LORD JUSTICE JONATHAN PARKER - - - - - -
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(1) LONDON BOROUGH OF HARINGEY
(2) DEPARTMENT FOR SOCIAL SECURITY
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MR MANJIT GILL QC and MR JON HOLBROOK (Instructed by Traymans, 167 Stoke Newington Church Street, London N16 GUL) appeared on behalf of the Appellant.
MR JAMES FINLAY (Instructed by Harvey Chapell, Alexandra House, Station Road, London N22 4TR) appeared on behalf of the First Respondent.
MR NIGEL GIFFIN (Instructed by Office of the Solicitor, Department of Social Security, New Court, 48 Carey Street, London WC2A 2LS) appeared on behalf of the Second Respondent.
1. LORD JUSTICE PETER GIBSON: I will ask Buxton LJ to give the first judgment.
2. LORD JUSTICE BUXTON: The appellant in this appeal, Mr Kaya, is an asylum seeker. He was born in Turkey and is of Kurdish race. He came to the UK in August 1997 claiming asylum on arrival on the grounds that, as he alleged, he had been detained by the Military Police in Turkey and tortured there. His claim for asylum apparently has still not been determined some three and a half years after it was made.
3. On 14th May 2000 Mrs Kaya, as she now is, arrived in the United Kingdom. She married Mr Kaya on 22nd May 2000. She also is an asylum seeker on the same, or broadly the same, grounds as her husband, in particular that she is a Kurd.
4. Both Mr Kaya and Mrs Kaya, having made their claim for asylum on arrival, were granted temporary admission to this country under the provisions of paragraph 21 of Schedule 2 to the Immigration Act 1971. That reads as follows:
“(1) A person liable to detention or detained under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him.”
5. It is to be noted, for reasons to which I shall have to return, that temporary admission is distinctly different from the person who arrives being given leave to enter the United Kingdom under section 3 of the 1971 Act.
6. These proceedings arise because Mr and Mrs Kaya were unfortunately evicted from their previous premises on 5th October 2000 and are homeless. They seek accommodation from the London Borough of Haringey as homeless persons under the provision of Part 7 of the Housing Act 1996. They assert, first, that they are not intentionally homeless, a matter with which we are not concerned; and, second, because Mrs Kaya was in October 2000 pregnant when they made their claim for accommodation, that they had a priority need by reason of her pregnancy. That priority need on the part of Mr Kaya arises from Mrs Kaya's pregnancy under the terms of section 189(1)(a) of the Housing Act 1996. For Mr Kaya to be able to assert that priority need it is necessary to demonstrate that Mrs Kaya is eligible for housing assistance. That is so provided by section 185(4) of the Housing Act 1996. Because Mrs Kaya is an asylum seeker and therefore a person subject to immigration control, it is necessary to demonstrate that she fulfils the requirements of section 185(2) of the Housing Act 1996, which reads as follows:
“A person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he is of a class prescribed by regulations made by the Secretary of State.”
7. Her claim to fall within a class prescribed by regulations made by the Secretary of State is made under the Homelessness (England) Regulations 2000, regulation 3 and Class E thereof. That reads as follows:
“3. - (1) The following are classes of persons prescribed for the purposes of section 185(2) of the 1996 Act (persons subject to immigration control who are eligible for housing assistance).”
8. Then a series of cases is set out and we come to Class E, which reads as follows:
“a person who is habitually resident in the Common Travel Area and who
(i) is a national of a state which has ratified the European Convention on Social and Medical Assistance done at Paris on 11th December 1953 ... and is lawfully present in the United Kingdom.”
9. Mrs Kaya is a national of a state that has ratified the European Convention on Social and Medical Assistance (to which I shall refer here after as “ECSMA”) because she is a national of the State of Turkey. At first sight, therefore, it would appear that she does fulfil that somewhat convoluted requirement for eligibility for housing assistance. Two arguments are, however, adduced in this appeal to demonstrate that she in fact does not fulfil that requirement and, therefore, because she does not fulfil that requirement, neither does her husband.
10. The first is what I shall refer to as the construction argument. It is the argument that was ventilated before the judge below on the part of Haringey as the local housing authority. It runs as follows. There is now provided in the Housing Act 1996 a new section, section 185(2A). That provides as follows:
“Regulations may not be made under subsection (2) so as to include in a prescribed class any person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies.”
11. Section 115 of the Immigration and Asylum Act excludes various persons from entitlement to Social Security benefits as that section sets out. By section 115(3):
“This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed.”
12. Mrs Kaya is subject to immigration control. So far as the prescription of conditions is concerned, section 115(4) of the 1999 Act provides as follows:
“Regulations under subsection (3) may provide for a person to be treated for prescribed purposes only as not being a person to whom this section applies.”
13. Acting under that power or liberty the Secretary of State has made regulations, the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, to address such a matter. Regulation 2(1) addresses the question of persons who are not excluded from specific benefits under section 115 of the 1999 Act, that is to say it takes out of what is a general exclusion of persons subject to immigration control certain protected classes. Regulation 2(1), so far as material, reads as follows:
“For the purposes of entitlement to income-based jobseeker's allowance, income support, a social fund payment, housing benefit or council tax benefit ...., as the case may be, a person falling within a category or description of persons specified in Part I of the Schedule is a person to whom section 115 of the Act does not apply.”
14. Amongst the persons specified in Part I of the Schedule are those to whom the ECSMA applies, that is to say persons who, like Mrs Kaya, are nationals of the state that has ratified the ECSMA.
15. The learned judge below, who had the burden of trying to put together this incremental series of provisions and savings came to the conclusion in a careful judgment that Mr and Mrs Kaya did not qualify for housing benefit. That was because his view was that section 115, the principal disqualifying section, was disapplied by the regulations only in respect of means-tested benefits and not otherwise, that is to say only in respect of those benefits duly listed in regulation 2(1) which I have read. He therefore concluded that section 115 otherwise applied to persons subject to immigration control, and thus excluded them from housing assistance.
16. It may be that that conclusion was theoretical only because the Homelessness Regulations were made before the prohibition in section 185(2)(a) came into force. We do not need to pass on that difficult question, and I shall not in this judgment deal further with the construction argument, because since the matter was before the learned judge a different argument has emerged on which basis it is further contended that Mr and Mrs Kaya are not entitled to housing assistance. This argument has emerged because since the matter was before the learned judge the Secretary of State for Social Security has applied to intervene in this appeal, not least because the issues are said to raise questions that go well beyond the simple question of housing assistance.
17. In that intervention the Secretary of State has been represented before us by Mr Giffin, who has furnished the court with an extremely helpful and careful skeleton argument. In going on to the objection raised by the Secretary of State, which has formed the centre point of this appeal and a point that was not before the judge below, it is however right that I should note that the Secretary of State did not find himself able in his written submissions to the court to support the basis upon which the learned judge below had decided this issue, though, as we understood it, that basis would still have been supported by the London Borough of Haringey had they been called upon in this appeal.
18. Put very briefly, the argument adduced by Mr Giffin in respect of the construction argument that I have just set out was to the effect that the true meaning of the various provisions was that, provided a person subject to immigration control was eligible for some sort of Social Security benefit, it followed that they would be eligible for housing assistance. We have not determined any of those questions, and I do not intend to attempt to do so. But in view of the care that the judge below took, and the concern generally about that issue, it is right that I should put on record that there is not at the moment unanimity amongst those who bear the burden of administering these provisions as to what exactly they require.
19. I turn, however, to the argument adduced by the Secretary of State, which is the matter which we have been concerned with in this appeal.
20. As I have already indicated, Mrs Kaya has been but temporarily admitted to this country under Schedule 2 of the 1971 Act; and, as I have also indicated, such temporary admission has to be carefully distinguished from a leave to enter this country under the immigration provisions. If a person enters the United Kingdom without leave to enter they commit a criminal offence. That is provided by section 24(1)(a) of the Immigration Act 1971. A person who has the benefit, as Mrs Kaya does, of temporary admission does not, however, commit such a crime; because for the purpose of the Immigration Act 1971 they are regarded as not being within the United Kingdom at all and therefore any question of unlawful entry cannot arise. That outcome is created by the provisions of section 11(1) of the Immigration Act 1971, which read as follows:
“A person arriving in the United Kingdom by ship or aircraft shall for the purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer...”
21. I end the quotation there, but go on to say that there then follows in that subsection this critical provision for the purposes of this case:
“...and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to this Act.”
22. To qualify for housing assistance under section 185(2) of the Housing Act Mrs Kaya must fulfil all the requirements set out in the description of Class E, regulation 3 of the Regulations of 2000 which I have already read. She must not just be a person who comes from an ECSMA state; she must also be lawfully present here. The two contentions before us on that issue are as follows.
23. The Secretary of State contends that Mrs Kaya is not lawfully present in the United Kingdom. Were it not for the particular provision of section 11(1) of the Immigration Act 1971 she would be committing a criminal offence by being here at all. It is only section 11(1), read in the context of the rest of the Act, that saves her from committing an offence.
24. The argument on the part of Mrs Kaya was originally formulated on her behalf by Mr Nicholas Blake QC, who settled the skeleton argument in this appeal. Oral argument was addressed to us on Mrs Kaya's behalf on the basis of that skeleton by Mr Manjit Gill QC. The terms of Class E of the regulation and the concept of lawful presence that it includes were taken directly from the ECSMA itself. Article 1 of the ECSMA reads as follows:
“Each of the Contracting Parties undertakes to ensure that nationals of the other Contracting Parties who are lawfully present in any part of its territory to which this Convention applies, and who are without sufficient resources, shall be entitled equally with its own nationals and on the same conditions to social and medical assistance ... provided by the legislation enforce from time to time in that part of its territory.”
25. Mr Gill argued that this was an international treaty and it was therefore to be interpreted by its own autonomous terms and not be constrained by the rules of domestic law. Moreover, it was necessary to give the treaty a purposive instruction. That purpose could be assumed to be to give relief to all nationals of ECSMA countries once they have found themselves in another ECSMA state and in need, as Article 1 would seem to provide. It followed from that that the status in the United Kingdom domestic law of an ECSMA national who was in fact physically present in the United Kingdom was irrelevant to, or at least not dispositive in, the proper construction of the Convention; and accordingly, by the same token, not dispositive in the proper construction of the regulation, the formulation and wording of which was clearly based upon that same Convention.
26. The domestic law position, so far as a person in Mrs Kaya's condition is concerned, appears to be perfectly clear; because under the provisions of section 11(1) of the 1971 Act she is not “lawfully present” because she is not present at all. In support of that argument, Mr Giffen relied upon observations in the decision of the House of Lords in the case of Regina v Home Secretary ex parte Bugdaycay  AC 514, at page 527, 525H-526G, in the speech of Lord Bridge of Harwich. In that case the House had to interpret the expression “refugee lawfully in their territory” in Article 32(1) of the Geneva Convention on Refugees. Lord Bridge held that the argument that a person with temporary admission was lawfully in the territory of the United Kingdom would in the circumstances of that case, which concerned a person coming from a third country, put a very surprising construction on Article 32. But he also went on to say in much more general terms that the argument that a person with temporary admission was lawfully in the territory of the United Kingdom was, as Lord Bridge put it, “quite untenable” in the view of the provisions of section 11(1) of the 1971 Act.
27. I, for my part, see absolutely no reason not to apply that same reasoning to virtually the same wording and virtually the same concept that is to be found in Class E of regulation 3 of the 2000 Regulations. It is not to be expected as a matter of domestic law, and, as I shall shortly demonstrate, cannot be held as a matter of international law, that the same wording addressing a similar saving in respect of the state's obligations should be interpreted differently in different places.
28. The appellant, however, says that that approach is misconceived or at least is irrelevant, these provisions being, as they are, international provisions. The case was put in this way in paragraphs 25 and 26 in Mr Blake's skeleton, which Mr Gill adopted before us. First, as we have already seen, that the concept of “unlawful presence” must be interpreted in its context of the ECSMA and compatibly with international obligations to which it is intended to give force. That meant, first, that it had an autonomous meaning, second, that it should be subject to purposive construction and, third, that the meaning given to it should be an international meaning rather than one dictated by national law.
29. For those propositions in respect of the construction of an international Convention reference was made to the speeches in the House of Lords in the case of Regina v Secretary of State for the Home Department ex parte Adan  2 WLR 143, in particular in the speech of Lord Steyn at page 153D. Lord Steyn said:
“... the inquiry must be into the meaning ... as an international instrument created by the agreement of contracting states as opposed to regulatory regimes established by national institutions.”
30. And at a passage at page 154 F, he said this must be done
“...without taking colour from distinct features of the legal system of any individual contracting state.”
31. These very broad general principles are, with respect, not in any way in doubt. But it is difficult to discern, and I have to say we were given no clear indication, how they are supposed to apply here. I refer to a number of considerations:
(1)What indeed is the “autonomous” meaning of the ECSMA and of this expression within it? There appears to be no authority on that point, and we were given no clear guidance as to what that meaning would or might be.
(2)There is no settled international meaning of the term “lawfully”, not merely in international but in national law. The word is a notoriously slippery expression, that can mean a wide range of things in different contexts. One has to ask oneself why that expression is used in the ECSMA at all. By far the most obvious explanation, it seems to me, is that the contracting parties to that Convention wished to reserve to themselves the right to determine conditions of entry at least in cases not covered by the refugee Convention, well before any concepts such as community citizenship and membership of the European Union were available to them.
32. If the parties to the ECSMA had intended any different approach, for instance to say that their interest in European integration went so far as to say that an ECSMA state could not object to the presence of an ECSMA national save under certain particular conditions, then they would have had to say so. It is revealing in that context to compare the laconic terms of Article 1 with the very detailed provisions about repatriation, which does involve some interference with national law, that is to be found in section 2 of the ECSMA.
33. Before us Mr Gill has advanced two arguments which he said demonstrated what the ECSMA was seeking to achieve. The first of these was as follows. It is said that the essence of section 11 of the 1971 Act was that a person temporarily admitted who was not “present” in the United Kingdom. That latter was a domestic law rule, a deeming or artificial provision, in a circumstance where as a matter of fact, in normal language, such a person was present in the United Kingdom. International law would recognise that latter factual circumstance; and the further necessary element of lawfulness of that presence was provided by the fact that under the provisions the party had in fact been let into the country in circumstances where they were committing no crime by being there. That argument however mistakes the function and role of section 11. In the whole context of the Immigration Act it is admittedly a device, but it is a device to prevent persons who have not been granted leave to enter, but whose case has to be further considered, from committing what would otherwise be a criminal offence under national law. So section 11 does go to the lawfulness of the person's presence and is directly relevant to the question of whether, under national rules, the seeker for asylum is “unlawfully present” in this country. As I have already indicated, in my judgement the purpose and intention of the ECSMA rule is that that should be a matter for the contracting state.
34. Second, Mr Gill suggested that an autonomous meaning for the expression “lawful presence” could be found from the provisions or assumptions of the Geneva Convention on Refugees. There is a duty on the State to consider asylum claims. A claimant is therefore lawfully in a State as a matter of international law while that consideration is being undertaken.
35. There are at least three difficulties with that argument. The first is that we were shown no part of the Geneva Convention that so provides. For my part, although I entirely accept the general obligation, recognised in the jurisprudence of this country, that since refugee status is recognised by the courts of this country but not created by them the authorities have to consider a claim for refuge before taking a step towards expulsion, that is a long way from saying that that obligation is created or assumed in international law by the Geneva Convention to the extent of creating a particular lawfulness in a person's presence here whilst his case is being investigated. Second, although the present case is one that involves an asylum claim, and it is in the asylum context that these difficulties are likely to arise, the concept of lawful presence in the 1953 Convention is more general than that; and I do not see that a rule of international law applicable to that Convention could be drawn from the Geneva Convention alone. Third, this argument is plainly inconsistent with the ruling of the House of Lords in Bugdaycay, or rather with what Lord Bridge has said in that case. That consideration is relevant not only to the construction of the domestic meaning of these terms, but also to their international meaning. That is for this reason. An international treaty has only one meaning. That is the teaching of the House of Lords in Adan. But in a case in the domestic courts, those courts have to determine, for better or worse, what that meaning is; and their determinations are binding in the same way as ordinary domestic decisions are equally binding within the structure of legal precedent.
36. That point has recently been emphasised by the Divisional Court of the Queen's Bench Division in the case of the Regina v Central Criminal Court ex parte Bright and others  1 WLR page 662, the observations relevant to this issue being those of Judge LJ at page 682, letters D-F, and Maurice Kay J at page 693, letter C. I venture to quote some words of Judge LJ. He was addressing himself to an argument based upon another and perhaps slightly different international Convention, the European Convention on Human Rights. But his observation goes more generally than that. He was referring to arguments that had been addressed to that court based upon decisions of the European Court of Human Rights at Strasbourg, as opposed to guidance previously given by the House of Lords. He said this:
“Without implying any disrespect for the decisions of the European Court, sitting the Divisional Court in England, where such a decision or group of decisions has been examined by the House of Lords or Court of Appeal, this court is bound by the reasoning of the superior courts in our jurisdiction. We are not permitted to re examine decisions of the European Court in order to ascertain whether the conclusion of the House of Lords or the Court of Appeal may be inconsistent with those decisions or susceptible to a continuing gloss. The principle of stare decisis cannot be circumvented or disapplied in this way, and if it were the result would be chaos.”
37. With the greatest of respect, I would strongly endorse those observations. It was not open to Mr Gill to argue in this court, as he at one time sought to do, that Lord Bridge had taken an approach incorrect in international law to the construction of the Refugee Convention. In my judgement Lord Bridge's exposition in Bugdaycay is a binding exposition of the meaning and implications of virtually the same phrase with which we are concerned in another international Convention. I regard it as binding upon us even if we are to be seen as interpreting “lawfully present” as used in the ECSMA rather than “lawfully present” as used in the domestic legislation of Class E of regulation 3 of the 2000 Regulations.
38. In his skeleton argument Mr Blake sought support from two cases in international law, both of which I will mention, though only one of them was relied upon in argument by Mr Gill. Neither of these cases come anywhere near the ECSMA itself. That, as far as we are aware, is innocent of any guiding interpretation whatsoever. Certainly none was put before us.
39. The first case is the case of D v UK  24 ECHR 423. That involved a question of whether a person physically present in the United Kingdom, but who had been refused leave to enter, was within the jurisdiction of the United Kingdom for the purpose of his being able to rely upon Article 3 of that Convention. There was no doubt that Mr D was within the “jurisdiction” of the United Kingdom, however that expression might be interpreted, because the United Kingdom was asserting rights over him, in particular the right to expel him to the country from whence he had come. That has nothing to do with whether for the purpose of other conventions he was “lawfully present” here. It was simply to do with whether under that particular Convention he could claim a right or opportunity that would not otherwise have been available to him.
40. The other case was the case of Regina v Secretary of State for the Home Department ex parte Yiadom, a judgment of the Fifth Chamber of the European Court of Justice delivered on 9th November 2000, therefore not yet appearing in the European Court Reports. That was a case where it was sought to expel or not to allow to enter a lady who was a citizen of the Netherlands and therefore a citizen of the European Union. The question was whether she had a right of appeal in respect of expulsion from the United Kingdom or whether, because she had been only granted temporary admission, the issue was still one of admission rather than of expulsion. It was therefore a somewhat narrow point on the construction of the directive under which she claimed to have a right of appeal. The case was decided by the European Court of Justice, not on any broad principle with regard to the meaning of section 11(1), but on the basis of wide principles of community law. In particular, in paragraph 24 of its judgment, the court said as follows:
“The Court has consistently held that the principle of freedom of movement of persons must be given a broad interpretation.”
41. Then a large list of very familiar authority is quoted. The Court continued:
“25.In the same way, provisions protecting Community nationals who exercise that fundamental freedom must be interpreted in their favour.”
42. Then in paragraph 38:
“In the light of the principles for interpreting the Directive, which are set out in paragraph 24 to 26 above, it must be held that the measure determining the situation of such a national cannot be classified as a `decision concerning entry within the meaning of the Directive', but that the national must be entitled to procedural safeguards laid down in Article 9 of the Directive.”
43. That was a decision principally about the implications of Mrs Yiadom's citizenship of the community and her rights under the community treaties. It did not say anything in general about the status of section 11(1) in international law, much less can it possibly be relied on by a person such as Mrs Kaya who has the misfortune, if that is the right expression, not to be a citizen of the European Union. If she were such the position would clearly be different.
44. For those reasons, therefore, I am clearly of the view that, in particular following the guidance given by the House of Lords in Bugdaycay, it is the case both in international law as interpreted in the courts of this country and in domestic law that Mrs Kaya is not lawfully present in this jurisdiction in this country. She therefore does not qualify under the only provision that in the present state of English domestic law could assist her, that is to say category E of the 2000 Regulations. In those circumstances, therefore, Haringey was not obliged to grant either her or her husband housing assistance.
45. I would dismiss this appeal, noting however that the ground upon which the court has decided this appeal is entirely different from that upon which the learned judge had decided the case before him.
46. LORD JUSTICE JONATHAN PARKER: I agree.
47. LORD JUSTICE PETER GIBSON: I also agree.
Order: Appeal dismissed. In the unusual circumstances of this case we do think it appropriate to make an order for costs against the unsuccessful appellant in favour of each of Haringey and the Department for Social Security. We shall make the further order that the costs are to be recovered from the legal services commission. We will make the usual order. We assess the contribution of the unsuccessful appellant as nil. We leave the costs order below undisturbed. We refuse permission to appeal to the House of Lords.