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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Arogundade R (on the application of) v Secretary of State for Business, Innovation & Skills [2012] EWHC 2502 (Admin) (07 September 2012) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2012/2502.html Cite as: [2012] EWHC 2502 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(SITTING AS A DEPUTY HIGH COURT JUDGE)
____________________
THE QUEEN (on the application of Temilola Arogundade by her fiancé and litigation friend, Trevor André James) |
Claimant |
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- and - |
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SECRETARY OF STATE FOR BUSINESS, INNOVATION & SKILLS |
Defendant |
____________________
Colin Thomann (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 4 September 2012
____________________
Crown Copyright ©
Robin Purchas QC :
Introduction
Background facts
Legislative framework
"(1) An eligible student qualifies for support in connection with a designated course subject to and in accordance with these Regulations.
(2) Subject to paragraph 3, a person is an eligible student in connection with the designated course if in assessing that person's application for support, the Secretary of State determines that the person falls within one of the categories set out in Part 2 of Schedule 1.
(3) A person ("A") is not an eligible student if
...
(d) A is in breach of any obligation to repay any loan
...
(f) A has, in the opinion of the Secretary of State, shown by A's conduct that A is unfitted to receive support.
…"
Paragraphs 11 to 13 of Regulation 5 provide for termination of eligibility in the event that the relevant person ceases to qualify.
"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 or 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 year of the course ..."
Paragraph 5(3) makes similar provisions for the child of a person with leave to enter or remain or of their spouse or civil partner.
" '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."
"Refugee" is defined as a person recognised as a refugee within the meaning of the United Nations Convention relating to the Status of Refugees.
"... 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."
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."
Legal authority
"(1) 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 (a) are ordinarily resident in the area of the authority ..."
Under the relevant regulations, the following exception was made:
"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 ..."
It will be seen accordingly that the structure of the statutory scheme in this respect is similar to the requirements under the 2009 Regulations with which I am concerned.
"Two questions of statutory interpretation, therefore, arise. The first is: what is the natural and ordinary meaning of 'ordinary residence in the United Kingdom' ...? The second is: does the statute in the context of the relevant law against the background of which it was enacted, or in the circumstances of today, compel one to substitute a special, and, if so, what, meaning to the words 'ordinarily resident in the United Kingdom'?"
He answered the questions that the words were to be given their natural and ordinary meaning and that there was no reason to substitute a special meaning.
"... 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."
Lord Scarman went on to deal with the characteristics of voluntary residence and settled purpose.
"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 that date."
"31. My Lords, I do not consider that there is any need to found our decision upon theHuman Rights Act
1998. It is quite clear that Lord Scarman regarded the question he was answering as one of statutory construction. … The two cases cited by Lord Scarman in support of the proposition that residence must be lawful were both immigration cases ...
32. Indeed, it is scarcely surprising that, in giving immigration rights to people ordinarily resident here, Parliament should exclude those who were here in breach of immigration control. ... As Lord Scarman mentioned, the 1971 Act contains an express provision in section 33(2) that a person is not to be treated for the purpose of any provision in that Act as ordinarily resident in the United Kingdom at a time when he is there in breach of immigration laws. It is scarcely surprising, therefore, that the Court of Appeal considered the new provision in the British Nationality Act 1948 in the same way.
33. It is common ground that habitual residence and ordinary residence are interchangeable concepts ... the question is whether the word 'lawfully' should be implied into section 5(2) of the 1973 Act. I see no reason to do so. ..."
"I conclude, therefore, that residence for the purpose of section 5(2) of the 1973 Act need not be lawful residence. The question of whether the residence is habitual is a factual one which should be answered by applying the test, derived from the 1928 tax cases, laid down by Lord Scarman in (Shah). It is possible that the legality of a person's residence here might be relevant to the factual question whether that residence is "habitual". 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."
"…The crucial aspect of the ex p Shah test in our case is the 'important exception namely that if his presence in this country is unlawful for example in breach of immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence.' Lord Scarman seems to me to give two reasons for this: firstly, the express provision to this effect in section 33(2) of the 1971 Act ...; 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 immigration laws, these observations are obiter, but, nonetheless in my judgment, they command the highest respect. ...
55. Here the statute in need of construction is the 2006 NHS Act. As set out at paragraph 8 above, the Secretary of State's duty prescribed by section 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 section 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."
He continued at paragraph 61:
"61. 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, as I set out above, the purpose of the new 2006 NHS Act is to provide a service to 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.
62. Whereas exceptions affording free medical treatment are made under (the 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 hospital's discretion whether to treat them or not."
"(1) The local authority (empowered) under this part of the Act to provide residential accommodation for any person shall subject to the following provisions of this part of this Act be the authority in whose area the person is ordinarily resident. …
(3) Where a person in the area of a local authority … not being ordinarily resident in the area of the local authority is in urgent need of residential accommodation under this part of this Act the authority shall have the like (power) to provide residential accommodation for him as if he were ordinarily resident in their area."
Thus, as pointed out by Lord Justice Simon Brown as he then was at page 603F, the requirement under section 24(3) was simply that the applicant was present in the local authority's area with an urgent need of residential accommodation.
"Attractive though at first blush such an approach might appear, I regard it as both unworkable in practice and offensive to the principle of legal certainty, a principle of particular importance in the present context. We are dealing be it remembered with cases of urgent need and with assistance of last resort. It is one thing to say, as Bingham MR said in R v SSE ex parte Tower Hamlets LBC [1993] 3 All ER 439 at 447 ... "it is common ground that housing authorities owe no duty to house those, homeless or not, priority need or not, who require leave to enter and illegally enter without leave. I agree with this view. It would be an affront to common sense if those who steal into the country by unlawful subterfuge were then to be housed at public expense." That approach, ... is understandable in the context of mere homelessness. After all ... the duty to rehouse the homeless is not itself absolute – considerations such as particular vulnerability of the applicant and his "intentionality" are also in play. It seems to me quite another thing to apply the same inflexible approach to a welfare scheme of last resort. ... Overriding all these arguments is to my mind a consideration I have already stressed that section 21(1) to 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 section 21(1) of the 1948 requires ... In my judgment however it would 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."
"I conclude therefore that 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. This is scarcely surprising. Local social services authorities are skilled at assessing need and arranging the appropriate services. That is their statutory duty under section 47 of the Community Care Act 1990. It is also the professional skill of social workers. They are not and never have been professionals in making moral judgments as between particular people with identical needs. They have no particular skills or facilities for assessing whether or not a person is subject to immigration control or has a real choice about whether or not to return to his home country. It is the Secretary of State, through the Immigration and Nationality Directorate, who knows the individual's immigration status, has routine access to the local country information which might make such judgments possible, and has the power to determine whether or not a person should be allowed to remain here and to remove him if he should not."
Lord Justice Kay agreed with both judgments.
Submissions
Consideration
Conclusion
Note 1 For convenience I will refer to the individual categories by their paragraph number in the schedule. [Back] Note 2 Domicile and Matrimonial Proceedings Act 1973 s 5(2) [Back] Note 3 National Health Service (Charges to Overseas Visitors) Regulations 1989 reg 1(2) [Back] Note 4 [2006] 1 AC 98 at para 31 [Back] Note 5 [2006] 1 AC 98 para 36 [Back] Note 6 [2000] 4 All ER 590 at p 603A [Back]