Barnet London Borough Council v Ismail and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Lloyd,Lord Justice Richards |
| Judgment Date | 06 April 2006 |
| Neutral Citation | [2006] EWCA Civ 383 |
| Docket Number | Case No: B2/2005/1497 & 14985BT02801 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 April 2006 |
[2006] EWCA Civ 383
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BARNET COUNTY COURT
HH JUDGE RICH QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lord Justice Lloyd and
Lord Justice Richards
Case No: B2/2005/1497 & 14985BT02801
Mr Christopher Vajda QC and Mr Ranjit Bhose (instructed by The Solicitor to the London Borough of Barnet) for the Appellant
Mr Nicholas Blake QC and Miss Jane Hodgson (instructed by Chambers Rutland and Crawford) for the Respondent Abdi
Mr Stephen Knafler (instructed by Bennett Wilkins) for the Respondent Ismail
Mr Nicholas Paines QC and Miss Eleanor Grey (instructed by the Solicitor to Her Majesty's Treasury) for the Intervener
These appeals raise issues of some importance in relation to the obligations of local housing authorities to offer assistance to persons from abroad under Part VII of the Housing Act 1996. Both of the respondents are citizens of the Kingdom of the Netherlands living within the London Borough of Barnet, who are economically inactive owing to child-care obligations, and are in receipt of income support. The local authority refused their application for housing assistance, but that decision was reversed by HH Judge Rich QC sitting in the Central London County Court.
The local authority saw itself as applying the policy of, and the understanding of the relevant legislation of, the First Secretary of State, who had issued guidance to the effect that persons from abroad who are not subject to immigration control are only eligible for housing assistance if they have a right to reside in the "Common Travel Area" (the UK, the Republic of Ireland, the Channel Islands and the Isle of Man) . By contrast, under Regulations made by the Secretary of State (the Homelessness (England) Regulations 2000, regulation 3, class I) a person who is subject to immigration control and is in receipt of income support is eligible for assistance under the 1996 Act. The view of the Secretary of State, adopted by Barnet, is that persons from the EEA, such as the respondents, are not subject to immigration control in the sense relevant to the Regulations. To the contrary, and on one level paradoxically, Ms Abdi and Mr Ismail strenuously contend in these proceedings that they are indeed subject to immigration control. That is a claim that in most circumstances a person might be very reluctant to admit to. The respondents assert it in order to bring themselves, as persons subject to immigration control, within the exemption set out in regulation 3.
The legislative trail that leads to these contrasting positions on immigration control is as follows. Section 185(2) of the Housing Act 1996 provides that a "person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he is of a class prescribed by regulations made by the Secretary of State." That latter category includes the provision under the Homelessness Regulations 2000 referred to in §2 above. By section 185(3) of the Housing Act the Secretary of State may make provision by regulations as to "other descriptions of persons" who are to be treated as persons from abroad who are ineligible for housing assistance. As the judge pointed out in §6 of his judgment, that must mean persons other than those subject to immigration control, those latter being the description of persons addressed in section 185(2) . Under that power, regulation 4 of the Homelessness Regulations renders ineligible anyone who is not habitually (that is, by right) resident in the Common Travel Area, save in certain special cases, none of which apply to the respondents. That is why the only way in which the respondents can obtain a right to housing assistance is by bringing themselves within class I of regulation 3, as a person subject to immigration control who is in receipt of income support.
That crucial condition is, for the purposes of section 185(2) of the Housing Act, to be interpreted according to section 13(2) of the Asylum and Immigration Act 1996: a person is so subject to immigration control if he is "a person who under [the Immigration Act 1971] requires leave to enter or remain in the United Kingdom (whether or not such leave has been given) ". The terms of section 13(2) of the 1996 Act can only be understood in the context of the Immigration Act 1971, which underpins them and, as we have seen, is specifically referred to in the 1996 Act. The scheme of the 1971 Act was, put shortly, that only persons having the right of abode in the United Kingdom are free to live in and come and go to and from this country. By section 1(2) of the Act, other persons may only live in the United Kingdom with permission and subject to such regulation as the Act provides. The advent of the European Union required special arrangements to be made for nationals of member states of the Union, such as are the present respondents; but those arrangements are still within the framework of and subject to the assumptions of the 1971 Act. Those special arrangements are to be found in section 7 of the Immigration Act 1988. That provides that a person does not require leave under the 1971 Act to enter or remain in the United Kingdom if he is entitled to enter or remain in the United Kingdom "by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972." The respondents do not assert (or in the unusual structure of this case it might be more accurate to say, do not admit to) any enforceable Community right, but reference must be made to the relevant provision made under section 2(2) , the Immigration (European Economic Area) Regulations 2000.
By regulation 12, an EEA national must be admitted to the United Kingdom if he produces on arrival a valid identity card or passport issued by an EEA state. By Regulation 14 an EEA national is 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. The respondents are not qualified persons in the sense of the Regulations; and by Regulation 21(3) (a) a person who is not a qualified person may on that ground taken by itself be removed from the United Kingdom.
On the basis of these provisions, the issue of whether the respondents are subject to immigration control, as defined in section 13(2) of the 1996 Act, would appear to be simple. They do not require leave to enter the United Kingdom, because Regulation 12 so provides. But it would seem clear that they require leave to remain here under the 1971 Act, because by section 1 thereof all persons other than...
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...The former is not subject to the Scheme but the latter is. He referred to the decision of the Court of Appeal in Ismail v Barnet LBC [2006] 1 WLR 2771 which establishes that EEA nationals who are not exercising treaty rights are subject to immigration control. By the legislation then appli......
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