R (Couronne) v Crawley Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Thomas,Lord Justice Ward |
| Judgment Date | 02 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1086 |
| Docket Number | Case No: C1/2006/1793/1795 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 November 2007 |
[2007] EWCA Civ 1086
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Mr Justice Bennett ,
sitting in the Administrative Court of the Queen's Bench Division
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Thomas and
Lord Justice Wall
Case No: C1/2006/1793/1795
Rabinder Singh QC and Simon Cox (instructed by Messrs Ole Hansen & Partners) for the 1st and 2nd Appellants
William Okoya (instructed by Ann-Maria Brown, Head of Legal Services) for the 1 st Respondent in the First Appeal
John Howell QC and Tim Ward (instructed by The Office of the Solicitor – Department of Works and Pensions) for the 2 nd and 3 rd Respondents in the First Appeal and for the 1 st Respondent in the Second Appeal
Hearing dates : 9th and 10th July 2007
Judgement
Introduction: a summary of the issues before the judge and in this court
In a judgment handed down on 30 June 2006, Bennett J, sitting in the Administrative Court of the Queen's Bench Division, dismissed two applications for judicial review in which the two groups of appellants in this court were the claimants. With his permission, they now appeal against that decision.
I am content to take my summary of the main issues arising in these two appeals from the opening paragraphs of the helpful skeleton argument for the appellants provided by Mr. Rabinder Singh QC and Mr. Simon Cox. They state: —
These two appeals arise from a single judgment of Bennett J.
(1) The appellants are all British Citizens whose origins are in the Chagos Islands in the Indian Ocean which constitutes the British Indian Ocean Territory (BIOT). The people of the Chagos Islands call themselves Chagossians. The 31 appellants came to the United Kingdom in 2004 as part of a larger group of Chagossians. They were refused income based jobseekers allowance ( JSA) and homelessness assistance on the ground that they did not meet the requirement in secondary legislation to be habitually resident in the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands. This requirement is in addition to the requirement that the claimant be present in the United Kingdom.
(2) The appellants claimed judicial review of the refusal to exempt them from the habitual residence test. They argued that the refusal was:
(a) irrational; and / or
(b) discrimination on grounds of ethnic or national origins which is prohibited by:—
(i) the Race Relations Act 1976 (RRA 1976); and / or
(ii) Article 14 of the European Convention on Human Rights (ECHR) read with Article 1 of the First Protocol (hereinafter Article 1–1) and/or Article 8.
(3) The basis of the discrimination claim is that, because a person arriving in the United Kingdom meets the habitual residence requirements if s/he has been resident in Ireland, that requirement indirectly discriminates within persons who have recently arrived in the UK between (A) British Citizens of Irish ethnic or national origin (who are disproportionately likely to be brought within the requirement by its application to Ireland) and (B) British citizens of Chagossian ethnic or national origin (who are very unlikely to be benefit (sic) from the test's application to Ireland).
(4) The appellants brought proceedings by way of judicial review in the Administrative Court because there was no other forum with jurisdiction to determine all of the claims made.
Mr. Singh and Mr. Cox point out in a footnote that the appellants sought relief by way of judicial review, firstly because the Social Security Appeals Tribunal is not empowered to make a finding of unlawful racial discrimination; and, secondly, whilst the county court can entertain proceedings under RRA 1976 regarding JSA, it has no jurisdiction to find that the JSA regulations are unlawful. No point was taken either here or below on the appellants' use of judicial review, and both the judge and this court were invited to deal with the two cases as applications to quash the Secretary of State's refusal to exempt the appellants from the habitual residence test.
So far as what I will identify as “the rationality argument” is concerned, the appellants' cases struck me as what can properly be described as straightforward applications for judicial review, to which the normal public law criteria apply. In relation to the discrimination aspect of the claim, however, the Secretary of State's application of the habitual residence rule would only be unlawful if it amounts to an act of discrimination. Thus both the judge and this court were invited to find, first and foremost, that the habitual residence rule discriminated against the appellants under RRA 1976 (as amended). Alternatively, however, the appellants' fall back position was that the rule breached their rights both (a) under ECHR; and (b) under Council Directive 2004/43/EC (the Race Directive) made pursuant to the Treaty establishing the European Community (the Treaty).
For my part, I am also prepared to decide these appeals on the basis that what Mr. Singh and Mr. Cox say about the appellants in the following paragraphs of their skeleton argument is correct:—
8. The appellants are Chagossians. Until 2002 they were British Dependent Territories Citizens (BDTCs) with no right of abode in the UK. Under the British Overseas Territories Act 2002, all BDTCs became British Citizens, and accordingly the appellants now have the right of abode in the UK.
9. The appellants came to the United Kingdom in two groups, arriving on 8 and 24 October respectively. They came to the United Kingdom to escape the impoverished conditions in which they were living in Mauritius. In June 2004 they had again been prohibited by Order in Council from returning to their homeland.
10. Soon after their arrival, the appellants claimed JSA in order to buy food and necessaries until they had found work. The Couronne et al appellants applied for homelessness assistance from Crawley Borough Council: the other appellants were accommodated by a different council. These benefits were denied on the sole ground that the appellants were not habitually resident in the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands.
11. The appellants issued these claims and secured interim relief. They also exercised their right of appeal from the refusals of JSA to the (Social Security) Appeal Tribunal. The appeal tribunal allowed their appeal. However, the Secretary of State for Work and Pensions appealed and the Social Security Commissioner held that the appeal tribunal's decision was perverse.
12. The appellants are now habitually resident in the United Kingdom: many of them are currently in work. However, the appellants sought a ruling by the Administrative Court on the substantive issues because:—
(a) until Chagossians are able to return to their homeland, others will wish to come to the United Kingdom. The issues arising affect them;
(b) jurisdiction over the appellants' point under RRA 1976 is confined to judicial review (or county court proceedings). If the Secretary of State succeeds in his appeal to the Social Security Commissioner, then JSA for the initial period of the appellants' residence will be denied without consideration of the RRA 1976 point.
The parties to the proceedings and their representation
As both appeals raised identical issues, both groups of appellants were represented before us by Mr. Singh and Mr. Cox (the latter having appeared for them before the judge). Equally, although the Secretary of State for Work and Pensions was a respondent to both applications for judicial review, and the First Secretary of State was a respondent to the second application, their interests did not diverge, and they were represented by Mr. John Howell QC and Mr. Tim Ward, both of whom had also appeared before the judge. For ease of reference, I propose henceforth to merge the two departments under the single designation of “the Secretary of State”. The two local authorities concerned likewise had identical interests, and Crawley Borough Council represented before us by Mr. William Okoya (who had also appeared before the judge).
We are grateful to all counsel for compressing complex arguments into the one and a half days set aside for the hearing of the two appeals. Inevitably, at the conclusion of the argument, we reserved judgment. Regrettably, as the case was heard towards the end of the summer term, this has meant that our decision would not be available to the parties until the Michaelmas term.
The historical background
As will be apparent from the summary provided by Mr. Singh and Mr. Cox, these two appeals constitute a further, albeit somewhat differently focused, chapter in the unhappy history of the relationship between the British Government and former inhabitants of the BIOT. That history has been retold several times in previous proceedings, and has only a limited relevance to the current appeals. The diligent reader will find it set out; (1) in the decision of the Divisional Court in Regina (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs and another [2001] QB 1067 ( Bancoult 1); (2) in the decision of Ouseley J in Chagos Islanders v. The Attorney-General and Her...
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CSPC 677 2007
...by rulings of superior Courts in the domestic curial hierarchy.” Thereafter, I was referred to Couronne & Others v. Bontemps & Others [2007] EWCA Civ. 1086. In that case, at page 110, Lord Justice Wall “110. After a detailed consideration of the authorities, the judge concluded in relation ......