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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Arogundade, R (on the application of) v Secretary of State for Business, Innovation and Skills  EWCA Civ 823 (16 July 2013)
Cite as:  EWCA Civ 823,  ELR 466
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ON APPEAL FROM HIGH COURT, QBD, ADMINISTRATIVE COURT
ROBIN PURCHAS QC SITTING AS DEPUTY HIGH COURT JUDGE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE McCOMBE
SIR STANLEY BURNTON
| R (TEMILOLA AROGUNDADE by her fiancé and litigation friend, Trevor André James)
|- and -
|SECRETARY OF STATE FOR BUSINESS, INNOVATION AND SKILLS
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Colin Thomann (instructed by the Treasury Solicitor) for the Defendant/Respondent
Crown Copyright ©
Lord Justice McCombe:
(C) The Law
"An eligible student qualifies for support in connection with a designated course subject to and in accordance with these Regulations ."
Pursuant to Regulations 2(3) and 5, Part 2 of Schedule 1 to the Regulations sets out eleven categories of "Eligibility" for assistance. The regulatory scheme of the eleven categories is to pick out a particular nationality, residence or immigration status, to require an applicant to be ordinarily resident in England on the first day of the first academic year of the course and to require in addition a period of "ordinary residence" in the UK and Islands or (in some cases in the European Economic Area, Switzerland or Turkey in connection with persons who are nationals of those countries) immediately prior to the first day of the first academic year of the course.
"Persons with leave to enter or remain and their family members
5 (1) A person
(a) with leave to enter or remain
(b) who is ordinarily resident in England from the first day of the first academic year of the course; and
(c) who has been ordinarily resident in the United Kingdom and Islands throughout the 3 year period preceding the first day of the first academic year of the course.
(2) A person
(a) who is the spouse of civil partner of a person with leave to enter or remain;
(b) who was the spouse or civil partner of a person with leave to enter or remain on the date on which that person made the application for asylum;
(c) who is ordinarily resident in England on the first day of the first academic year of the course; and
(d) who has been ordinarily resident in the United Kingdom and Islands throughout the 3 year period preceding the first year of the first academic years of the course..."
Paragraph 5(3) deals with spouses, civil partners and children of such persons.
"Person with leave to enter or remain" means a person:
(a) who has been informed by a person acting under the authority of the Secretary of State… that, although the person is considered not to qualify for recognition as a refugee, it is thought right to allow that person to enter or remain in the United Kingdom;
(b) who has been granted leave to enter or remain accordingly;
(c) whose period of leave to enter or remain has not expired and is being renewed and the period for which it was renewed has not expired and in respect of whose leave to enter or remain or an appeal is pending (within the meaning of section 104 of the Nationality, Immigration & Asylum Act 2002); and
(d) who has been ordinarily resident in the United Kingdom and Islands throughout the period since the person was granted leave to enter or remain. "
As the Judge explains, in paragraph 15 of his judgment, while the Appellant did not claim asylum here, and might therefore not appear to fall strictly within this category, there was doubt as to the defensibility of the asylum application requirement in the definition, which was reflected in the disposal by consent of the previous judicial review proceedings to which I have referred above. The Regulations have subsequently been altered. As the Judge records, nothing now turns on this point in the present proceedings.
"….references to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the Immigration laws to any restriction on the period for which he may remain."
Section 33(2) of the same Act provides:
"By section 33(2):
"It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom or in any of the islands at a time when he is there in breach of the Immigration laws."
"(2A) For the purposes of this Schedule a person is not to be treated as ordinarily resident in a place unless that person lawfully resides in that place".
"It shall be the duty of every local education authority subject to and in accordance with regulations made under this Act to bestow awards on persons who are (a) ordinarily resident in the area of that authority…"
The Regulations then provided for this exception:
"An authority shall not be under a duty to bestow awards in respect of a person's attendance at a course (a) upon a person who has not been ordinarily resident throughout the three years preceding the first year of the course in question…"
"…..I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for several purposes as part of the regular order of his life for the time being, whether of short or of long duration. There is, of course, one important exception. If a man's presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence…there is indeed express provision to this effect in the Act of 1971 section 33(2). But even without this guidance I would conclude that it is wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully."
At page 349C, Lord Scarman added:
"The terms of an immigrant student's leave to enter and remain here may or may not throw light on the question: it will, however, be of little weight when put into the balance against the fact of continued residency over the prescribed period-unless the residence is itself a breach of the terms of his leave, in which event his residence, being unlawful, could not be ordinary."
"(a) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (but only if) either of the parties to the marriage … was habitually resident in England and Wales throughout the period of one year ending with [the relevant] date…"
The petitioning wife was a long-term overstayer and the question was whether her residence could be "habitual" for these purposes, even though it was unlawful. The conclusion was that it could be. It was held that the word "lawfully" should not be implied into the section before the word "habitually". Baroness Hale of Richmond who delivered the leading speech said, however, at paragraph :
"…A person who was on the run after a deportation order or removal directions might find it hard to establish a habitual residence here. Such cases will be rare, compared with the large numbers of people who have remained here leading perfectly ordinary lives here for long periods, despite having no permission to do so. The husband's first reaction, to admit that the wife was habitually resident here for the purpose of these proceedings, was obviously correct on the facts of this case. There will, however, be other statutory provisions, in particular those confirming entitlement to some benefit from the state, where it would be proper to imply a requirement that the residence be lawful."
"1. Secretary of State's duty to promote health service- (1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement – (a) in the physical and mental health of the people of England, and (b) in the prevention, diagnosis and treatment of illness."
Section 175(1) and (2) are in these terms:
"Charges in respect of non-residents.-(1) Regulations may provide for the making and recovery in such manner as may be prescribed, of such charges as the Secretary of State may determine in respect of the services mentioned in subsection (2).
(2) The services are such services as may be prescribed which are-(a) provided under this Act, and (b) provided in respect of such person not ordinarily resident in Great Britain as may be prescribed.
Regulations made under the Act include the following:
"2. Making and recovery of charges
1. Where an Authority or NHS trust or NHS foundation trust, or a Primary Care Trust provides an overseas visitor with services forming part of the health service, that Authority or NHS trust or NHS foundation trust, or a Primary Care Trust, having determined, by means of such enquiries as it is satisfied are reasonable in all the circumstances, including the state of health of that overseas visitor, that the case is not one in which these Regulations provide for no charge to be made, shall make and recover from the person liable under regulation 7 charges for the provision of those services…"
"Overseas visitor" is defined as "a person not ordinarily resident in the United Kingdom".
"(1) No charge shall be made in respect of any services forming part of the health service provided for an overseas visitor, (a)….or (b) who has resided lawfully in the United Kingdom for a period of not less than one year immediately preceding the time when the services are provided unless this period of residence followed the grant of leave to enter the United Kingdom for the purpose of undergoing private medical treatment or a determination under regulation 6A; or (c) who has been accepted as a refugee in the Untied Kingdom, or who has made a formal application for leave to stay as a refugee in the United kingdom which has not yet been determined; or…"
"….The crucial aspect of the Ex p Shah test in our case is the 'important exception, namely that if his presence in the country is unlawful, for example in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence'. Lord Scarman seems to me to give two reasons for this: first, the express provision to this effect in s 33(2) of the 1971 Act (see  above); and secondly, the principle of public policy that the propositus cannot profit from his unlawful act. As the students in Ex p Shah were not in breach of the immigration laws, these observations are obiter, but, nonetheless in my judgment, they command the highest respect."
After a reference to Mark v Mark (supra) Ward LJ continued in paragraph :
" Here the statute in need of construction is the 2006 NHS Act. As set out at  above, the Secretary of State's duty prescribed by s 1 is to continue the promotion in England of a comprehensive health service designed to secure improvement in the health 'of the people of England'. Note that it is the people of England, not the people in England, which suggests that the beneficiaries of this free health service are to be those with some link to England so as to be part and parcel of the fabric of the place. It connotes a legitimate connection with the country. The exclusion from this free service of non-residents and the right conferred by s 175 to charge such persons as are not ordinarily resident reinforces this notion of segregation between them and us. This strongly suggests that, as a rule, the benefits were not intended by Parliament to be bestowed on those who ought not to be here."
The final passage that I would wish to quote from that case is to be found in paragraphs  and :
" The words are to be given their ordinary meaning. Asylum seekers are clearly resident here but is the manner in which they have acquired and enjoy that residence ordinary or extraordinary? Normal or abnormal? Were they detained, then no one would suggest they were ordinarily resident in the place of their detention. While they are here under sufferance pending investigation of their claim they are not, in my judgment, ordinarily resident here. Residence by grace and favour is not ordinary. The words must take some flavour from the purpose of the statute under consideration and, I have set out above, the purpose of the 2006 NHS Act is to provide a service for the people of England and that does not include those who ought not to be here. Failed asylum seekers ought not to be here. They should never have come here in the first place and after their claims have finally been dismissed they are only here until arrangements can be made to secure their return, even if, in some cases, like the unfortunate YA, that return may be a long way off.
 Whereas exceptions affording free medical treatment are made under reg 4(1)(c) of the Charges to Overseas Visitors Regulations for those accepted as refugees and those whose claims for asylum have not yet been finally determined, no exception is made for failed asylum seekers. The public policy considerations which inform Lord Scarman's exception militate against their being allowed to claim the benefits of a free national health service. The result may be most unfortunate for those in ill-health like YA for they may now be at the mercy of the hospitals' discretion whether to treat them or not."
"(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely-(a) because he is destitute; or (b) because of the physical effects, or anticipated physical effects, of his being destitute."
Simon Brown LJ (as he then was) summarised the effect of the legislation in these terms:
"The effect of all this is that (i) overstayers or illegal entrants, (ii) persons here with leave but with a condition of no recourse to public funds or following a maintenance undertaking, and (iii) those who are appealing against a decision to vary or refuse to vary limited leave (in each case whether or not asylum seekers), have no access to assistance under s 21 (1) of the 1948 Act if their need arises solely because of the physical effects of actual or anticipated destitution."
The learned Lord Justice then summarised the conundrum arising, the rival contentions and his solution as follows:
"Section 21 (1A) of the 1948 Act necessarily predicates that there will now be immigrants with an urgent need for basic subsistence who are not to be provided for anywhere in the welfare system. Parliament has clearly so enacted and so it must be. The excluded cases are, of course, those where the need arises solely from destitution as defined.
In what circumstances, then, is it to be said that destitution is the sole cause of need? The respondents contend that the approach should be this. First ask if the applicant has (a) somewhere to live ('adequate accommodation') and (b) means of support (the means to 'meet his other essential living needs'). Assuming the answer is 'no' to each of those questions, ask next whether, but for those answers, he would need s 21 assistance. If not, he does not qualify. In other words, it is only if an applicant would still need assistance even without being destitute that he is entitled to it.
The appellants contend for an altogether different approach. They submit that if an applicant's need for care and attention is to any material extent made more acute by some circumstance other that the mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include, of course, age, illness and disability, all of which are expressly mentioned in s 21 (1) of the 1948 Act itself. If, for example, an immigrant, as well as being destitute, is old, ill or disabled, he is likely to be yet more vulnerable and less well able to survive than if he were merely destitute.
Given that both contended for constructions are tenable, I have not the least hesitation in preferring the latter. The word 'solely' in the new section is a strong one and its purpose there seems to me evident. Assistance under the 1948 Act is, it need hardly be emphasised, the last refuge for the destitute. If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled."
"So to would I reject Mr McCarthy's submission that, because the applicant's physical presence in their area is a statutory precondition of a local authority's liability to make provision (see s 24(1) and (3) of the 1948 Act), we should apply Lord Scarman's approach in Shah v Barnet London BC  1 All ER 226 at 235,  2 AC 309 at 343: 'If a man's presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence…' True it is that s 24 (1) of the 1948 Act refers to 'the authority in whose area the person is ordinarily resident'. Subsection (3), however, requires no more that that the applicant be in the local authority's area with an urgent need of residential accommodation.
Overriding all these arguments is to my mind the consideration I have already stressed, that s 21(1) of the 1948 Act affords the very last possibility of relief, the final hope of keeping the needy off the streets. Not even illegality should to my mind bar an applicant who otherwise qualifies for support. For my part I would hold that the local authority has no business with the applicant's immigration status save only for the purpose of learning why the care and attention 'is not otherwise available to them' as s 21(1) of the 1948 Act requires-and indeed (as Lord Denning MR envisaged in Ex p Streeting) for reporting such applications to the immigration authorities if they conclude that the Home Office is unaware of their unlawful presence here. In my judgment, however, it should be for the Home Office to decide (and ideally decide speedily) any claim for ELR and to ensure that those unlawfully here are promptly removed, rather than for local authorities to, so to speak, starve immigrants out of the country by withholding last-resort assistance from those who today will by definition be not merely destitute but for other reasons too in urgent need of care and assistance."
Hale LJ (as she then was) in the course of a concurring judgment, from which we were referred to a number of passages, said this:
"….there is no general principle of legality excluding certain people from access to social services, as opposed to specific statutory provisions which may do so."
"54. Whether conduct will on public policy grounds disentitle a person from relying upon an apparently unqualified statutory provision must be considered in context and with regard to any nexus existing between the conduct and the statutory provision. Here, the four-year statutory periods must have been conceived as periods during which a planning authority would normally be expected to discover an unlawful building operation or use and after which the general interest in proper planning control should yield and the status quo prevail. Positive and deliberately misleading false statements by an owner successfully preventing discovery take the case outside that rationale."
"54. It follows that the question that the Judge ought to have addressed, but did not, is the real question , as explained above, as to whether the public policy imperative that a man should not benefit form his wrongdoing does require that lawfulness be implied as determined by the Judge.
55. The Appellant submits that, following Welwyn, it does not. Before disentitling a person to the benefit of a statutory provision on the grounds of their conduct (or adopting an implied interpretation of words of a statute which creates such a blanket disentitlement on the basis of a person's conduct), a decision-maker must have regard to two matters:
(i) Whether the conduct bears directly upon the statutory regime in question; and
(ii) The nature and gravity of the conduct said to justify disentitling him as a mater of public policy.
56. In the instant case, the Judge failed to address either question."
I return to these submissions below.
(D) The Judgment of the Deputy Judge
(E) The arguments on the appeal
"1455: Illegality:…Unless the contrary intention appears, an enactment by implication…imports the principle of legal policy embodied in the maxim nullus commodum capere potest de injuria sua propria (no one should be allowed to profit from his own wrong."
(5th edn, Vol 96(5) (2012)"
He relied upon a passage to similar effecting Bennion on Statutory Interpretation 5th Edn. (2008) section 264, pp. 792-5.
Sir Stanley Burnton:
Lord Justice Longmore: