R (Kimani) v Lambeth London Borough Council

This is the judgment of the Court.

On 16 April 2003 Silber J dismissed an application made by the appellant for judicial review. He found against her on two issues. He gave her permission to appeal on one, but refused permission on the other. She sought permission from this court to appeal on the first issue, and on 25 June 2003 Kay LJ directed that the application should be heard at the same time as the substantive appeal. In this way, both the issues are brought before us. The Secretary of State, who has an obvious interest in the issues raised by this case, appeared below and has been represented before us by Miss Richards. Mr Giffin QC, for Lambeth, has however covered the ground so thoroughly that she has had little to add to his submissions.

The facts of this case involve a large number of statutory provisions and we did not find it easy to piece these together from the judgment. At our request the parties agreed a helpful schedule of the relevant provisions and the manner in which they operate, which we shall annexe to this judgment. They throw into question the applicability of some of the provisions referred to in the judgment, but not in any respect which invalidates the judgment.

The facts

The appellant is a Kenyan national who was born on 1 November 1972. She arrived in the United Kingdom on 19 March 1998 with her son who was born in Kenya on 1 November 199She claimed asylum and was granted temporary admission. Her claim was refused. She appealed to a Special Adjudicator, who disbelieved her evidence and rejected her appeal. She applied for permission to appeal to the Immigration Appeal Tribunal. On 1 March 2000 she was notified that her application was refused. An application to apply for judicial review met the same fate.

On 8 May 2000 the appellant married Thomas Doherty, an Irish national with a residence permit. She then applied for permission to reside in this country under Regulation 12 of the Immigration (European Economic Area) Regulations 2000 ('the EEA Regulations') which confers the right of residence on the spouse of an EEA citizen. Rule 2(1) of those Regulations excludes from the definition of a "spouse" a person who has contracted a marriage of convenience. The Secretary of State did not respond until 23 July 2001, when he refused the application on the ground that the appellant's marriage was one of convenience and gave removal directions. The appellant did not and does not accept that her marriage was a marriage of convenience and, on 26 July, appealed against that decision to a Special Adjudicator. It is surprising and regrettable that her appeal has not yet been determined.

While there is an issue as to whether or not the appellant's marriage to Mr Doherty was one of convenience, it is common ground that by the end of 2001 they were living apart. They remain married.

While the appellant's appeal against the refusal to grant her the right to reside here remains outstanding, she retains the right of temporary admission granted to her when she first arrived. She cannot be removed until the appeal has been determined – see Regulations 30(3)(b) and 34(1) of the EEA Regulations. She is, nonetheless, deemed not to have entered the United Kingdom – see section 11 Immigration Act 1971.

The Secretary of State's determination that the appellant's marriage is one of convenience has not merely prevented her from obtaining rights of residence; it has prevented her from obtaining what have been described as 'mainstream benefits', namely Income Support, Housing Benefit and Council Tax Benefit, to which she would otherwise have been entitled.

Although her claim for asylum has been rejected, the appellant remains an 'asylum seeker' for the purposes of Part VI of the 1999 Act, by virtue of section 94(5) of that Act. Asylum seekers are, in specified circumstances, entitled to support under the Asylum Support (Interim Provisions) Regulations 1999, made pursuant to the 1999 Act. In November 2002 the appellant sought such support and was told that she should look for support to Lambeth Borough Council ('Lambeth'), where she lived. She did so and, in December the Lambeth Social Services carried out an initial assessment. This led them to decide to provide modest emergency payments on a weekly basis. On 17 January 2003, however, Lambeth wrote to the appellant stating that they would be unable to provide any further assistance after the end of the month. The reason for this was that, on 8 January 2003, section 54 and Schedule 3 of the Nationality Immigration and Asylum Act 2002 ('the 2002 Act') had come into force.

Paragraph 1(1) of Schedule 3 provides that 'a person to whom this paragraph applies shall not be eligible for support or assistance' under a range of statutory provisions including the National Assistance Act 1948, the Local Government Act 2000 and any provision of the Immigration and Asylum Act 199Paragraph 1(2) of the Schedule prohibits a local authority from the exercise of the power or the performance of the duty to provide support or assistance under the statutory provisions in question to a person to whom paragraph 1 applies.

Paragraphs 4 to 7 of Schedule 3 set out four categories of person to whom paragraph 1 applies and who are consequently ineligible for the specified support and assistance. These are:

"First class of ineligible person: refugee status abroad

(1) Paragraph 1 applies to a person if he-

(a) has refugee status abroad, or

(b) is the dependant of a person who is in the United Kingdom

(2) For the purposes of this paragraph a person has refugee status abroad if-

(a) he does not have the nationality of an EEA State, and

(b) the government of an EEA State other than the United Kingdom has determined that he is entitled to protection as a refugee under the Refugee Convention.

Second class of ineligible person: citizen of other EEA State

Paragraph 1 applies to a person if he-

(a) has the nationality of an EEA State other than the United Kingdom, or

(b) is the dependant of a person who has the nationality of an EEA State other than the United Kingdom.

Third class of ineligible person: failed asylum-seeker

(1) Paragraph 2 applies to a person if-

(a) he was (but is no longer) an asylum-seeker, and

(b) he fails to cooperate with removal directions issued in respect of him.

(2) Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1).

Fourth class of ineligible person: person unlawfully in United Kingdom

Paragraph 1 applies to a person if-

(a) he is in the United Kingdom in breach of the immigration laws within the meaning of section 11, and

(b) he is not an asylum-seeker."

Paragraph 8 of Schedule 3 provides:

"Travel Assistance

The Secretary of State may make regulations providing for arrangements to be made enabling a person to whom paragraph 1 applies by virtue of paragraph 4 or 5 to leave the United Kingdom."

Lambeth ceased providing support to the appellant because they considered that she was 'the dependant of a person who has the nationality of an EEA State other than the United Kingdom', namely Mr Doherty. This conclusion is founded on Paragraph 17(1) of Schedule 3 and Regulations made under it. Paragraph 17(1) provides:

"'dependant' and 'dependent' shall have such meanings as may be prescribed by regulations made by the Secretary of State."

The Secretary of State has made Regulations, which prescribe the meaning of 'dependant' for the purposes of Schedule 3. Regulation 2(2) of the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 ('the Withholding Regulations') provides, insofar as material:

In these Regulations and for the purposes of Schedule 3 to the Act, a "dependant" of a person means a person who at the relevant time-

(a) is his spouse.

Lambeth have refused support, and contend that they have rightly done so, on the ground that the appellant is the 'spouse' of Mr Doherty. The appellant contends that, on the true construction of paragraph 5 of Schedule 3, she is not the 'spouse' of Mr Doherty. Whether she is correct in this contention is the first issue that we have to address.

The prohibition imposed on local authorities from providing support or assistance to the four classes of person identified in Schedule 3 is subject to a proviso. Paragraph 3 of Schedule 3 provides:

"Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of … a person's Convention rights…"

The appellant contends, and Lambeth deny, that it is necessary for Lambeth to provide her with support in order to avoid a breach of her Convention rights. Whether she is correct in this contention is the second issue that we have to address.

The first issue

Silber J. held that the word "spouse" in Regulation 2(2)(a) of...