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Remilien (A.P) v. Secretary of State for Social Security
Lord Hope of Craighead Lord Hutton
For the reasons given in the speech of my noble and learned friend, Lord Hoffmann, I would allow these appeals and restore the orders of Popplewell J. and Mr. Commissioner Mesher.
LORD SLYNN OF HADLEY
Nathalie Remelien, a French national, came to this country in 1989 or 1990 from Martinique to look for work. There seems to be some doubt as to precisely when she came and when she first received Social Security benefits in the United Kingdom (neither of which date is directly relevant) but it is accepted that she received income support from June 1992 until 8 December 1993 for herself and her two children following separation from her partner. By letter dated 8 December 1993 she was told that although she was entitled to enter and remain in the United Kingdom in order to exercise Treaty rights conferred by the Treaty of Rome, "in view of the fact that you are in the United Kingdom in a non-economic capacity and that you will become a burden on public funds, the Secretary of State is not satisfied that you are lawfully resident here under E.C. law and you should now make arrangements to leave the United Kingdom." An adjudication officer of the Department of Social Security decided that she was not any longer entitled to income support by reason of regulation 21(3)(h) of the Income Support (General) Regulations 1987 (S.I. 1987 No. 1967). The details of subsequent proceedings are set out in the judgment of Kennedy L.J. in the Court of Appeal and I do not repeat them. It is sufficient to say that the Home Secretary in 1994 in response to a further application by this appellant said that she had not produced evidence that she had found employment or that she was actively seeking work with a reasonable chance of obtaining it. She failed in her challenge to the removal of income support before the adjudication officer but succeeded on appeal to the Social Security Tribunal and before Popplewell J. on an application for judicial review; in the Court of Appeal the majority decided in favour of the Secretary of State.
Mery Wolke, a Dutch national, apparently came to the United Kingdom in April 1994 with her partner, a British national, and their son born in May 1993. She now contends that she came here as a person who was financially self-sufficient though there are apparently no records to show on what basis she claimed to come as a national of a Member State of the European Community (or of the European Economic Area following the extension in 1992 of the rights of free movement to nationals of States of the European Economic Area). She separated from her partner in November 1994 and thereafter claimed and was paid income support for herself and her son. On 10 April 1995 the Home Secretary sent to her a letter similar to that sent to Nathalie Remelien save that she was referred to as an E.E.A. national and that the letter concluded "I should add that if you do not leave the United Kingdom on a voluntary basis then, in the present circumstances of your case, we will not take steps to enforce your departure from the United Kingdom."
The appeal turns on the proper interpretation of the words "is required by the Secretary of State to leave the United Kingdom" in regulation 21(3)(h) of the 1987 Regulations and on the question whether the relevant letters constituted such a requirement. The word "required" has different shades of meaning and compulsion.
Your Lordships have been given dictionary definitions and examples to show that the word may or may not connote a legal power to enforce what is "required." It plainly depends on the context in which the word is used. It is for that reason necessary to consider the scheme of the legislation providing for income support and the immigration legislation relative to the
"Income Support" is one of the income-related benefits provided for in part VII of the Social Security Contributions and Benefits Act 1992 for which prescribed schemes were to be made by regulation in accordance with section 175 of the Act. Broadly, and subject to exceptions in prescribed circumstances, it is available for a person in Great Britain over the age of 18 who has no income or an income which does not exceed the applicable amount, who is not engaged in remunerative work and who is available for and actively seeking employment but not receiving relevant education. The amount payable is the applicable amount fixed by the Secretary of State (which may be nil) less any income.
The applicable amount in certain special cases is to be the weekly amount prescribed in column 2 of Schedule 7 to the Income Support (General) Regulations 1987 (S.I. 1987 No. 1967) as amended. One of those special cases is "Persons from abroad" in paragraph 17 (other than one of the defined "urgent cases"). For that category the amount prescribed, both for a single claimant and for a lone parent who is a person from abroad, is "nil." "Person from abroad" for the purposes of Schedule 7 is defined in regulation 21(3). It includes e.g. an illegal entrant within the meaning of section 33(1) of the Immigration Act 1971 and who has not subsequently been given leave under that Act to enter or remain within the United Kingdom. An illegal entrant is defined in section 33(1) as including a person unlawfully entering or seeking to enter in breach of "a deportation order or of the immigration laws and included also a person who has entered." Two sub-paragraphs of Regulation 21(3) are of particular relevance for the present case. Thus "person from abroad" includes a person who
The person referred to in sub-paragraph (c) was included in the Regulation as originally made. Sub-paragraph (h) was added by regulation 4 of The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1993 (S.I. 1993 No. 315) with effect from 4 April 1993.
The Immigration Legislation
Prior to the United Kingdom's accession to the European Community a national of one of the Member States, like a national of other states not having a right of abode in the United Kingdom, required leave to enter and remain in the United Kingdom and was subject to such regulation and control as was imposed by the Immigration Act 1971, section 1. Such leave might be of limited or of indefinite duration and subject to conditions restricting employment: section 3. By section 3(2) of that Act, the Secretary of State was empowered to lay before Parliament "statements of the rules laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter." Either House of Parliament before which the statement was laid might disapprove those statements.
A person in breach of a condition of leave or staying beyond the time limited was made liable to a deportation order as was a person who is not a British citizen "if the Secretary of State deems his deportation to be conducive to the public good:" section 3(5)(b). A person convicted of an offence punishable with imprisonment whom a court recommended to be deported could also be deported. The procedure on such a deportation is laid down in sections 5 et seq. of the Act. Section 15 gives leave to appeal against a decision of the Secretary of State to make a deportation order against a person under section 3(5) of the Act.
Following accession European Community law gave certain rights of movement. Thus article 48 of the Treaty of Rome gave to nationals of Member States the right to enter and stay in the territory of other Member States for the purpose of accepting offers of employment actually made. Subsequent Council Directives gave rights to reside in other Member States to students (90/364 E.E.C.), to retired persons (90/365 E.E.C.), and to those who were financially self-sufficient (90/365 E.E.C.).
The United Kingdom in an attempt to comply with the E.C. law adopted the practice of giving leave for a period of normally six months without any condition being imposed restricting employment. In Reg. v. Pieck  Q.B. 571 the European Court held that any formality for the purpose of granting leave, coupled with a passport or an identity card check at the frontier, was contrary to article 3(2) of Directive 68/360 E.E.C. which prohibited Member States from demanding an entry visa or equivalent requirement from community workers. It was further held that a general resident's permit could not be required since the right to enter and reside in the territory of another Member State for the purposes intended by the Treaty is a right conferred directly by the Treaty.
Subsequently by paragraphs 140 and 143 of the Statement of Changes in Immigration Rules (H.C. 169) made by the Secretary of State under section 3(2) of the Act of 1971 and which came into force, having been laid before Parliament, on 9 February 1983, it was provided that a Community national could stay here for six months before applying for a resident's permit and that such a permit would be issued if that person had entered employment. A person could, however, be required to leave the United Kingdom, subject to appeal, if he fell a charge on public funds before issue of a first residents permit or if he had not entered employment by the end of the period.
The legality of this provision as a matter of community law was considered in Reg. v. Immigration Appeal Tribunal, Ex parte Antonissen (Case 292/89)  E.C.R. I-745. The Secretary of State had ordered that A, who had been convicted of drug offences, be deported pursuant to section 3(5)(b) of the Immigration Act 1971 Secretary of State having deemed his deportation to be conducive to the public good.
On the basis of paragraph 143 of H.C. 169 the Immigration Appeals Tribunal ruled that he could no longer be treated as a community worker, and rely on Council Directive (64/221/E.E.C.) of 25 February 1964 (relative to the movement and residence of foreign nationals restricted on grounds of public policy, public security or public health,) since he had not entered employment by the end of the six-month period.
A. challenged this ruling before the Divisional Court which asked the European Court whether for the purpose of determining whether a national of a Member State is to be treated as a "worker" when seeking employment so as to be immune from deportation (save in accordance with Council Directive 64/221 E.E.C.) "the legislature of the second Member State may provide that such a national may be required to leave the territory of that State (subject to appeal) if after six months from admission to that territory he has failed to enter employment?" The European Court held that a person seeking employment was to be regarded as a "worker" but that it was not contrary to community law
The wording of paragraph 143 to which reference has been made was repeated in paragraph 150 of the subsequent Statement of Changes (H.C. 251) laid before Parliament under section 3(2) of the Act of 1971 on 23 March 1990.
Section 7 of the Immigration Act 1988 provided that a person did not require leave to enter or remain in the United Kingdom if he was entitled to do so by virtue of an enforceable community right or of any provision made under section 2(2) of the European Communities Act 1972. The Immigration (European Economic Area) Order 1994 (S.I. 1994 No. 1895), made pursuant to section 2(2) of the Act of 1972, which came into force on 20 July 1994 provided for a right of admission to E.E.A. nationals and for a right of residence for qualified persons without any requirement of leave to remain, qualified persons including under article 6(1)(a) "a worker" and (f) "a self-sufficient person."
The Statement of Changes in the Immigration Rules adopted in 1994 did not apply to E.E.A. nationals entitled to enter by virtue of that order.
By article 15(2) of the 1994 Order an E.E.A. national and a family member of such a person might be removed from the United Kingdom under paragraph (a) on his ceasing to be a qualified person, or under paragraph (b) if his removal is justified on grounds of public policy, public security or public health.
The person might appeal against the decision to remove him:
(ii) if he is a person to whom paragraph (b) applies as if he were entitled to appeal as aforesaid but subject to article 20(2) and section 15(7) of the Act of 1971."
Against the background of this legislation it is accepted and is clear that when the appellants came into the United Kingdom, if they were genuinely looking for work or self-sufficient, they did not need leave under the Act of 1971. They entered by a community law right. They were not "illegal entrants" unlawfully entering, or having entered, in breach of the immigration laws within the meaning of sections 33 of the Act. It is also clear and accepted that until 1994 the only method available to the Executive to remove them from the United Kingdom was by means of a deportation order under section 3(5)(c) of the Act of 1971 if the Secretary of State deemed their deportation to be conducive to the public good.
From 1994 if they ceased to be "a worker" or "a self-sufficient person" they could be removed from the United Kingdom. I do not read the exercise of that power created by article 15 of the 1994 order as amounting to or requiring the making of a deportation order. The words of article 15(2)(i) do no more than give a right to the person, who ceases to be a worker, a right to appeal "as if he were someone in respect of whom the Secretary of State had decided to make a deportation order." He thus has a right of appeal under section 15(1)(a) of the Act of 1971. They do not make him a person in respect of whom a deportation order has been made.
Does the fact that at the time the two letters were written there was no self-standing power to enforce a requirement to leave the United Kingdom, or no power other than in the situation where the Secretary of State thought that deportation was necessary for the public good, necessarily mean that there was no real content to the phrase "required to leave" in regulation 21(3)(h) of the 1987 Regulations until the 1994 Order was made? In my view it does not.