![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Yesiloz v London Borough of Camden & Anor [2009] EWCA Civ 415 (20 May 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/415.html Cite as: [2009] EWCA Civ 415 |
[New search] [View without highlighting] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOCIAL SECURITY COMMISSIONER
MR COMMISSIONER ROWLAND
Strand, London, WC2A 2LL |
||
B e f o r e :
LADY JUSTICE SMITH
and
LORD JUSTICE WALL
____________________
Gulhanim Yesiloz (formerly known as Gulhanim Aykac) |
Appellant |
|
- and - |
||
London Borough of Camden |
Respondents |
|
- and - |
||
Secretary of State for Work and Pensions |
Intervener |
____________________
Mr Paul Stagg (instructed by Head of Legal Services, London Borough of Camden) for the Respondents
Ms Emma Dixon (instructed by the Solicitor to the Department for Work and Pensions) for the Intervener
Hearing date : 01 May 2009
____________________
Crown Copyright ©
Lord Justice Pill :
The facts
The statutory scheme
"(3) This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed.
(4) Regulations under subsection (3) may provide for a person to be treated for prescribed purposes only as not being a person to whom this section applies.
. . .
(9) 'A person subject to immigration control' means a person who is not a national of an EEA State and who-
(a) requires leave to enter or remain in the United Kingdom but does not have it."
On behalf of the appellant, Mr Berry accepted that the appellant was a person subject to immigration control within the meaning of the section. At the material time, she required leave to remain and did not have it.
(1) A person with limited leave to enter or remain on the basis of there being no need for recourse to public funds but who is temporarily without funds because remittances from abroad have been disrupted and there is a reasonable expectation that the supply of funds will be resumed.(2) A person with leave to enter or remain upon an undertaking by another person to be responsible for his maintenance and accommodation and the person who gave the undertaking has died.
(3) A person with leave to enter or remain upon such an undertaking who has been resident for at least 5 years from the date of entry or the date on which the undertaking was given, whichever date is the later.
I cite paragraph 4 verbatim: "A person who is a national of a state which has ratified the European Convention on Social and Medical Assistance (done in Paris on 11th December 1953) ["ECSMA"] or a state which has ratified the Council of Europe Social Charter (signed in Turin on 18th October 1961) and who is lawfully present in the United Kingdom".
"Each of the Contracting Parties undertakes to ensure that nationals of the other Contracting Parties who are lawfully present in any part of its territory to which this Convention applies, and who are without sufficient resources, shall be entitled equally with its own nationals and on the same conditions to social and medical assistance (hereinafter referred to as 'assistance') provided by the legislation in force from time to time in that part of its territory."
"(1) A person from abroad who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable . . .
(2) In paragraph (1), 'person from abroad' means, subject to the following provisions of this regulation, a person who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
(3) No person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3A).
The Commissioner's decisions
"Mr Berry also submitted that, even if I was against him on his first point, an asylum-seeker in the position of the present claimant does have a right to reside in the United Kingdom. He accepted that not all those lawfully present in the United Kingdom would have such a right and he gave as one instance an overstayer given temporary admission pending deportation who, he accepted, would not have a right of residence. The present claimant he distinguished on the basis that (i) he had a right to remain until his refugee status was determined, that (ii) he had been granted temporary admission (unlike most EEA nationals not exercising rights of residence), that (iii) he was lawfully present as a person who had been temporarily admitted and that (iv) express provision was made in the 2000 Regulations in respect of nationals of states that had ratified ECSMA. Ms Dixon [counsel for the Secretary of State], on the other hand, relied upon Abdirahman [Abdirahman v Secretary of State for Work and Pensions [2007] EWCA Civ 657; [2008] 1 WLR 254]. In that case, the Court of Appeal clearly drew a distinction between rights of residence and rights of admission. The latter clearly imply rights to be present (see Szoma) and I do not accept that any relevant distinction is to be drawn between asylum-seekers granted temporary admission and EEA nationals exercising rights of admission under EC law and the EEA Agreement. If the former receive more formal decisions from immigration officers, that is only because in the absence of such decisions they do not have any rights of presence without being detained and so they need the decisions as evidence of their rights to be at liberty in the United Kingdom. The rights to be admitted possessed by EEA nationals arise from their possession of an appropriate identity card or passport and so no further evidence or decision is required. The 2000 Regulations are irrelevant because they are concerned with rights to benefit rather than the immigration status of those affected by them. Nothing Mr Berry has submitted has persuaded me to resile from what I said in CIS/1794/2007 (to be reported as R(IS) 3/08). I am quite satisfied that the claimant had no right of residence in the United Kingdom before she was granted leave to remain in the United Kingdom."
"It is quite impossible to imply an exception in relation to nationals of states that have ratified ECSMA. It is simply wrong to assert, as the claimant's former representatives have in this case, that the purpose of restricting entitlement to those with a right to reside in the United Kingdom was to limit entitlement in relation to those coming from the "A8 states" who acceded to the European Union in 2004. Separate provision was made for them through the Accession (Immigration and Worker Registration) Regulations 2004 (S.I. 2004/1219). The legislation introduced in 2004 had a much wider purpose and was not confined solely to those from within the EEA, although I accept that much of the memorandum published with a report of the Social Security Advisory Committee in Cm 6181 refers to EU citizens, which is no doubt because it was necessary to justify or explain the new legislation in terms of the rights of EU citizens. As Ms Dixon submitted, had it been intended to confine the new legislation to EU citizens, or to exclude from its scope nationals of states that had ratified ECSMA, express provision to that effect would have been made."
Submissions
"The Government believes that it is not unreasonable to expect that, whatever their nationality, people should show that they have a right to reside in the UK before being entitled to benefits funded by the UK tax payer; . . . "
The requirement of a right to reside was, in the event, included in the Regulations.
"It seems to me plain that UK law makes a distinction between a right to reside, which is conferred only on British citizens, certain Commonwealth citizens, qualified persons as defined by the Immigration (European Economic Area) Regulations 2000 and the various additional categories mentioned in the definition of "persons from abroad" such as refugees, those with indefinite leave to remain and those to whom exceptional leave to remain has been granted, on the one hand, and any lesser status, in particular that of an EEA national who is in this country having entered lawfully, has committed no breach of immigration law, but is not a qualified person and therefore does not enjoy the benefit of regulation 14 which confers a "right to reside". Logically, if an EEA national has to be a qualified person to have conferred on him a right to reside, it is not a proper reading of a reference to "right to reside" under UK law to extend it to an EEA national who is not a qualified person."
Lloyd LJ accepted, at paragraph 49, that the Secretary of State's response to the Advisory Committee's report was admissible to show the purpose of the Regulations (paragraph 25 above).
"While they [asylum seekers] 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."
At paragraph 65, Ward LJ considered the concepts of lawful presence and lawful residence. He stated:
"One resides here lawfully when one has the right to do so. An indulgence is granted to a claimant for asylum, not a right, and in this context the word 'lawful' means more than merely not unlawful but should be understood to connote the requirement of a positive legal underpinning. Being here by grace and favour does not create that necessary foundation."
Conclusions
Lady Justice Smith :
Lord Justice Wall :