistance 1953.

If regulation 21(3)(h) required the making of a deportation order Mr. Plender QC argued that it added nothing to sub-paragraph (c) which had always included persons subject to a deportation order as being persons "from abroad." I think, as did the majority in the Court of Appeal, that there is force in this argument. Moreover it seems to me clear that it was the deliberate intention to add a quite separate category of persons to those in the class of persons from abroad. There are different ways in which people can be removed from the United Kingdom. The first is by a deportation order on the grounds referred to. That is the most draconian since it prohibits return. The second is by "removal" which is provided for in paragraphs 8 and 9 of Schedule 2 to the Immigration Act 1971 for illegal entrants and those who have been refused leave to enter. The third is the power of removal under article 15(2) of the 1994 order which, as I have said, I do not read as being a deportation order.

In my opinion the "requirement to leave" in regulation 21(1)(h) does not necessitate and is not dependent on any of these methods of removal. It is a provision which does no more than to take the recipient out of the category of persons entitled to income support. That is quite plainly its purpose and that is how I read it. It is concerned only with community nationals who have sought to exercise community rights and is in no way contrary to community law. It has the same effect as if the legislation had said that the Secretary of State might by notice terminate entitlement to income support if satisfied that a person had not obtained work in the relevant period or had become a charge on public funds. I do not accept that for the purpose of cutting off income support a requirement to leave cannot be made until a notice of intention to deport has been given under section 3(5) of the Act of 1971.

In my opinion, therefore, the Secretary of State had power to require the appellants to leave because either they had failed to obtain work or they had become a charge on public funds. If he did so require them they ceased to be entitled to income support. The letters to the two appellants obviously could have been written in clearer, more positive, terms but in my view when the purpose of the provision is considered they are a sufficient communication of the requirement to leave. The fact that Mery Wolke was told that removal would not at that time be enforced is not inconsistent with the requirement to leave for the purpose intended.

I agree with the result reached by the majority in the Court of Appeal and I would accordingly dismiss both appeals.

LORD HOFFMANN

My Lords,

Ms. Wolke and Ms. Remilien are single mothers, nationals of Member States of the European Union (the Netherlands and France respectively) but now living in England. They came here with men from whom they have since separated. The question in these appeals is whether they are entitled to income support. In principle they are entitled to receive this benefit by virtue of the Social Security Contributions and Benefits Act 1982 and the Income Support (General Regulations) 1987 ("the regulations"), but paragraph 17 of Schedule 17 to the regulations says that the amount of the entitlement of a "person from abroad" shall be nil. A "person from abroad" is defined in regulation 21(3) under various heads, mainly by reference to his status under the Immigration Act 1971. The paragraph said to apply to the appellants is (h) "[a person who] is a national of a Member State and is required by the Secretary of State to leave the United Kingdom." So the short question, to which there is unfortunately rather a long answer, is whether the Secretary of State has "required" Ms. Wolke and Ms. Remilien to leave the United Kingdom. Each of the appellants has received a letter from the Secretary of State in similar terms. Ms. Remilien, who arrived here some time before the middle of 1992, received the following letter dated 8 December 1993. It read as follows:

"It has come to the notice of this Department that you have claimed income support since 11 June 1992 and that you are still continuing to claim. I should like to explain that as a European Community national you are free to enter and reside in the United Kingdom in order to exercise Treaty rights conferred by the Treaty of Rome. These include the right to seek or take employment, or to reside here in a non-economic capacity provided that you have enough resources to avoid being a burden on public funds. However, in view of the fact that you are in the United Kingdom in a non-economic capacity and that you have become a burden on public funds, the Secretary of State is not satisfied that you are lawfully resident here under EC law and you should now make arrangements to leave the United Kingdom."

The letter to Ms. Wolke, who came in April 1994, was dated 10 April 1995. It was in the same form but with two minor changes. First, Ms. Wolke was referred to as a European Economic Area ("EEA") national instead of a European Community national. This reflected the extension of rights of free movement to nationals of states of the EEA (the Member States of the European Union plus Norway and Liechtenstein) by the Agreement on the European Economic Area, signed at Oporto on 2 May 1992 as adjusted by the Protocol signed at Brussels on 17 May 1993. Secondly, an additional sentence had been added at the end. It said:

"I should add that if you do not leave the United Kingdom on a voluntary basis then, in the present circumstances of your case, we will not take steps to enforce your departure from the United Kingdom."

A social security adjudication officer decided in each case that the letters amounted to a requirement from the Home Secretary that the appellants leave the United Kingdom and accordingly brought them within the paragraph (h) definition of persons from abroad. He therefore terminated payment of income support. The appeals which bring this question before the House have taken somewhat different routes. Ms. Wolke applied for judicial review of the adjudication officer's decision, which was quashed by Popplewell J. He said that the letter did not require her to leave, though it implied that this might happen in the future. Ms. Remilien appealed to the social security appeal tribunal, which confirmed the decision of the adjudication officer and then to the Commissioner, Mr. Mesher, who allowed her appeal. He said that the letter did not have "the necessary degree of insistence or compulsion." The Chief Adjudication Officer appealed to the Court of Appeal against the decisions of Popplewell J and Mr. Commissioner Mesher. Both appeals were heard together. By a majority the Court of Appeal held that the letter constituted a requirement. Kennedy LJ accepted the submission of Mr. Plender, who appeared for the Chief Adjudication Officer, that it was sufficient that the letter had been sent by the Home Secretary (who would have power to institute proceedings leading to a deportation order) to an EEA national "who is present here without the benefit of any legal right (whether under domestic or Community law)" and told her that she should "now" make arrangements to leave. Various analogies were used: Mr. Plender said that was like a policeman telling a boy not to cycle on the pavement and Kennedy LJ said that it was like a farmer telling a picnicker to leave his field. In neither case did it matter that no immediate legal action was in contemplation: the communication by a person in authority or owner of the land amounted to a requirement. Sir Stephen Brown P agreed. He said that the Home Secretary's letter was "an authoritative letter which conveys a serious instruction." Phillips LJ dissented. He said that as a matter of construction of paragraph (h), "required to leave" meant being placed under a legal obligation to go. As it was accepted on all sides that the letters did not have this effect, they did not bring the appellants within the definition of a "person from abroad."

Paragraph (h) was added to the definition of "person from abroad" by regulation 4 of the Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1993 which was made on 22 February 1993 and came into force on 12 April 1993. It is common ground that the background to the introduction of the paragraph is developments in the Community law of free movement of persons which had occurred in previous years and in particular, the decision of the European Court of Justice in Reg. v. The Immigration Appeal Tribunal, Ex parte Antonissen [1991] ECR 1-745. Indeed, it is agreed that the phrase "required to leave" is derived from the judgment of the court. I must therefore, as briefly as the subject will admit, sketch this background, which I think is essential to the interpretation of the paragraph.

The key concept in UK immigration control is that of having "leave to enter" the United Kingdom. The Immigration Act 1971 provides that a person who is not a British citizen shall not (subject to immaterial exceptions) enter the United Kingdom "unless given leave to do so in accordance with this Act:" section 3(1)(a). A person who enters without leave is an "illegal entrant" (section 33(1); he may be removed by an immigration officer (Schedule 2, paragraph 9) and if he knowingly enters without leave, he commits a criminal offence: section 24(1)(a). Leave may be for a limited or indefinite period (section 3(1)(b)) and if limited, may be subject to conditions restricting his employment or occupation in the United Kingdom: section 3(1)(c). A person with limited leave who overstays or fails to observe a condition is liable to deportation (section 3(5)(a)) and if he does so knowingly, commits a criminal offence: section 24(1)(b).

The Act thus contemplates that persons who are not British citizens will be entitled to be present here only if they have been given leave to enter and that their right to reside in the United Kingdom will be a consequence of the terms of that leave. The whole scheme relies upon the exercise of control at the frontier and is part of the explanation for the insistence of the United Kingdom in retaining such controls, which will be specifically authorised under Protocol X to the Treaty of Amsterdam. The immigration controls of most European countries with land frontiers operate in a different way. Under their systems, the primary question is whether the non-citizen has a legal right to be present in the country, reside there, be employed or follow an occupation. His right to enter is a consequence of his having the right to be there rather than the other way round.

Our accession to the European Community created the problem of reconciling Community rights to work and to reside in other Member States, framed in European terms, with the UK system of control based on leave to enter. At first the Home Office tried to reconcile, for example, the right to be employed and seek employment conferred by article 48 of the Treaty of Rome, with the Act of 1971, by granting nationals of other Member States leave to enter for an initial period of six months without restriction as to employment or occupation. But in Reg. v. Pieck [1981] QB 571 the European Court of Justice held this to be unlawful. Persons seeking to exercise their Community rights to seek work or set up business in the United Kingdom were entitled to enter by virtue of those rights and without any leave at all. The same applied to other classes of persons later given Community rights to reside in other Member States, such as students, retired persons and self-sufficient persons: see Council Directives 90/364 EEC, 90/365 EEC and 90/366 EEC.

As a result of Reg. v. Pieck, the Home Office admitted nationals of other Member States without leave. But this produced a novel problem. Community law gave nationals of other Member States rights to reside here only for defined and limited purposes. I shall refer to people duly exercising those rights as "qualified persons." What could be done about those who entered without leave but ceased to be qualified persons? Under the old scheme of things, anyone entering for a limited purpose would be given limited leave and, if he overstayed, would commit an offence and be liable to deportation. But this method of control could not be applied to Community entrants.

Following Reg. v. Pieck, the Home Secretary announced a Statement of Changes in Immigration Rules 9 February 1983 (HC 169) in which he said (in Part VI of the Rules) that Community nationals would be admitted without leave. In paragraph 140 he said that a Community national admitted without leave under Part VI would be issued with a residence permit when he (a) entered into employment or (b) established himself in business. He then dealt with overstaying Community nationals in paragraph 143:

"A person may be required to leave the United Kingdom, subject to appeal, if he falls a charge on public funds before issue of a first residence permit, or if, after 6 months from admission, he fails to meet the requirements of paragraph 140(a) or (b) above."

There was, however, a problem about how the Home Secretary was going to implement this policy. The rules are merely a statement as to how the powers in the Act of 1971 will be exercised (see section 3(2)) and cannot create a power to require people to leave which does not exist in the Act itself. The only mechanism provided by the Act was the power of the Secretary of State to deport on the grounds that he deems the deportation to be "conducive to the public good:" section 3(5)(b). So the words "required to leave" in paragraph 143 echo part of the definition of a deportation order in section 5(1) of the Act: "an order requiring him to leave and prohibiting him from entering the United Kingdom." Deportation on the "public good" ground is however a weighty matter: the power is normally exercised on the ground of a serious criminal conviction or other conduct which shows that continued presence in this country is detrimental to the public interest. As the case of all decisions to deport, there is a right of appeal to an immigration adjudicator, who is required, under section 19(1)(a), to allow the appeal if he considers that the decision of the Secretary of State was not in accordance with the law or the Immigration Rules or if he considers that the discretion of the Secretary of State should have been exercised differently. This is the right of appeal to which reference is made in paragraph 143. The adjudicator is thus under a duty to review the discretion of the Secretary of State and give such effect to all the circumstances of the case (including, for example, compassionate grounds for not making a deportation order) as he thinks right. By section 15(2), the actual deportation order may not be made while the process of appeal against the decision to make it is still running its course.

The exercise of the power to deport on this ground would therefore not necessarily be appropriate for use in every case falling within the terms of paragraph 143. At that time, however, no wider powers to remove Community nationals existed in UK domestic law.

The lawfulness in Community law of the policy stated in paragraph 143 was considered by the European Court of Justice in Reg. v. Immigration Appeal Tribunal, Ex parte Antonissen [1991] ECR 1-745. Mr. Antonissen was a Belgian national who entered the United Kingdom in the exercise of Community rights but before he had taken up any employment, was arrested and convicted of drug dealing. While he was in prison, the Home Secretary made a deportation order under section 3(5)(b) of the Act of 1971. Mr. Antonissen challenged the order on the ground that although Article 48 of the Treaty allows the Community right to be employed and seek employment to be limited on grounds of "public policy," the grounds upon which this exception can be invoked by a Member State are narrowly delineated in Council Directive 64/221 EEC of 25 February 1964. He claimed that they did not justify his deportation for the offence which he had committed.

The Immigration Appeal Tribunal did not attempt to justify the deportation on the ground of the public policy exception. They said instead that no exception was needed; Mr. Antonissen was not employed or seeking employment and therefore had no rights under article 48 at all. And as a test of whether he still had such rights, they applied the six-month period laid down in paragraph 143 of the 1983 Rules. The Divisional Court referred to the European Court of Justice the following question, at p. 776, para. 6:

"For the purpose of determining whether a national of a Member State is to be treated as a 'worker' within the meaning of article 48 of the EEC Treaty when seeking employment in the territory of another Member State so as to be immune from deportation save in accordance with Council Directive 64/221 EEC of 25 February 1964, may the legislature of the second Member State provide that such a national may be required to leave the territory of that State (subject to appeal) if after six months from admission to that territory he has failed to enter employment?"

The answer given by the Court of Justice was, at p. 780:

"It must therefore be stated in reply to the questions submitted by the national court that it is not contrary to the provisions of Community law governing the free movement of workers for the legislation of Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged."

Thus the policy stated in paragraph 143 was vindicated. But the curious feature of the question submitted to the Court of Justice was that, although it asked whether "the legislature" might provide for a Community national being required to leave in the circumstances described, no such legislation then existed in the United Kingdom. The ground upon which Mr. Antonissen had been required to leave was the "conducive to the public good" ground of deportation. After the decision, it was therefore clear that, if the United Kingdom wished to avail itself of the full breadth of the power of removal approved by the Court of Justice, further domestic legislation would be necessary.

My Lords, it is against this background and in particular the use of the phrase "required to leave" in Ex parte Antonissen, that paragraph (h) must be interpreted. In my view, the words in the judgment mean that the Community national has been placed under a legal obligation to leave. The context of the question is the use of the deportation power to give effect to the policy expressed in paragraph 143 of the Rules and so, indirectly, the words echo part of the very definition of a deportation order in section 5(1) of the 1971 Act. If this is the context of the judgment, one should, I think, start with the assumption that paragraph (h) was also intending to refer to a legal obligation to leave.

This assumption is in my view reinforced by the reference in Ex parte Antonissen to a right of appeal. This suggests an act having legal consequences, such as a decision to make a deportation order. It is agreed, however, that the letters in this case have no affect upon the appellants' immigration status and do not give rise to any right of appeal to an immigration adjudicator. In Reg. v. Secretary of State for the Home Department, Ex parte Vitale [1995] All ER(EC) 946 Judge J said that the decision of the Home Secretary could be judicially reviewed. But I find it hard to see on what principles a court would decide that an act avowedly having no legal effect could be declared unlawful. When one comes to the decision of the social security adjudication officer to give effect to the letter by discontinuing income support, there is certainly a right of appeal to a social security appeal tribunal under section 22(1) of the Social Security Administration Act 1992. In the Vitale case, Judge J said that "in the course of his appeal before the social security appeal tribunal Mr. Vitale will be able to argue against the finding that he was not lawfully resident in the United Kingdom." I make two comments on this statement. First, it would seem odd that an appeal on a question of immigration status, which was presumably entrusted in the first instance to the Home Secretary because of his department's expertise in immigration matters, should lie to a social security appeal tribunal rather than an immigration adjudicator. Secondly, I am not sure that the judge took account of section 22(3) of the Act of 1992, which provides that:

"No appeal lies under this section where, (a) in connection with the decision of the adjudication officer there has arisen any question which under or by virtue of this Act falls to be determined otherwise than by an adjudication officer."

If the respondent's construction of paragraph (h) is correct, then by virtue of regulation 21(3)(h), the question of whether the applicant should be "required to leave" falls to be determined by the Home Secretary. The result is that the appeal tribunal cannot enter into the question of whether the applicant should have been required to leave. On this question, there is no appeal. Nor is there any other ground on which the termination of income support could be resisted. So the appellants would have no effective right of appeal. I find this a strange consequence of a regulation which is said to give effect to the Antonissen decision.

There are, however, two arguments which Mr. Plender advanced against this view. The first is that, as a matter of Community law, there was no need for entitlement to income support to be linked to being under a legal obligation to leave. There is no necessary connection between a person's right to enter and reside in the United Kingdom and his right to receive the same social security benefits as British citizens. In Centre public d'aide sociale de Courcelles v. Lebon [1987] ECR 2811 the Court of Justice decided that a national of a Member State had no right to equal treatment in matters of social security in another Member State merely because he was lawfully there. Only if he was actually employed could he claim equal treatment with other employees. And in a number of cases, the Community right to reside in a Member State is made expressly subject to making no claim on public funds. It would therefore have been open to the Secretary of State for Social Security, as a matter of Community law, simply to exclude article 48 work seekers, students and other non-economic categories of persons resident under Community rights, from any claim to income support.

On the other hand, the European Convention on Social and Medical Assistance and Protocol, a treaty which dates back to 1953, requires the United Kingdom to provide equal treatment in social security matters to nationals of the other contracting parties "lawfully present" on its territory (Article 1). But all that the Secretary of State needed to do in order to comply with this Convention was to limit the entitlement to benefits to persons lawfully present in the United Kingdom. This, says Mr. Plender, is what he was trying to do in paragraph (h). But because the question of whether someone is still bona fide exercising a Community right is often a matter of judgment, the regulations entrusted the decision on this question to the Home Secretary.

There are three difficulties about this argument. The first is that paragraph (h) does not refer to a statement by the Home Secretary that the Community national is not lawfully present. It says that he must have been required to leave. The second is that Antonissen, from which the language is admittedly derived, does not enter into the question of whether a person is lawfully present in the United Kingdom. That is a matter of domestic UK law, on which the Court of Justice would have expressed no opinion. All that the Court said was that legislation in a Member State giving the government the right to remove persons in the category described in the question would not be contrary to Community law. Thirdly, the appellants were lawfully present in the United Kingdom. As Kennedy LJ said, until they had actually been required to leave in accordance with applicable provisions of domestic law, their "presence in the United Kingdom could [not] be properly described, in terms of immigration law, as unlawful." I agree with this statement, which is contrary to the view of Judge J in Reg. v. Secretary of State for the Home Department, Ex parte Vitale [1995] All ER (EC) 946 but in accordance with that of the Court of Appeal in Reg. v. City of Westminster, Ex parte Castelli [1996] 28 HLR 616. But the acceptance of this view of the appellants' immigration status gravely weakens the value of the analogies which Kennedy LJ drew with the policeman and the cyclist and the farmer and the picnicker. The policeman's order amounts to a requirement because it is not lawful to ride bicycles on the pavement. We should have doubt about the propriety of using the word "require" if the policeman had told the boy to wear a crash helmet, this not being compulsory for pedal cyclists. Likewise the picnicker is already acting wrongfully by trespassing upon the farmer's land and the farmer is drawing attention to this fact. But the Home Secretary does not own the United Kingdom and the appellants are doing nothing unlawful in public or private law. It was true that they could be deported if (subject to appeal) the Home Secretary was able to exercise his power of deportation on the grounds of "conducive to the public good." But all non-British citizens were liable to deportation on this ground, even those who had lived here for many years pursuant to indefinite leave. That contingency could not make their presence here unlawful in advance of the order being made.

Mr. Plender's second argument is that if paragraph (h) means that there must have been a legal obligation to leave, it added nothing to paragraph (c), which was already in the definition before 1993 and read as follows:

"[A person who] is the subjection of a deportation order being an order under section 5(1) of the 1971 Act (deportation) requiring him to leave and prohibiting him from entering the United Kingdom."

In 1993, a deportation order was the only way in which someone could have been placed under a legal obligation to leave and paragraph (h) would therefore have been superfluous.

This argument impressed the majority in the Court of Appeal but there are two reasons why I would reject it. First, one cannot exclude the possibility that the Secretary of State (or, more realistically, his advisers) were simply muddled about what Ex parte Antonissen had decided. There is some support for this view in the passage from the minutes of a statement made on 27 April 1993 by Mr. Alistair Burt, Parliamentary Under Secretary of State for Social Security to the House of Commons Second Standing Committee on Statutory Instruments etc., to which Mr. Pender drew our attention and to which I shall return. But secondly, and more likely, I think it must have been clear after Ex parte Antonissen that there would have to be legislation to create in domestic law a power of removal in the terms which that case had assumed to exist. Such a power was eventually enacted in paragraph 15(2) of the Immigration (European Economic Area) Order 1994, made under section 2(2) of the European Communities Act 1972:

"An EEA national and the family member of such a person may be removed from the United Kingdom-

(a) on his ceasing to be a qualified person or the family member of such a person (as the case may be) ... but he may appeal against the decision to remove him-

(i) if he is a person to whom paragraph (a) applies, as if he were a person in respect of whom the Secretary of State had decided to make a deportation order and were entitled to appeal by virtue of section 15(1)(a) of the 1971 Act ..."

Mr. Plender says on instructions, and I of course accept, that the terms of the 1994 Order were not in contemplation when paragraph (h) was enacted in 1993. I think, however, that it must have been obvious that some legislation to give effect to Ex parte Antonissen was on the cards and that, by using the very language of the Court of Justice, the Secretary of State was providing for any eventuality.

Mr. Plender says that on the appellants' construction, paragraph (h) remains superfluous to this day because orders for removal under paragraph 15(2) of the 1994 Order are also deportation orders under section 5(1) of the Act of 1971 and therefore within paragraph (c). I do not think that this is right. The distinction between a deportation order, which requires a person not merely to leave but also not to return, and a power of "removal," which permits return in changed circumstances, either with leave or as of right, is clearly made in the Act of 1971 itself. Persons who have been refused leave to enter and illegal entrants may be removed under paragraphs 8 and 9 of Schedule 9 but such removal is not inconsistent with being able to return lawfully if they can afterwards obtain leave or are otherwise entitled to do so. They have not been deported. For the purposes of appeal, a decision to remove is treated as if it were a decision to make a deportation order giving rise to a right of appeal under section 15(1)(a), but this provision only serves to emphasise that the removal is not a deportation order.

Mr. Plender also relies upon the parliamentary statement to which I have referred. In reply to a question from Mr. Kirkwood MP about the effect of paragraph (h), Mr. Burt said:

"The purpose of the regulation is to put the policy intention beyond doubt in terms of restricting the payment of income support to EC nationals. It deals specifically with the change that we needed to make to legislation following a European Court decision. The rules effectively make clear that, provided that an EC national is genuinely seeking work, he or she will be allowed to stay here for a period of six months and may claim income support. If work has not been found by the end of that period, the EC national must leave. Other EC countries vary in how long they allow basic income support to be paid to a work seeker; some are more generous and others less so. We think that six months is about right. Other persons from abroad, from outside the European Community, have no entitlement to income support except in urgent cases. The regulation deals specifically with jobseekers who are EC nationals. That is why the regulation relates to them rather than to other persons from abroad. Definition is, of course, more a matter for the Home Office than for us."

Mr. Plender says that this statement is admissible in aid of construction under the principle in Pepper v. Hart [1993] AC 593. One of the conditions for admissibility under that principle is that the statement must be clear: see Lord Browne-Wilkinson, at p. 640. I do not think that the minister's statement passes this test. Nor, probably, did the departmental brief upon which it was based. It says that if the EC national has not found work by the end of six months, he "must leave." Who, in 1993, was to make him leave and under what power? This, it says, is a matter for the Home Office. But the statement is by no means clear as to whether stopping entitlement to income support is to be dependent upon the exercise by the Home Office of such powers as it had or, if not, upon what other event. I find the statement of no assistance.

There was some discussion in argument of the effect of article 20(1) of the 1994 Order, which provides:

"An EEA national who is in the United Kingdom and the family member of such a person shall be treated as if he were a person who required leave to enter or remain in the United Kingdom on his ceasing to be a qualified person or the family member of a qualified person (as the case may be)."

It was suggested that the effect of this article is to deem a person who ceases to be a qualified person to be a person whose leave has expired and whose presence in the United Kingdom is therefore unlawful. The article was considered by the Court of Appeal in Reg. v. City of Westminster, Ex parte Castelli [1996] 28 HLR 616 and was thought not to have this effect. I express no view because whether or not it has had the effect of making the presence of the appellants in this country unlawful, it cannot make the Home Secretary's letter a requirement to leave. In my view, Phillips LJ was right in saying that such a requirement would involve the making (after any appeals had run their course) of a deportation order or an order for removal under article 15(2) of the 1994 Order. I would therefore allow the appeals and restore the orders of Popplewell J and Mr. Commissioner Mesher.

LORD HOPE OF CRAIGHEAD

My Lords,

I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Hoffmann. For the reasons which he has given I also would allow the appeals and restore the orders which were made at first instance.

LORD HUTTON

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hoffmann. I agree with it and for the reasons he gives I would allow these appeals and restore the orders of Popplewell J and Mr. Commissioner Mesher.

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	UK Social Security and Child Support Commissioners' Decisions
You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> Remilien v. Secretary of State for Social Security Woke v. Chief Adjudication Officer [1997] UKSSCSC CIS_472_1994 (27 November 1997) URL: http://www.bailii.org/uk/cases/UKSSCSC/1997/CIS_472_1994.html Cite as: [1997] UKSSCSC CIS_472_1994