Mayor and Burgesses of the London borough of tower Hamlets v Secretary of State for Department of the Environment
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,THE MASTER OF THE ROLLS,LORD JUSTICE WAITE |
| Judgment Date | 07 April 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0407-5 |
| Docket Number | No. QBC0F 92/0592/D. |
| Court | Court of Appeal (Civil Division) |
| Date | 07 April 1993 |
[1993] EWCA Civ J0407-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION
(Lord Justice Lloyd and Mr. Justice Waterhouse)
Before: The Master of the Rolls Lord Justice Stuart-Smith and Lord Justice Waite
No. QBC0F 92/0592/D.
IN THE MATTER OF PART III OF THE HOUSING ACT 1985 AND AN APPLICATION FOR JUDICIAL REVIEW
MR. A. G. UNDERWOOD and MISS L. GIOVANNETTI (instructed by Mr. J. E. Marlowe, Acting Head of Legal Services, London Borough of Tower Hamlets, London E2) appeared on behalf of the Appellants.
MR. D. PANNICK Q.C. and MISS J. BEALE (instructed by the Treasury Solicitor) appeared on behalf of the Respondents.
(As approved)
This is an appeal from a decision of the Divisional Court given on 9th April 1992 in which that Court refused the relief sought by the appellants, the London Borough of Tower Hamlets (Tower Hamlets), by way of judicial review in relation to certain paragraphs of the latest edition of the Code of Guidance issued by the Department of the Environment under Section 71 of the Housing Act 1985. Part III of that Act imposes duties and obligations on local authorities, including Tower Hamlets in respect of housing homeless persons who apply for housing and assistance.
The paragraphs of the Code in question are 4.11 and 4.12 which were introduced for the first time in the 1991 edition of the Code. They read as follows:
"4.1 Authorities cannot refuse to rehouse a family because they are immigrants. Everyone admitted to this country is entitled to equal treatment under the law; their rights under Part III of the Act are no different from those of any other person. Authorities should remember to treat as confidential information received on an applicant's immigration status. In seeking to establish an applicant's identity authorities should use passports if produced voluntarily as one of a number of possible forms of identification, or where there is no other form of identification.
4.12 Authorities should however be aware that people in the UK with limited leave to remain (apart from refugees and asylum seekers) may prejudice their immigration status if they have recourse to public funds (including accommodation provided under Part II of the Act). If it therefore comes to light in the course of investigations that an applicant may only have limited leave to remain in the UK the housing officer should inform the applicant that s/he may be jeopardising his/her status and advise him/her to contact the Home Office or an independent advice agency for help. If, in this instance, the applicant wishes to maintain his/her application the authority must continue to investigate the case in the ordinary way."
The appellants contend that that guidance is misleading and contrary to the true legal position in certain respects and consequently ultra vires.
In common with some other local housing authorities throughout the country, Tower Hamlets has a large immigrant population. The problem arises in the discharge of their duties under the Housing Act in relation to illegal immigrants, that is to say those who are not lawfully in this country. All persons who are not British citizens require leave to enter the United Kingdom in accordance with the Immigration Act 1971 (see section 3(1)). By section 33(1) of the Immigration Act "entrant" is defined as meaning a person entering or seeking to enter the United Kingdom and "illegal entrant" means a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes a person who has so entered. By Section 26(1)(c) of the Immigration Act it is an offence for a person to make to an immigration officer a statement or representation which he knows to be false or does not believe to be true. In Regina v. Home Secretary ex parte Khawaja (1984) AC 74 it was held that a person who obtains leave to enter by deception which amounts to an offence contrary to section 26(1)(c) of the Act is an "illegal entrant".
By paragraph 50 of the Statement of Changes in Immigration Rules (HC.251) (the Rules), made under the powers conferred by Section 3(2) of the Act, a person seeking admission as a spouse of a person who is present and settled must hold a current entry clearance, which will be refused unless the entry clearance officer is satisfied that there will be adequate accommodation for the parties and their dependants without recourse to public funds, in accommodation of their own, or which they occupy themselves. Similar provisions apply to fiancees and other relatives (paras. 47, 52 and 53); to visitors (para.22); students and their dependants (paras.26 and 31); businessmen and self-employed (para.42); persons of independent means (para.44); and writers and artists (para.45). By paragraph 1 of the Rules "public funds" includes housing under Part III of the Housing Act. A relative of a person seeking entry may be asked to give an undertaking in writing to be responsible for that person's accommodation (para.20).
The effect of these provisions is that there are broadly two classes of illegal immigrants with which a local housing authority may be concerned. First, those who enter the country clandestinely, without going through immigration control; they obtain no sort of leave to enter. It is common ground that no duty is owed to such persons by the Housing Authority under the 1985 Act. It is not suggested that the paragraphs of the Code which are in question relate to such persons. Secondly, there are those who obtain leave to enter as a result of false and deceitful statements about the availability of accommodation in this country. A typical example occurs in the case of a man who is settled here, but is living in one room; he wishes his wife and children, who are frequently numerous, to join him. They will only be granted leave to enter on the faith of a representation that there is adequate accommodation available provided by the husband. On arrival here it is plain that the accommodation is hopelessly inadequate and the family is homeless; because there are young children they are in priority need. If the housing authority are under a duty to them, then they must secure that suitable accommodation is made available to them.
Here too there is a measure of agreement between the parties. First, it is clear that if the immigration authorities have decided that such a person is an illegal entrant, then subject to any review of this decision by the courts, the local housing authority owes no duty to him or her under Part III of the Housing Act. Secondly, not only is there nothing in either of the Acts or Rules to prevent the housing authority making enquiries as to what statements, representations or undertakings were given in relation to accommodation by or on behalf of the applicant, but it is its duty to do so. These inquiries may include inquiries of the Home Office. Thirdly, if as a result of these enquiries the housing authority suspect that the applicant is an illegal entrant not only is there nothing to prevent the authority from informing the immigration authorities of their suspicion and the grounds for it, but it would be its duty to do so. So much is common ground and it is not now, if it ever was, suggested that the guidance in paragraph 4.11 of the Code which advises the authority to treat as confidential information received on the applicant's immigration status, in any way precludes such action.
The area of dispute is a narrow one, but nevertheless it is of considerable importance to a housing authority in the position of the appellants. Mr. Underwood, on their behalf, submits that not only are Tower Hamlets entitled to investigate whether or not the applicant obtained leave to enter by deceit relating to housing accommodation, but are also entitled to decide that question in the light of their investigation. If they decide that question adversely to the applicant, they have no duty under the Act. If that is the correct view, Mr. Underwood submits that the second sentence of paragraph 4.11 of the Code is at best far from clear and at worst misleading.
Mr. Pannick Q.C., for the Secretary of State, submits that it is not the correct view. He contends that it is for the immigration authorities alone and not the housing authority to decide whether an applicant is an illegal entrant in the sense that he has obtained leave to enter by deception. He based the submission on the following passage from the speech of Lord Bridge of Harwich in the Khawaja case at page 119 where he says:
"Next, I would point out that the process of reasoning which I have suggested as justifying the conclusion that a person who obtains leave to enter by fraud is an illegal entrant avoids the necessity to characterise the leave to enter itself as a nullity. It is for the immigration authorities to decide whether or not to seek to secure the summary removal of an illegal entrant by invoking their powers under Schedule 2. If they do not do so, the leave to enter stands."
The Divisional Court accepted Mr. Pannick's submission; but I do not agree with it. There is nothing in the language of section 33(1) and the definition of illegal entrant which imports into it the opinion of the immigration authorities or the Secretary of State. There is nothing in the Immigration Act or Rules which suggest that it is only enforceable by the immigration authorities. Section 24 of the Act creates...
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