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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> O v London Borough Of Wandsworth [2000] EWCA Civ 201 (22 June 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/201.html
Cite as: [2000] EWCA Civ 201, (2001) 33 HLR 39, [2000] WLR 2539, [2000] 1 WLR 2539, [2000] BLGR 591, [2000] LGR 591, (2000) 3 CCL Rep 237, [2000] 4 All ER 590
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Case Nos: C/1999/0747, C/1999/7342
C/1999/7696
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 22 June 2000
LORD JUSTICE SIMON BROWN
LADY JUSTICE HALE
and
LORD JUSTICE KAY
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`O' |
Appellant | |
- and - |
||
BHIKHA
|
Appellant |
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr S. Knafler (instructed by The Wandsworth & Merton Law Centre Limited) for `O'
Mr M. Supperstone QC & Mr A. Cheshire (instructed by Judge & Priestley of Bromley, solicitors) for London Borough of Wandsworth
Mr Manjit Gill QC & Mr R. de Mello (instructed by Jasvir Jutla & Co. of Leicester LE2 0PF, solicitors) for Bhikha
Mr R. McCarthy QC (instructed by Leicester City Council Legal Services, Leicester LE1 6ZG) for Leicester City Council
Mr M. Bishop (instructed by Treasury Solicitor, London) for Intervenor/Secretary of State for the Home Department
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE SIMON BROWN:
These appeals raise a number of difficult and important questions as to the entitlement of certain immigrants to basic subsistence under the National Assistance Act 1948 (the 1948 Act). Their position must be considered both before and after Part VI of the Immigration & Asylum Act 1999 (the 1999 Act) came into force on 6 December 1999, in particular against the background of the law as it has developed in relation to destitute asylum seekers. The essential questions arising are first, as to the true construction and application of s.116 of the 1999 Act, and second, as to whether certain immigrants, even assuming that they would otherwise be entitled to assistance under the 1948 Act, are nevertheless disentitled from such assistance on the ground that a person cannot take advantage from his own wrongdoing.
With that briefest of introductions let me turn at once to the governing legislation and the developing law.
The National Assistance Act 1948
Section 21(1) of the 1948 Act provides:
"... a local authority, ... to such extent as [the Secretary of State] may direct, shall make arrangements for providing (a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them ..."
Section 21(5) provides:
"References in this Act to accommodation ... shall be construed ... as including references to board and other services, amenities and requisites provided in connection with the accommodation ..."
With effect from 1 April 1993 the Secretary of State published Approvals and Directions under s.21(1) of the 1948 Act directing local authorities among other things, to make arrangements in terms of the sub-section.
Section 47(1) of the National Health Service and Community Care Act 1990 (the 1990 Act) provides:
"Where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority (a) shall carry out an assessment of his needs for those services; and (b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."
Destitute asylum seekers and the 1948 Act
It was held by this Court in R v Westminster CC & Ors ex parte M, P, A & X [1997] 1 CCLR 85 that destitute asylum seekers, deprived by the Asylum and Immigration Act 1996 of all benefit entitlement, could qualify for assistance under s.21. As Lord Woolf MR said:
"The destitute condition to which asylum seekers can be reduced as a result of the 1996 Act coupled with the period of time which, despite the Secretary of State's best efforts, elapses before their applications are disposed of means inevitably that they can fall within a class who local authorities can properly regard as being persons whose needs they have a responsibility to meet by the provision of accommodation under s.21(1)(a). The longer the asylum seekers remain in this condition the more compelling their case becomes to receive assistance under the sub-section. There is nothing remarkable in this since there is no dispute as to their entitlement to treatment from the Health Service and if Parliament has left the entitlement to treatment there is no obvious reason why they should not take the same course as to care and attention under s.21. (p.94)
Asylum seekers are not entitled merely because they lack money and accommodation to claim they automatically qualify under s.21(1)(a). What they are entitled to claim (and this is the result of the 1996 Act) is that they can as a result of their predicament after they arrive in this country reach a state where they qualify under the sub-section because of the effect upon them of the problems under which they are labouring. In addition to the lack of food and accommodation is to be added their inability to speak the language, their ignorance of this country and the fact they have been subject to the stress of coming to this country in circumstances which at least involve their contending to be refugees. Inevitably the combined effect of these factors with the passage of time will produce one or more of the conditions specifically referred to in s.21(1)(a). It is for the authority to decide whether they qualify. ... In particular the authorities can anticipate the deterioration which would otherwise take place in the asylum seeker's condition by providing assistance under the section. They do not need to wait until the health of the asylum seeker has been damaged." (p.95)
Although this Court subsequently held in R v Kensington & Chelsea RLBC ex parte Kujtim [1999] in 2CCLR 340 that the s.21 duty is not absolute, that was in the context of an asylum seeker who, having been assessed as needing residential accommodation and provided by the local authority with bed and breakfast accommodation, then behaved disruptively. Potter LJ said this:
"... the duty of the local authority is not absolute in the sense that it has a duty willy-nilly to provide such accommodation regardless of the applicant's willingness to take advantage of it. ... if an applicant assessed as in need of Part III accommodation either unreasonably refuses to accept the accommodation provided or if, following its provision, by his conduct he manifests a persistent and unequivocal refusal to observe the reasonable requirements of the local authority in relation to the occupation of such accommodation, then the local authority is entitled to treat its duty as discharged and to refuse to provide further accommodation." (p.354)
Later he added:
"To withdraw Part III accommodation in respect of persons with such needs is likely to reduce such persons to living and sleeping on the streets; not only does it tend to defeat the overall purpose of the 1948 Act as well as Community Care, but it produces the socially undesirable effect of increasing rather than alleviating deprivation and encourages return to the practice of begging in the streets." (p.355)
Part VI of the Immigration & Asylum Act 1999
Destitute asylum seekers are now provided for under Part VI of the 1999 Act. As from 6 December 1999, they have their own system of support and no longer need to invoke s.21 of the 1948 Act (save only where their need for care and attention is for more specific reasons than the sort of deterioration through destitution contemplated by the court in the Westminster case). Consistently with this new provision, the 1948 Act has been amended by s.116 of the 1999 Act to include, after s.21(1):
"(1A) A person to whom s.115 of the Immigration & Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under sub-section 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.
(1B) [This provision applies inter alia s.95(3) of the 1999 Act to the new s.21(1A) of the 1948 Act]"
S.95(3) provides that:
"... a person is destitute if -
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met): or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs"
S.115 applies (by sub-section 3) to "a person subject to immigration control" (subject to exceptions not presently material). S.115(9) provides:
"`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;
(b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;
(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or
(d) has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of schedule 4 [i.e. where leave is continued during any appeal from a decision to vary or refuse to vary a limited leave]"
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) if their need arises solely because of the physical effects of actual or anticipated destitution.
Asylum seekers, however, are saved from this harsh new regime. Support will be provided to asylum seekers "who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed" (s.95(1)), and temporary support to those "who it appears to the Secretary of State may be destitute" (s.98(1)). "Asylum seeker" is defined by s.94(1) to mean someone who "has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined". "Claim for asylum" is defined by s.94(1) to mean "a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention, or under Article 3 of the Human Rights Convention, for the claimant to be removed from, or required to leave, the United Kingdom".
Section 94(3) provides:
"For the purposes of this Part, a claim for asylum is determined at the end of such period beginning -
(a) on the day on which the Secretary of State notifies the claimant of his decision on the claim, or
(b) if the claimant has appealed against the Secretary of State's decision, on the day on which the appeal is disposed of,
as may be prescribed."
Section 94(4) provides:
"An appeal is disposed of when it is no longer pending for the purposes of the Immigration Acts or the Special Immigration Appeals Commission Act 1997."
With effect from 2 October 2000, a decision by the Secretary of State to refuse an Article 3 claim for exceptional leave to remain (ELR) will be appealable to the independent appellate authorities. Meantime it is challengeable only by way of judicial review.
The one other category of immigration case which under existing Home Office policy (see Asylum Directorate Instructions for March 1998) ordinarily attracts the grant of ELR and is relevant for present purposes is:
"where there is credible medical evidence that return would result in substantial damage to the physical or psychological health of the applicant ..."
I shall call this ELR on health grounds.
The Facts
Against that essential background let me now sketch in the basic facts of these two appeals (I refer to both as appeals although Mr Bhikha is strictly an applicant, permission to move for judicial review having been granted by the Court of Appeal and the challenge retained in this Court). I need do so only briefly: the points raised are ones of general importance and cannot be decided simply by reference to the individual facts of these cases.
`O'v Wandsworth
`O' is a 40 year old Nigerian woman who came to this country in 1989 and overstayed her leave. Ill-health set in. Her funds ran out in about 1994. She then subsisted on charitable support but that too eventually came to an end. In April 1996 the Home Office made a deportation order against her but did nothing to enforce it: she was suffering from severe depression with psychotic features. In July 1997 she required psychiatric in-patient treatment in hospital and has ever since been regularly reviewed and prescribed medication for her continuing condition. In February 1999 her illness was described as "chronic and relapsing" and it was noted that in addition to her psychiatric problems she has multiple large fibroids within her uterus. On 26 April 1999 those acting for `O'' applied on her behalf to the Home Office for ELR on health grounds. They referred to a psychiatrist's report confirming that if returned to Nigeria `O' would not be able to obtain the medication she required and her mental health would deteriorate rapidly. On 19 May 1999 they wrote to Wandsworth enclosing various medical reports and seeking an urgent assessment of `O' under s.47 of the 1990 Act with a view to immediate assistance under s.21 of the 1948 Act. On 26 May 1999 Wandsworth's solicitor replied in these terms:
"It is my Council's view that their duties and powers to provide community care services are restricted to persons who are in this country lawfully, unless by reason of ill-health or other circumstances beyond their control they are prevented from leaving.
R v Brent LBC ex p D clearly establishes that overstayers are not owed a duty under the National Assistance Act 1948, since they have a choice to leave the UK. If they choose to remain illegally they run the risk of destitution and homelessness and s.21 cannot assist them. However, if such a person is unable to travel without risk of serious danger to his or her health, the law of humanity would render the person eligible for assistance.
As a matter of public policy a person cannot secure an advantage by way of reliance on his or her own wrongdoing. [`O''s] application for assistance is a result of being unlawfully in this country. Your letter and the accompanying reports do not assert [`O'] is too ill to travel. In fact, it appears that in recent times she has been working as a child minder. It appears therefore that there are no factors outside [`O''s] control which prevent her from leaving the UK.
It is noted that you assert that if [`O'] returns to Nigeria there is a serious danger she would kill herself and/or be in conditions subjecting her to acute mental and physical suffering. However, in my Council's view, concerns about the quality of medical care available in Nigeria and speculation about the possible consequences for [`O'] should she return there, are not sufficient grounds to render [`O'] eligible for assistance."
In the result, Wandsworth denied that they owed any s.21 duty to'O' and declined to undertake an assessment of her needs under the 1990 Act.
On 28 May 1999 Jowitt J gave permission to challenge Wandsworth's decision and interim relief pending the hearing. On 22 June 1999 Owen J dismissed the substantive challenge, essentially because of the decision in R v Brent LBC ex parte D [1998] CCLR 241 (to which Wandsworth had referred in their letter and to which I shall have to return). He granted `O' leave to appeal, however, and Wandsworth very properly agreed to continue providing assistance.
Meanwhile `O''s representatives had been pressing the Home Office for ELR on the basis that deportation would expose her to a real risk of inhuman or degrading treatment and so contravene the UK's obligation under Article 3 of ECHR. They relied upon the decision of the ECt HR in D v UK [1997] 24 EHRR 423.
On 2 February 2000 the Secretary of State refused to grant ELR. He expressed himself "satisfied that [`O'] would be able to obtain all the medical treatment and medication that she may require upon her return to Nigeria". `O''s attempt to challenge that decision was initially refused on the documents on 16 March 2000 but at a renewed oral hearing on 9 May the Home Office's representative said that a decision had already been taken on 23 March 2000 to revoke the deportation order and to grant ELR. `O' was granted ELR for one year commencing 18 May 2000. It follows that, save as to costs, `O''s case has become moot. As someone with ELR and not subject to a condition that she will not have recourse to public funds, she is entitled to the same benefits as a UK national. Her case, however, illustrates the very real problem faced by overstayers seeking ELR. By March 2000 the Secretary of State must presumably have been satisfied that a return to Nigeria would have resulted in substantial damage to her health and yet, on the respondent's case, she was never entitled to assistance under the 1948 Act and thus, but for this challenge, would doubtless have been forced to leave the country and forego any prospect of ELR.
Bhikha v Leicester City Council
Mr Bhikha is a 60 year old Kenyan who came to this country on 28 April 1996 and was granted six months leave to enter as a visitor. Two days later he was admitted to the Leicester Royal Infirmary where a tumour was found in his duodenum. On 21 August 1996 he married and in October applied for leave to remain on the basis of his marriage. On 19 March 1997 he underwent a radical resection of a carcinoma in his duodenum. The same day the Secretary of State refused him leave to remain. On 27 January 1998 the Adjudicator dismissed Mr Bhikha's appeal against this refusal (his solicitor having conceded that the appeal must fail because of the appellant's failure to cooperate with the Home Office in answering their questionnaire) but suggested that because of Mr Bhikha's (and his wife's) "serious health problems ... the Secretary of State would perhaps feel it appropriate to allow the appellant to remain in the United Kingdom exceptionally outside the rules."
On 7 July 1998 the Home Office wrote to Mr Bhikha's solicitors stating that the Secretary of State was not prepared to act on the Adjudicator's recommendation and that Mr Bhikha must therefore leave the United Kingdom immediately, failing which he would be liable to prosecution for an offence under the Immigration Act 1971 as amended.
On 20 January 1999 Mr Bhikha's solicitors applied for ELR on health grounds and in subsequent correspondence with Leicester City Council applied for assistance under the 1948 Act, stating:
"Mr Bhikha is a destitute person who is living a hand-to-mouth existence presently. He does not have any income or savings, neither does he receive any benefits. He suffers from recurring cancer of duodenum and requires continuous medical treatment. Due to his medical condition he is unable to work. He does not have a home and lives in mosques."
On 27 April 1999 Leicester stated that they were unable to assist:
"We have taken barrister's advice on the issue of whether we are able to offer food warmth and shelter to people who are not destitute asylum seekers. The advice we have received is that we are only able to assist such destitute people if they are too ill to travel. We have been further advised that `too ill to travel' is taken as being very seriously ill."
Reiterating that refusal by letter of 23 July 1999 Leicester referred to R v Brent LBC ex parte D, noting that although Mr Bhikha's case was that he "would be greatly disadvantaged if he were to return home to Kenya", he did not suggest that he was unfit to make the journey.
The present judicial review application was made on 19 August 1999. On 16 September 1999 Mr Pannick QC, sitting as a Deputy High Court Judge, refused permission to move. On 28 October 1999, however, the Court of Appeal granted permission and reserved the challenge to itself.
On 24 November 1999 the Secretary of State, noting that he had refused Mr Bhikha's application to remain on compassionate grounds, gave notice of his intention to make a deportation order. On 26 November 1999 Mr Bhikha appealed against that decision under s.15(1)(a) of the Immigration Act 1971, as restricted by s.5 of the Immigration Act 1988. Although, however, the appeal is brought solely on the ground that there is in law no power to make the deportation order, there is always a chance that the Adjudicator will make an informal recommendation in the appellant's favour (as occurred earlier in this case) and in any event the appellant cannot be deported whilst the appeal remains outstanding.
Section 116 of the 1999 Act
The decisions to refuse assistance to these two appellants were based, as already indicated, on ex parte D. Now, however, s.116 of the 1999 Act is said to place a yet further obstacle in their path so that it becomes logical to start with this. I come, therefore, to the proper construction and application of the new s.21(1A) of the 1948 Act. What precisely is meant by need arising solely from the physical effects of actual or anticipated destitution? Questions of disqualification for illegality apart, as from 6 December 1999, when s.21(1A) came into effect, were these appellants and others like them entitled to assistance?
`O', of course, as I have explained, is now entitled to benefits. Until March, however, she needed assistance and, of course, Mr Bhikha will remain in need of assistance until his outstanding appeal is decided one way or the other. It may be anticipated that in future all those in the position of these appellants will make their claims for ELR specifically under Article 3 so as to become entitled to support as asylum seekers. That is not to say, however, that their claims on this basis are likely to succeed. The facts of D v UK were highly exceptional - see paragraph 53 of the Court's judgment - and the principle there established - that Article 3 can be breached by deportation even though the immigrant is fit to travel and even though the conditions he would face on return would not themselves amount to a breach of Article 3 standards on the part of his home government - will only rarely apply. It will plainly not extend to the great majority of cases where ELR is sought on health grounds - i.e. where it is said that return would substantially damage the applicant's health - and it is essentially into this category that these appellants' cases fall. And if, of course, an Article 3 claim is refused by the Secretary of State before 2 October, the applicant will cease to be entitled to support as an asylum seeker.
At the outset of the hearing it became plain that the construction of the newly inserted s.21(1A) of the 1948 Act was of central importance on these appeals and that it concerned a great many others than these particular appellants and local authorities. We accordingly invited the assistance of the Secretary of State and we express our gratitude to him for agreeing to be joined as an intervenor and for instructing Mr Bishop to advance argument on the point.
S.21(1A) 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 than 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) 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.
Mr Bishop draws our attention to a number of other sections in the 1999 Act which also restrict access to assistance for those subject to immigration control whose need arises solely from their destitution, most notably s.117(1) (concerning access to old people's welfare facilities by local authorities) and s.117(2) (concerning access to NHS provision by local authorities under the National Health Service Act 1977). Neither these provisions, however, nor other sections (notably ss.117(3), 117(4), 118 and 119) which disqualify from various forms of housing assistance all those subject to immigration control, persuade me to a more draconian construction of the newly created s.21(1A) of the 1948 Act.
As to whether these particular appellants would be (or, in `O''s case, have been) entitled to assistance, that must necessarily depend upon the local authority's assessment of their needs, applying s.21(1A) in the way I have indicated - unless, of course, the appellants are in any event disqualified because they are here illegally and cannot take advantage of their own wrong.
Ex parte D
I turn, therefore, to Moses J's decision in ex parte D which governed the approach of all local authorities to s.21 for the two years up to December 1999, and for which the respondents and the Secretary of State contend there is still room even despite the fresh restrictions imposed on the grant of assistance to immigrants. The particular category whom they would seek to exclude under the ex parte D principle are those whose need does not arise solely from destitution (however that is construed) but who could nevertheless leave this country, and it includes those like these appellants who seek ELR on health grounds.
As the above quoted letters from the respondent local authorities make plain, ex parte D held that, in general, illegal entrants and overstayers are not entitled to assistance under s.21 because they are relying on their own wrongdoing in choosing to remain in the United Kingdom, but that, where they are unfit to travel without the risk of serious damage to their health, then the law of humanity prevails in their favour.
Moses J, having considered a number of the authorities dealing with the principle of not taking advantage of one's own wrongdoing, and having pointed to the criminal offence committed by an immigrant under s.24(1) of the Immigration Act 1971 if, for example, he knowingly overstays his leave, said this:
"In determining whether a person is entitled to claim a statutory benefit the correct test to apply is whether he claims the advantage of the benefits in question in reliance upon his own wrongdoing ... illegal entrants and illegal immigrants fall into a different category from asylum seekers. Asylum seekers have no established right to remain, but pending the determination of their claim for status of refugee, they cannot be said to be here unlawfully in the same way that an illegal entrant or overstayer could be said to be here unlawfully. They have committed no crime. They cannot be said to have a choice to leave because, since the reality of their fear of persecution has not yet been determined, they may, for all anyone can say, be forced to return to a country where there is a risk of persecution. In the same category fall those such as the European national in Castelli [R v City of Westminster ex parte Castelli [1996] 28 HLR 616] and those who cannot be required to leave, pending an appeal under s.14(1) of the Immigration Act 1971. An illegal entrant or overstayer has committed a crime, even if he is awaiting a decision as to whether he may have exceptional leave to remain, that is an extra statutory leave. Thus I find no insuperable difficulties in identifying a public policy which prohibits such persons from claiming benefits in reliance upon their own wrongdoing.
I turn to explain what I mean by `reliance upon their own wrongdoing'. An illegal entrant and an illegal overstayer cannot make a claim for assistance, because in so doing they are compelled to rely upon their own wrongdoing. They have a choice, whether to stay or to leave. By exercising the choice to remain illegally, they run the risk of destitution or homelessness. However, they can submit to removal or deportation, the cost of which may be borne by those who are made responsible for those costs under the immigration legislation (depending on whether they are illegal entrants or illegal overstayers).
In the context of s.21 [of the 1948 Act], I conclude that an applicant cannot claim the assistance for which that section provides in reliance upon his own illegal act. To put it another way, Parliament cannot have intended to confer on an applicant the right to make a claim if he does so in reliance upon his own wrongdoing."
He then turned to what he helpfully called "the law of humanity", and having referred to R v Inhabitants of Eastbourne (1803) 4 East 103, R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1996] 4 AllER 385, and R v Westminster City Council [1997] 1 CCLR 85, said this:
"In my judgment the applicant's right to life and at least a minimum standard of health overrides the principle that a man may not take advantage of his own wrongdoing. Both may be described as different aspects of public policy, both may be in tension, but I cannot conclude that public policy, in its need to preserve the integrity of the law, demands the penalty of loss of life or serious damage to health. If, as I have concluded, it is public policy which forms the basis of the denial of the right to claim assistance, where a claim is made in reliance upon wrongdoing, so too it is public policy which preserves that right where to deny it will cause loss of life or serious damage to health. That aspect of public policy which requires the law to be upheld can be served by the exercise of the Secretary of State's powers of deportation or removal, as envisaged in ex parte Castelli. I emphasise that the fact that such powers exist is of no avail in the case of an illegal immigrant whose life or health are not seriously threatened in the process of removal. I use the words `process of removal' because this case is not [sic] concerned with cases where it is claimed that health will be damaged or death caused on arrival at a particular destination as in D v United Kingdom.
Illegal immigrants have a choice whether to remain and run the risk of hardship by remaining or to leave. This case is concerned with a different situation, namely where it is said that travel will cause that damage or death. In such a case the applicant's choice to submit to removal and thus remove himself from the very circumstance which forms the basis of his claim is impeded by the threat of serious damage to his health or risk to his life."
D in the event was held entitled to claim assistance under s.21 on the basis that, notwithstanding that he was an illegal immigrant, his life or health would be seriously at risk were he to undertake the journey home.
In R v Lambeth LBC ex parte Sarhangi [1999] CCLR 145 (following ex parte D as he was bound to do unless convinced that it was wrong - see R v Greater Manchester Coroner ex parte Tal [1985] QB 67), Kay J (as my Lord then was) held that the public policy exclusion could not apply to Mr Sarhangi since, willing though he was to cooperate in his own removal to Sweden (where, as an Iranian Kurd, he had earlier been granted asylum), the Swedish authorities were refusing to have him back because of his drug-smuggling conviction in the UK. He therefore had no choice but to stay.
D was followed again in each of the present two cases but of course with a different result: here the public policy exclusion was held fatal to their success. The question now arising is whether D was right to hold that a public policy exclusion applies in such cases.
Persuasively though Moses J's judgment reads, I for my part think it wrong. I start with the judge's basic analysis. Essentially he is saying that all those here unlawfully are subject to the public policy exclusion except for those saved by the law of humanity, namely those whose life or health would be seriously threatened by the journey home, or (as in D v UK) by being returned home. The law of humanity avails only those who have no choice but to remain; the rest, if here unlawfully, must suffer hardship or go.
My first difficulty is in understanding why all asylum seekers are said to be here lawfully. As Mr McCarthy QC acknowledged, only those who claim asylum at the port of entry and are granted temporary admission, or who claim asylum during an extant leave, are here lawfully; the rest are here unlawfully albeit, of course, they are irremoveable until their claims have been determined (or they can be returned to a safe third country). Perhaps these should be shifted to the other side of the balance sheet, to be protected by the law of humanity until their fears of persecution are found to be misplaced.
But why should those appealing under s.14(1) of the 1971 Act (and European nationals as in Castelli, and perhaps those such as Mr Sarhangi) be the only ones who, it is suggested, "cannot be required to leave"? As I have observed, Mr Bhikha too cannot be required to leave pending the hearing of his s.15 appeal. Nor, I venture to suggest, would someone who in good faith had claimed ELR on health grounds (even though not putting their case high enough to attract Article 3 protection) be refused injunctive relief by the court were it sought to deport them pending the Secretary of State's decision on their claim. In short, the concept of illegality under the Immigration Act is not an entirely satisfactory one: there is an obvious tension between the sections criminalising conduct such as overstaying and other provisions which, for example, operate to stay removal directions in the event of an appeal. The cases clearly suggest that in deciding whether public policy demands the exclusion of a wrongdoer from some benefit, importance is attached to the particular nature and gravity of the wrongdoing in question. Ex parte D appears to me to overlook this principle.
Why, in any event, one may ask, should the law of humanity be held to stop short of assisting those like these appellants who seek ELR on health grounds? Of course it can be said that in one sense they have the choice of returning home. But take `O''s case. In finally granting her ELR has not the Secretary of State in effect decided that return home was not for her a real choice?
Recognising some of these difficulties in the judgment, Mr McCarthy contended that local authorities should instead conduct a balancing exercise when determining whether or not an applicant in need of assistance should be excluded from benefit. They should weigh the competing considerations of illegality and humanity. Thus the different aspects of public policy would be blended together rather than considered sequentially as Moses J sought to do in ex parte D. Each case would be decided on its overall merits.
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 here dealing, be it remembered, with cases of urgent need and with assistance of last resort. It is one thing to say, as Sir Thomas Bingham MR said in R v Secretary of State for the Environment ex parte Tower Hamlets LBC [1993] QB 632, 643:
"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 any leave. I agree with this view. It would be an affront to commonsense if those who steal into the country by unlawful subterfuge were then to be housed at public expense."
That approach, foreshadowed as it had been in R v Hillingdon LBC ex parte Streeting [1980] 1 WLR 1425 (where it was suggested that overstayers also would be disqualified), is understandable in the context of mere homelessness. After all, as Mr Manjit Gill QC points out, the duty to rehouse the homeless is not itself absolute - considerations such as the 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.
Mr McCarthy invited us to say that because, at an earlier stage of its history, s.21(1) of the 1948 Act included the duty to rehouse the homeless, the Streeting principle should be applied equally to both forms of assistance. I would decline the invitation. So too 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 R v Barnet LBC ex parte Shah [1983] 2 AC 309, 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) refers to "the authority in whose area the person is ordinarily resident". Sub-section (3), however, requires no more than 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) 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) requires - and indeed (as Lord Denning MR envisaged in 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.
On the issue of illegality there is one final point I should mention, an apparently decisive point ingeniously suggested by Mr Knafler at the very end of the hearing. Paragraph 2(6) of the Secretary of State's 1993 Approvals and Directions expressly approved:
"... the making by local authorities of arrangements under s.21(1)(a) of the Act, specifically for persons who are alcoholic or drug-dependent."
As Mr Knafler points out, that approval clearly contemplates support for illicit drug-takers, for example heroin addicts. If applicants of that character are not disqualified by public policy from assistance under the 1948 Act, it is perhaps difficult to see why these appellants should be.
That consideration aside, however, I for my part would hold that this particular benefit is of such a nature that, where otherwise claimable, it should not be withheld on the public policy ground of illegality.
Conclusion
It follows from all this that I would uphold both these challenges, allowing the appeal in `O's' case and granting Mr. Bhikha the judicial review he seeks. The respondent authorities are not, of course, to be reproached: they were simply following ex parte D as they were bound to do. That, however, as I conclude, involves the wrong approach to this benefit. Rather the applicants' needs should have been assessed without regard to their immigration status, with s.21(1A) being applied in the way I have explained once it came into force on 6 December 1999. That now is what must happen in Mr Bhikha's case; `O's' dependence on the 1948 Act ended when she was finally granted ELR.
LADY JUSTICE HALE:
I agree and add a few words only because we are differing from Moses J in R v Brent London Borough Council ex parte D (1998) 1 CCLR 241, which many might think a balanced, humane and sensible approach to conflicting considerations of public policy. In my view, however, there is no such conflict. The National Assistance Act 1948 is about needs, not morality.
The duty of local authorities under s 21(1)(a) of the National Assistance Act 1948 to provide residential accommodation (generally known as Part III accommodation) for people 'in need of care and attention which is not otherwise available to them' was not originally designed as the last refuge of the destitute. It was only one, comparatively minor, component in the strategy of the welfare state created after the second world war to combat the five 'giants on the road of reconstruction': Want, Disease, Ignorance, Squalor and Idleness (see Social Insurance and Allied Services, Report by Sir William Beveridge, 1942, Cmd 6404, para 8).
'Until the mid-1970s it was broadly true that immigration law impinged hardly at all on the provision of benefits and services in the United Kingdom. The post war welfare state doctrine of Beveridge, Bevan and Butler was one of equal access to benefits and services for all those in need regardless of immigration status, and this held fast' (Hugo Storey, "United Kingdom Immigration Controls and the Welfare State" [1984] JSWL 14).
Cash benefits were the primary weapons against Want. These were and remain of three different types, although the benefits and the balance between them in achieving Beveridge's aims are not as he envisaged. First were the contributory cash benefits, such as pensions and unemployment benefit, based on the principles of social insurance. Eligibility for these depended upon meeting the contribution conditions and the criteria for the benefit in question. The requirement to join the national insurance scheme depended upon presence in Great Britain and fulfilling such conditions as might be prescribed as to residence in Great Britain (National Insurance Act 1946, s 1(1)).
Beveridge's social insurance scheme also assumed the provision of non-contributory non- means-tested children's allowances, to supplement the flat rate insurance benefits for those with greater need. These began as family allowances and later merged with child tax allowances to become child benefit. Other non-contributory non-means-tested benefits were later introduced for severely disabled people, attendance and mobility allowance, later disability living allowance, and invalid care allowance. As Ogus, Barendt and Wikeley, in their leading text on The Law of Social Security (4th edition, 1995, p 394) comment, here 'the need to impose limits on the scheme, according to an individual's connection with Great Britain, is more obvious and important'. Disability benefits require both ordinary residence in Great Britain together with presence here for a minimum period before the claim. Child benefit required only presence of both child and claimant for a defined period and with some relaxations for people working abroad.
The safety net for those who were not covered by social insurance was national assistance, a means-tested non-contributory cash benefit, under the National Assistance Act 1948, later to become supplementary benefit and later still income support. Eligibility depended upon need (although the cost might be recouped from 'liable relatives' having a duty to maintain the recipient). Until the 1980s, there was no condition that only a British national or resident was entitled to benefit: mere presence in Great Britain was sufficient (National Assistance Act 1948, s 4; Supplementary Benefits Act 1976, s 1). Ogus and Barendt, in their first edition (1978, p 480), described this as 'exceptionally generous'. They commented that 'a foreign visitor is required by the immigration authorities to have enough resources to cover his own needs, but if for some reason he becomes short of money he would appear to be entitled under section 1 of the Act'. They questioned whether the practice of the Supplementary Benefits Commission to refuse benefit save in unusual cases could be justified by reference to the statutory power to withhold it in 'exceptional circumstances'.
That was soon to change. The Codes of Practice hitherto used by the Supplementary Benefits Commission were translated into regulations and those regulations made specific provision for 'persons from abroad' (see the Supplementary Benefit (Aggregation, Requirements and Resources) Amendment Regulations 1980, SI 1980/1774; and now the Income Support (General) Regulations 1987, SI 1987/1967, reg 21(3) and Sched 7, as frequently amended). These expressly linked entitlement to income support to immigration status, by denying full entitlement to, among others, illegal entrants and over-stayers. These came into effect shortly after a change in immigration rules, which increased the use as a condition of entry that a person did not have recourse to public funds (see Statement of Change in Immigration Rules 1980, HC 394). Certain categories of persons from abroad might however qualify for 90% of benefit as 'urgent cases' (see reg 70(3)). Asylum seekers were so treated until amending regulations in 1996 sought to remove that right from people who failed to claim asylum on arrival or who were awaiting appeal having been refused asylum by the Secretary of State. However, this Court declared those regulations ultra vires in R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275. The Asylum and Immigration Act 1996 thereupon gave express powers to deny both cash benefits to the destitute and housing to the homeless.
Homeless and destitute asylum seekers were thus driven to seek social services to meet their basic needs. Most cash benefits are different from social and other services in that they are an individual entitlement. There are appeal mechanisms to determine the merits of an individual's claim. This was not only true of national insurance benefits, but also of national assistance and supplementary benefit, even when they were still largely determined by discretionary powers and official guidance rather than regulations.
Services, on the other hand, have been provided under general powers and duties imposed upon the service providing or commissioning agencies. There is usually no individual entitlement to receive a particular service and no independent appeal machinery against the merits of any individual refusal or reduction of service. Instead, judicial review has developed to safeguard the legality, rationality and fairness of decision making, while stopping short of requiring the provision of a particular service for a particular individual.
Health, education and social services were provided to attack the giants of Disease and Ignorance. Eligibility for these services depended upon having a need for that service. Health services were at first free of charge irrespective of means, as was primary and secondary school education. A power to impose charges for health care on overseas visitors was conferred by the National Health Service (Amendment) Act 1949 (see now National Health Service Act 1977, s 121), but no regulations were in fact made until 1982 (see Hazel Carty, "Overseas Visitors and the NHS" [1983] JSWL 258).
Eligibility for residential social services, such as child care services and Part III accommodation, also depended upon need. But parents who could afford to do so were expected to pay for their children in care. In contrast to health services and education in school, a deliberate decision was taken to allow local authorities to charge for Part III accommodation (see National Assistance Act 1948, s 22). This was a matter of pride and principle: residents, especially in old people's homes, were to be encouraged to regard such homes as a service, rather than as a modern day equivalent of the old poor law institutions. Many disabled residents, of course, could not afford to pay, especially once these services were opened up to the mentally disordered and disabled following the Mental Health Act 1959. Power to charge was later extended to other social services by the Health and Social Services and Social Security Adjudications Act 1983, s 17.
There was nothing in the legislation establishing these services to suggest that eligibility depended upon nationality or immigration status. Social services are provided by local rather than national authorities, and so the legislation dealt with which local authority was to provide the service or bear the cost. Under the Children Act 1948, for example, the duty to receive a needy child into care applied to any child in the area even though responsibility might be transferred to another local authority where the child was ordinarily resident. The duty to provide accommodation under Part III of the National Assistance Act 1948 applies to people ordinarily resident in the area or present there and in urgent need (see National Assistance Act 1948, s 24(1) and (3); Department of Health Circular No LAC(93)10, Appendix 1, para 2).
Still less was there any suggestion in the legislation of a wider principle of legality. Services were provided for those in need irrespective of whether or not they were to blame for having that need. People who had only themselves to blame for their illnesses or injuries were not to be denied treatment on that account; local authorities are required to provide social services for alcohol and drug abusers.
Of course it would have been open to Parliament to impose such restrictions or qualifications, just as restrictions upon eligibility for cash benefits have now been imposed. The result of doing that was to drive people without any other means of providing for their basic essentials of life to seek help from social services. This Court decided, in R v Westminster City Council and Others, ex parte M, P, A and X (1997) 1 CCLR 85, that people who would not previously have been considered eligible for Part III accommodation, because their need for 'care and attention' arose not from any special characteristics of their own, but from the absence of any other means of support, became eligible. That interpretation of the words 'age, illness, disability or any other circumstances' in section 21(1)(a) is entirely consistent with 'the general approach of Parliament', in its multi-pronged attack upon poverty, disease and ignorance, that 'those who were in need, should not be without all assistance' (see p 93H). The 1948 Act as a whole was originally intended as the safety net for those who fell outside the national insurance scheme. The remaining provisions of the Act could continue to fulfil that role.
The immediate practical effect of the 1996 Act and the Westminster case was that a burden which had previously been shouldered by national government was imposed upon local authorities already hard pressed to meet their obligations to their more conventional clients. It is scarcely surprising that they should have sought for principles which would enable them to limit that responsibility. The decision in ex parte D was the result.
But it cannot have been Parliament's intention to limit eligibility in such a way. There is nothing in the 1948 Act itself to do so: while it is sometimes possible to read 'resident' as 'lawfully resident', this is not invariably so, and there is no reason at all to read such a limitation into the 'urgent need' criterion (as is illustrated by the former use of the 'urgent cases' rules for income support). There is no comparable limitation in the legislation for the provision of health, education and other services for the needy.
Moreover, while Parliament has now legislated to prohibit the provision of specific social services for certain categories of immigrant, it has not legislated to prohibit the provision of other services. Counsel for the Secretary of State accepts that the people to whom s 115 of the Immigration and Asylum Act 1999 applies, and who are excluded from eligibility for Part III accommodation and other adult social services if their need for those services arises solely from destitution or the actual or anticipated physical effects of destitution, may still have access to health services. Their children may still have access to education and child care services.
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 s 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.
Further, as Simon Brown LJ has demonstrated, immigration status is a complex matter. To arrive at a definition of those whose presence here was so questionable as to give rise to an assumption of ineligibility for services would be a difficult task. Should it depend upon whether or not a criminal offence is committed (bearing in mind that the offence in question is not a particularly serious one); or upon whether or not the person concerned can currently be removed from the country immediately (which is more complicated still); or upon whether or not the person currently has a permission to be here which does not preclude his resort to such services? Where does the question of choice between staying and returning come into the equation?
It makes much more sense both in practice and in principle to leave the task of deciding upon need to the provider of health, education or social services, and the task of deciding whether or not a person should be allowed to remain here to take advantage of those services to the immigration authorities. This is subject, of course, to the power of Parliament expressly to limit eligibility to those services where eligibility has previously depended solely upon need. That is what Parliament has now done in the 1999 Act. Significantly, Parliament might have gone even further in denying such services completely, but chose to limit that denial to those whose need arose 'solely' from destitution. This must leave it open to those whose need arises also from other causes to seek such assistance. Section 116 of the 1999 Act must mean just what it says. It makes no sense for the old, the sick or the disabled to be eligible for hospital and other health services but not for the community care services they need.
LORD JUSTICE KAY:
I agree with both judgments.
(Order does not form part of the approved judgment)