England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
The Hon Mr Justice Silber

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st July 2003

Lord Phillips MR

This is the judgment of the Court.

1. On 16 April 2003 Silber J dismissed an application made by the appellant for judicial review. He found against her on two issues. He gave her permission to appeal on one, but refused permission on the other. She sought permission from this court to appeal on the first issue, and on 25 June 2003 Kay LJ directed that the application should be heard at the same time as the substantive appeal. In this way, both the issues are brought before us. The Secretary of State, who has an obvious interest in the issues raised by this case, appeared below and has been represented before us by Miss Richards. Mr Giffin QC, for Lambeth, has however covered the ground so thoroughly that she has had little to add to his submissions.
2. The facts of this case involve a large number of statutory provisions and we did not find it easy to piece these together from the judgment. At our request the parties agreed a helpful schedule of the relevant provisions and the manner in which they operate, which we shall annexe to this judgment. They throw into question the applicability of some of the provisions referred to in the judgment, but not in any respect which invalidates the judgment.

The facts

3. The appellant is a Kenyan national who was born on 1 November 1972. She arrived in the United Kingdom on 19 March 1998 with her son who was born in Kenya on 1 November 1993. She claimed asylum and was granted temporary admission. Her claim was refused. She appealed to a Special Adjudicator, who disbelieved her evidence and rejected her appeal. She applied for permission to appeal to the Immigration Appeal Tribunal. On 1 March 2000 she was notified that her application was refused. An application to apply for judicial review met the same fate.
4. On 8 May 2000 the appellant married Thomas Doherty, an Irish national with a residence permit. She then applied for permission to reside in this country under Regulation 12 of the Immigration (European Economic Area) Regulations 2000 ('the EEA Regulations') which confers the right of residence on the spouse of an EEA citizen. Rule 2(1) of those Regulations excludes from the definition of a "spouse" a person who has contracted a marriage of convenience. The Secretary of State did not respond until 23 July 2001, when he refused the application on the ground that the appellant's marriage was one of convenience and gave removal directions. The appellant did not and does not accept that her marriage was a marriage of convenience and, on 26 July, appealed against that decision to a Special Adjudicator. It is surprising and regrettable that her appeal has not yet been determined.
5. While there is an issue as to whether or not the appellant's marriage to Mr Doherty was one of convenience, it is common ground that by the end of 2001 they were living apart. They remain married.
6. While the appellant's appeal against the refusal to grant her the right to reside here remains outstanding, she retains the right of temporary admission granted to her when she first arrived. She cannot be removed until the appeal has been determined – see Regulations 30(3)(b) and 34(1) of the EEA Regulations. She is, nonetheless, deemed not to have entered the United Kingdom – see section 11 Immigration Act 1971.
7. The Secretary of State's determination that the appellant's marriage is one of convenience has not merely prevented her from obtaining rights of residence; it has prevented her from obtaining what have been described as 'mainstream benefits', namely Income Support, Housing Benefit and Council Tax Benefit, to which she would otherwise have been entitled.
8. Although her claim for asylum has been rejected, the appellant remains an 'asylum seeker' for the purposes of Part VI of the 1999 Act, by virtue of section 94(5) of that Act. Asylum seekers are, in specified circumstances, entitled to support under the Asylum Support (Interim Provisions) Regulations 1999, made pursuant to the 1999 Act. In November 2002 the appellant sought such support and was told that she should look for support to Lambeth Borough Council ('Lambeth'), where she lived. She did so and, in December the Lambeth Social Services carried out an initial assessment. This led them to decide to provide modest emergency payments on a weekly basis. On 17 January 2003, however, Lambeth wrote to the appellant stating that they would be unable to provide any further assistance after the end of the month. The reason for this was that, on 8 January 2003, section 54 and Schedule 3 of the Nationality Immigration and Asylum Act 2002 ('the 2002 Act') had come into force.
9. Paragraph 1(1) of Schedule 3 provides that 'a person to whom this paragraph applies shall not be eligible for support or assistance' under a range of statutory provisions including the National Assistance Act 1948, the Local Government Act 2000 and any provision of the Immigration and Asylum Act 1999. Paragraph 1(2) of the Schedule prohibits a local authority from the exercise of the power or the performance of the duty to provide support or assistance under the statutory provisions in question to a person to whom paragraph 1 applies.
10. Paragraphs 4 to 7 of Schedule 3 set out four categories of person to whom paragraph 1 applies and who are consequently ineligible for the specified support and assistance. These are:

"First class of ineligible person: refugee status abroad

(1) Paragraph 1 applies to a person if he-

(a) has refugee status abroad, or

(b) is the dependant of a person who is in the United Kingdom

(2) For the purposes of this paragraph a person has refugee status abroad if-

(a) he does not have the nationality of an EEA State, and

(b) the government of an EEA State other than the United Kingdom has determined that he is entitled to protection as a refugee under the Refugee Convention.

Second class of ineligible person: citizen of other EEA State

Paragraph 1 applies to a person if he-

(a) has the nationality of an EEA State other than the United Kingdom, or

(b) is the dependant of a person who has the nationality of an EEA State other than the United Kingdom.

Third class of ineligible person: failed asylum-seeker

(1) Paragraph 2 applies to a person if-

(a) he was (but is no longer) an asylum-seeker, and

(b) he fails to cooperate with removal directions issued in respect of him.

(2) Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1).

Fourth class of ineligible person: person unlawfully in United Kingdom

Paragraph 1 applies to a person if-

(a) he is in the United Kingdom in breach of the immigration laws within the meaning of section 11, and

(b) he is not an asylum-seeker."

11. Paragraph 8 of Schedule 3 provides:

"Travel Assistance

The Secretary of State may make regulations providing for arrangements to be made enabling a person to whom paragraph 1 applies by virtue of paragraph 4 or 5 to leave the United Kingdom."

12. Lambeth ceased providing support to the appellant because they considered that she was 'the dependant of a person who has the nationality of an EEA State other than the United Kingdom', namely Mr Doherty. This conclusion is founded on Paragraph 17(1) of Schedule 3 and Regulations made under it. Paragraph 17(1) provides:

"'dependant' and 'dependent' shall have such meanings as may be prescribed by regulations made by the Secretary of State."

The Secretary of State has made Regulations, which prescribe the meaning of 'dependant' for the purposes of Schedule 3. Regulation 2(2) of the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 ('the Withholding Regulations') provides, insofar as material:

In these Regulations and for the purposes of Schedule 3 to the Act, a "dependant" of a person means a person who at the relevant time-

(a) is his spouse.

13. Lambeth have refused support, and contend that they have rightly done so, on the ground that the appellant is the 'spouse' of Mr Doherty. The appellant contends that, on the true construction of paragraph 5 of Schedule 3, she is not the 'spouse' of Mr Doherty. Whether she is correct in this contention is the first issue that we have to address.
14. The prohibition imposed on local authorities from providing support or assistance to the four classes of person identified in Schedule 3 is subject to a proviso. Paragraph 3 of Schedule 3 provides:

"Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of … a person's Convention rights…"

15. The appellant contends, and Lambeth deny, that it is necessary for Lambeth to provide her with support in order to avoid a breach of her Convention rights. Whether she is correct in this contention is the second issue that we have to address.

The first issue

16. Silber J. held that the word "spouse" in Regulation 2(2)(a) of the Withholding Regulations should be given its ordinary meaning, as recorded in the New Shorter English Dictionary, that is "a married person; a wife, a husband". He remarked that there was no exclusion in that definition for a marriage of convenience. He was not persuaded by the arguments advanced for giving the word other than its natural meaning.
17. Silber J recorded that the main submission advanced by Mr Supperstone QC, on behalf of the appellant, was that 'a party to a marriage of convenience is not a "spouse" for the purposes of' Regulation 2(2)(a) of the Withholding Regulations. He further recorded that, in answer to a question from him, Mr Supperstone contended that the word "spouse" should be construed as meaning "his spouse other than by way of a marriage of convenience".
18. This way of putting the appellant's case was paradoxical, for the appellant has at all times contended, and still contends, that her marriage to Mr Doherty was not a marriage of convenience. How then could she properly contend that Lambeth should have determined that she was not Mr Doherty's spouse on the ground that her marriage was one of convenience?
19. Before us Mr Supperstone has put the appellant's case differently. As this is somewhat convoluted we will quote from his written submissions. These contend that:

"The issue of statutory construction is whether a person who is subject to a decision made by the SSHD that they were party to 'a marriage of convenience' and therefore not a 'spouse' under the EEA regs (thereby preventing them from rights to residence and mainstream benefits) but who disputes this decision and pursues a statutory right of appeal (which is outstanding) can be said to be a 'spouse' for the purposes of the exclusion from support under Para 5b of Sch 3 of the 2002 Act whilst that appeal has yet to be determined."

20. In answering this issue Mr Supperstone submits that Regulation 2 of the Withholding Regulations should be read as follows:

"a dependant means a person who at the relevant time (a) is his spouse and spouse shall not be taken to include in this regulation a person who disputes an allegation that they are a party to a marriage of convenience by way of pursuing a statutory appeal under the Immigration Acts which has not been finally determined."

21. Mr Supperstone accepts that this is a 'strained and purposive construction'. We comment that that is to put it mildly. He submits that it is legitimate to accord the Regulation this meaning in order to avoid the absurdity that follows from giving the words of the Regulation a natural meaning and to accord to them the effect that the draftsman must have intended.
22. We believe that we can fairly summarise Mr Supperstone's argument as follows: the appellant is lawfully in this country in order to pursue an appeal. If she succeeds on that appeal, she will have demonstrated that she was and is the bona fide spouse of Mr Doherty and was and is entitled to the right to reside here and to receive mainstream benefits. If she were not married to Mr Doherty there would be no bar under the Withholding Regulations to Lambeth affording her support. It cannot have been intended that she should be left in limbo with no right to benefits or support of any kind on the ground that, as far as mainstream benefits are concerned she is not to be treated as a spouse but, as far as the Withholding Regulations are concerned she is to be treated as a spouse.
23. Silber J. permitted Mr Supperstone to adopt, by way of submission, evidence in a statement from Mrs Rumble, the Director of International Policy at the Immigration and Nationality Directorate of the Home Office, as to the policy background to Schedule 3. This was to discourage a flood of members of the EEA, many of Somali origin, who had established rights to support in other states and who had not yet established habitual residence in this country, from seeking support in this country. Mrs Rumble added this comment:

"Government believes that the proper application of Section 54 will address the concerns that led to its enactment. It is likely to result in a reduction in the number of people from EEA States who arrive in the UK and then seek social services assistance when they are entitled to that support in their own country. Additionally, it should also ensure that limited social services budgets are preserved for those entitled and in genuine need. The measure will, over time, reduce the pull factor, attracting ineligible immigration, to the UK and tackle abuse of the system."

24. It does not seem to us that it is either necessary or appropriate to resort to this material to inform the interpretation of Schedule 3. Nor were we prepared to accept Mr Supperstone's invitation to look at Parliamentary material for this purpose. The objective of Schedule 3 can readily be inferred from its content. It is to discourage from coming to, remaining in and consuming the resources of the United Kingdom certain classes of person who can reasonably be expected to look to other countries for their livelihood.
25. Mr Supperstone submitted that a foreign national, seeking to establish a right of residence as the spouse of an EEA national, was manifestly not someone to whom the policy described above could apply. He compared the position of the appellant with that of an asylum seeker waiting to pursue an appeal against the refusal to grant asylum. The asylum seeker in this situation does not fall within the categories of those to whom the granting of support is forbidden by Schedule 3 and the Withholding Regulations. Nor, he submitted, should someone in the position of the appellant.
26. We do not consider that an asylum seeker is to be equated, in the present context, with a foreign national seeking to establish a right of residence. It is not reasonable to expect an asylum seeker, who may yet establish that she has refugee status, to look for sustenance or support to her home country, where she may have a well-founded fear of persecution. The same is not true of a foreign national seeking to establish a right of residence. There is no obvious reason why such a person should expect to receive support from this country, rather than her home State, pending the determination of her claim to a right of residence.
27. The provisions of the Asylum Act preclude the Secretary of State from removing the appellant and her son pending the resolution of her appeal. The judge observed that these provisions merely acted as a stay of execution of any removal direction and did not confer any other rights or expectations on the appellant, whether in the form of entitlement to benefits, or otherwise. We agree.
28. The interpretation that Mr Supperstone invites us to give to Regulation 2(2) of the Withholding Regulations involves, in effect, the implication of a proviso to that Regulation. If the implication of such a proviso is legitimate in any circumstances, this can only be where it is necessary in order to give effect to the clear intention of the draftsman. No such clear intention is established in the present case. On the contrary, it makes good sense to give the words of the Regulation their natural meaning, without restriction. Silber J. was right to refuse permission to appeal on this point and we also refuse such permission.

The second issue

29. The appellant is at present receiving asylum support pursuant to an order for interim relief made by Elias J on 24 January 2003. It is the appellant's case that payment of this support is not prohibited by Schedule 3 and the Withholding Regulations because, if the support ceases her Convention rights will be infringed. Continued payment of support is necessary 'for the purpose of avoiding a breach of' these rights.
30. Mr Supperstone contends that removal of support will result in the breach of three of the appellant's Convention rights – those that she enjoys under Article 3, Article 6 and Article 8. She has stated that she intends to remain in this country, come what may. If support is withdrawn she will have no means of sustaining herself and will find herself in that state of degradation which engages the positive obligations of a State under Article 3. Furthermore, as she will be unable to support her son, he will be taken into care, so that her Article 8 right to respect for family life will be violated. Finally, she is likely to be so debilitated that she will be unable properly to conduct her appeal, so that rights analogous to those conferred by Article 6 will be infringed.
31. Mr Supperstone further contends that, in the context of the enjoyment of these rights, she is being discriminated against so that her rights under Article 14 are engaged.
32. The Judge rejected these contentions. He held:

i) It was open to the appellant to return with her son to Kenya, where she could enjoy all her Convention rights. Thus it could not be said to be necessary to provide her with support for the purpose of avoiding a breach of her human rights.

ii) There was no certainty that withdrawal of support would lead to the violation of her rights. There were a number of possibilities:

a) She might decide to return to Kenya after all;

b) Her appeal might be determined before her rights were infringed. If successful she would become entitled to mainstream support. If unsuccessful, she would be removed to Kenya.

c) She might somehow manage to subsist. She had succeeded in doing so in the past for a few months during which she had no visible means of support.

iii) Her appeal did not engage Article 6, for that Article did not apply to proceedings for the determination of public law rights.

iv) There was no discrimination against the appellant on any of the grounds covered by Article 14.

The option to return home

33. It is the case of Lambeth and the Secretary of State that, should the appellant and her son decide to return to Kenya, it will be open to them to do so. That case has not been challenged. The appellant has not suggested that she would be unable to subsist if she returned to Kenya with her son, although she did state that she would have 'no life there and no one to turn to'. No argument was based on this evidence below and the Judge proceeded on the basis that it was viable for her to return to and subsist in Kenya. This was not challenged in the Notice of Appeal or the appellant's skeleton argument. Her case was advanced on the basis that she had made it plain that she would not return to Kenya, come what may, not that she would be unable to return.
34. The position described above raises an important issue of principle in relation to the application of paragraph 3 of Schedule 3 to the 2002 Act. The appellant contends that if the asylum support that she is receiving is withdrawn and she remains in this country, this will impact on her Convention rights in two respects: (1) she will be reduced to such a severe state of degradation as to engage Article 3; (2) she will be unable to support her son who will, in consequence, be taken into care, thereby violating her right to respect for family life under Article 8.
35. Lambeth and the Secretary of State counter with this argument. Assume, for purposes of argument, that if the appellant and her son remain in this country she will suffer degradation and her son will be removed into care. These will not be the consequences of the removal of support. They will be the consequence of her decision to remain in this country, where she has no means of subsistence, rather than to return to Kenya, where she and her son will be able to subsist. In these circumstances it cannot be said to be necessary to provide support for the purpose of avoiding a breach of the appellant's Convention rights.
36. It seems to us that it is possible that paragraph 8 of Schedule 3 contemplates placing the first and second classes of 'ineligible persons' in a position where they cannot contend that leaving the country is not a viable option. But does Schedule 3 permit, indeed oblige, a local authority to refuse support to a person who is entitled to remain in this country if the result will be to require that person to choose between leaving this country or suffering degradation and interference with the enjoyment of family life?
37. Mr Giffin and Miss Richards submit that the answer to this question is yes, provided that there is an appropriate country to which the person in question can go. Mr Supperstone submits that the answer to this question is no. He contends that as a matter of principle the question of whether provision of support is necessary for the purpose of avoiding a breach of Convention rights of someone who is entitled to be in this country must be determined on the assumption that that person remains in this country. In addition to this general proposition, Mr Supperstone submits that there are two special reasons on the facts of the present case why the option of returning to Kenya is not one that the court should contemplate. It is convenient to deal with these first.

Article 8

38. The appellant is awaiting the result of her appeal against the determination that her marriage to Mr Doherty was a marriage of convenience and that therefore she has no right of residence. She has, however, added an additional ground for contending that she should be given permission to remain in this country. She contends that if she is removed to Kenya, this will be to 'separate her from her spouse in a manner contrary to the provisions of Article 8' of the Convention. She further contends that it will violate Article 8 if her son is removed from his step-father. She builds on these contentions to argue that, if her support is removed, her human rights will be infringed regardless of whether she stays in this country or goes back to Kenya. If she stays here she will be reduced to a state of degradation and have her son removed into care. If she goes back to Kenya, she and her son will be separated from her husband.
39. There are two reasons for rejecting this argument. In the first place, the appellant is already separated from Mr Doherty. The argument that she should be permitted to remain in England so that she and her son can enjoy family life with him seems manifestly unsustainable. Mr Supperstone submits that we should not prejudge the result of her appeal. On this issue we see no reason why we should not.
40. The second point is independent of the first. Respect for family life does not require that the appellant should remain in this country while her appeal is considered. The Strasbourg Court has always respected the right of a State, subject to treaty obligations, to control the entry of non-nationals into its territory – see, for instance, Abdulaziz, Cabales and Balkandani v United Kingdom 7 EHRR 471 at p.497. Strasbourg jurisprudence would certainly not require this country to permit a claimant, seeking to enter this country for family reasons, to be permitted to enter, or to remain here on public support, pending the resolution of her disputed claim.

Right analogous to Article 6

41. We turn to the other special reason urged by Mr Supperstone when contending that we should not regard the possibility of the appellant returning to Kenya as a viable option. He contended that, as a matter of public law, the appellant was entitled to give oral evidence on the hearing of her appeal against the finding that she has no right of residence. He submitted that this right was analogous to the Article 6 right to a fair trial and that the consequences of removal of support must be assessed on the premise that she remains in this country in the exercise of that right. We do not accept this submission. There is no public law right that entitles a foreign national, who is in need of public support, to be permitted to come to or remain in this country, while pursuing a claim to a right of residence. As Simon Brown LJ remarked in R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 at p.286:

"…non-asylum-seeking immigrants have since 1980 invariably been admitted subject to the condition of 'no recourse to public funds' and, more importantly, unlike asylum seekers, can in any event return to their country of origin."

Protection from removal.

42. Pending the determination of her appeal the appellant is entitled to remain in the United Kingdom. In these circumstances Mr Supperstone submits, as a matter of principle, that the effect of denying her support must be considered on the premise that she remains here. On that premise, her Convention rights will be inevitably be violated by the removal of support. It is thus necessary to provide her with support for the purpose of avoiding a breach of her Convention rights.
43. Mr Giffin submits that the effect of denying her support must be considered on the premise that she is free to go back to Kenya. On that premise refusal of support will not result in infringement of any Convention right.

Discussion

44. Under the EEA Regulations the appellant has a right to pursue her appeal 'in country' and will be permitted to stay here to exercise that right, if she so wishes. That is the position of any appellant who contends that the decision from which she appeals has violated her Convention rights. It obviates the risk that removing such a person, or requiring her to leave in order to pursue an appeal, would violate her Convention rights. For the reasons discussed above, if the appellant were removed, or compelled by the removal of support to return to Kenya, pending determination of her appeal, this would not in fact violate her Convention rights. How does paragraph 3 of Schedule 3 operate in these circumstances?
45. The appellant's submission is that the State is under a positive obligation to provide her with support in order to avoid violation of her Article 3 and Article 8 rights. In support of the submission that failure to provide support would violate Article 3 rights, Mr Supperstone relied on R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants, to which we have already referred. In that case the Secretary of State had introduced regulations excluding the statutory right to payment of 'urgent case' benefits from asylum seekers who had not claimed asylum immediately upon arrival, or whose claims for asylum had been rejected and who were awaiting appeal. The issue was whether the Secretary of State had had power to make such regulations. The majority of the Court of Appeal held that he had not. Giving the leading judgment Simon Brown LJ held that the effect of the regulations would be to drive those with genuine claims to asylum to forfeit them as a result of penury, whether by leaving the country prior to their determination or by inability to prosecute them effectively. This he held to be unlawful.
46. That case was decided before the Human Rights Act had been enacted. Had it been in force it would have been at least possible that the Court would have held that the removal of urgent case benefits in such circumstances violated Article 3. But, as we have pointed out above, Simon Brown LJ distinguished the position of asylum seekers from non-asylum seeking immigrants who could return to their country of origin. They suffered the same loss of benefits under the Regulations. Simon Brown LJ commented at p.287 "truly, deprived asylum seekers are in a unique position". It seems to us that this is a decision which assists Lambeth rather than the appellant.
47. In support of the argument that failure to provide support would violate Article 8 rights, Mr Supperstone relied on R on the application of J v Enfield LBC and Secretary of State for Health (Intervener) [2002] EWHC 432 (Admin); 5 CCLR 434. In that case Elias J. held that a local authority had power under section 2 of the Local Government Act 2000 to provide an immigrant from Ghana whose status had not yet been determined with financial assistance for acquiring accommodation if this was the only way to avoid a breach of the applicant's Article 8 rights. The facts of that case were that, if the immigrant was not assisted to acquire accommodation, it would be necessary to take her child into care. It was common ground that this would violate her Article 8(1) rights.
48. Thus far, the analogy with the present case is clear. But in Enfield there was no suggestion that it was a viable option for mother and child to return to Ghana. The Judge noted that she intended to seek to remain in the United Kingdom on the ground that it would be a breach of Article 3 to return her to Ghana where they did not have facilities to deal with AIDS, from which she was suffering. Having regard to these facts, we do not find that this decision assists with the issue that arises in the present case.
49. No authority has been placed before us which bears directly on the issue we have to resolve. We must decide it as a matter of principle. We do not consider that either Article 3 or Article 8 imposes a duty on the State to provide the appellant with support. She has not been granted leave to enter or remain in this country. She has been permitted to remain here to pursue an appeal in which she advances, inter alia, an Article 8 claim, which we consider to be clearly specious. Even if it were not, no infringement of Article 8 would result from requiring her to return to her own country pending the determination of her appeal. There is no impediment to her returning to her own country. A State owes no duty under the Convention to provide support to foreign nationals who are permitted to enter their territory but who are in a position freely to return home. Most people who fall into this category are given leave to enter on condition that they do not have recourse to public funds.
50. For this reason alone, Silber J was correct to hold that Lambeth had no power to provide the appellant with support as this was not necessary for the purpose of avoiding a breach of her Convention rights.
51. Mr Supperstone had originally advanced arguments to the effect that removing support would violate the appellant's rights under Articles 6 and 14. He conceded, rightly, that Article 6 was not engaged, although he sought to rely upon it by analogy, as we have explained above. As to Article 14, Mr Supperstone abandoned the argument that he had advanced before the Judge and sought to replace it with a new argument. Mr Giffin objected to this on the ground that it would open up a substantial area of factual enquiry. We upheld his objection.

The consequences of removal of support

52. There was a second reason why Silber J. found against the appellant on the second issue. Applying the approach of this court in R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364; [2003] 2 All ER 905 he held that the appellant had not demonstrated that removal of support would reduce her to the state of degradation that engaged Article 3, nor that it would result in her child being taken into care. He had a number of reasons for this, which we have set out in paragraph 32 above.
53. Part of his reasoning was that the appellant's appeal might be quickly determined, so that the effect of removing support would be short lived. That is now seen to be wishful thinking. He was sceptical of the appellant's evidence that she would remain in this country, even without support. We consider that he was entitled to be sceptical. It is not easy to accept that if, in fact, the appellant found herself faced with degradation and separation from her son, she would not return to Kenya. She herself stated "to make me live apart from my son would destroy me. It would be mental torture." Finally the Judge thought it possible that the appellant would find the means to subsist and that her son would not be taken from her. This was something that she had achieved for a period in the past when she had no visible means of support. We consider that this was a finding open to the Judge.
54. These reasons also lead to the conclusion that the appeal must be dismissed.
Order: Appeal dismissed with costs. Leave to appeal to the House of Lords refused. Application for Lambeth to continue to make payments of support refused. Application for anonymity refused. (Order does not form part of the approved judgment)
 
ANNEXE

The Appellant's eligibility for mainstream welfare benefits (Income Support, Housing Benefit and Council Tax Benefit)

1. The Appellant's eligibility for mainstream welfare benefits is mainly governed by

- The Social Security Contributions and Benefit Act 1992 (in particular sections 123 and 124)

- The Income Support (General) Regulations 1987 (or, as the case may be, the Housing Benefit (General) Regulations 1987 or the Council Tax Benefit (General) Regulations 1992 coupled with

- The Immigration and Asylum Act 1999 (s115)

- The Social Security (Immigration and Asylum) Consequential Amendment Regulations 2000.

1.2 The effect of Reg 21 and Schedule 7 of the Income Support (General) Regulations is that a claimant must be habitually resident to obtain benefit unless they fall into a specific class exempted from that test (eg para 1.12 below).

1.3. However S115 of the Immigration and Asylum Act 1999 provides for exclusions from entitlement to a number of mainstream welfare benefits (115(1)) (including those mentioned above, income support, housing benefit and council tax benefit ) of certain persons.

1.4. Those excluded are persons subject to immigration control (S115(3)) unless they (persons subject to immigration control) fall into an exempted category set out in the Consequential Amendments Regulations. The Appellant does not fall into any of these exempted categories.

1.5. S115(9) defines who a person subject to immigration control is. There are four categories.

1.6. In this case the Appellant is at present a person subject to immigration control because she is a Non EEA National who requires leave to enter in the UK but does not have it (S115(9)(a)). Whilst she has temporary admission, she is deemed not yet to have entered the UK (see S11 of the Immigration Act 1971)

1.7 But if she is accepted to be a bona fide spouse of an EEA National she will not require leave to enter by virtue of S7 of the Immigration Act 1988 (see further below).

She would accordingly not be precluded from claiming benefit by S115.

1.8. The Appellant has not currently been exempted from the requirement to have leave to enter because the SSHD has considered that she is not a bona fide spouse of her husband.

1.9. If she wins her appeal and is found to be a bona fide spouse of an EEA National she will be granted a right of residence in line with her husband (assuming he is a qualifying person eg worker). This is because she and her husband satisfy the requirements of the EEA Regulations, eg:

- Reg 2 (spouse)

- Reg 3 (her husband)

- Reg 5 (her husband)

- Reg 6 (Family Member)

- Reg 10 (Dependants)

- Reg 12 (rights of admission to the UK)

- Reg 13 (Issue of EEA family permit)

- Reg 14(2) (Right of Residence)

1.10. If the Appellant satisfies the requirements of the EEA Regs she will be granted a family permit. She will therefore be entitled to reside in the UK. As a result of her satisfaction of the requirements of the EEA Regulations she will be exempt from the requirement for leave to enter by virtue of S7 of the Immigration Act 1988.

1.11. The result of this will be that she does not fall into S115(9)(a) of the 1999 Act (because she does not require leave to enter).

1.12. She will therefore not be prima facie excluded from mainstream benefits. She will be entitled to mainstream benefits if she satisfies the usual conditions. She will be arguably exempt from the habitual residence test because she is the family member of a worker (pursuant to Reg 21(3)(a) of the Income Support (General) Regulations 1987 (pursuant to EEC Directive 68/360 which covers workers and members of their families who come within Regulations 1612/68 or 1251/70. The Appellant's husband comes within Reg 1612/68. In any event the Department of Work and Pensions have not raised the issue of habitual residence when refusing her claim for benefits. They have decided to refuse her benefits because essentially she is a person subject to immigration control pursuant to S115 because she has been found not to be a bona fide spouse of her husband resulting in her not receiving a document (family permit) exempting her from the need for leave to enter.

1.13. It will then be a matter for the Department of Work and Pensions to make a calculation of the amount she is entitled to pursuant to the detailed criteria set out in the Social Security Contributions and Benefit Act 1992.

2. The Appellant's Eligibility for Support from Lambeth (the local authority) prior to the changes under the Nationality and Immigration and Asylum Act 2002 (NIAA 2002) on 8th January 2003.

2.1 Prior to the changes brought by NIAA 2002 on 8th January 2003 the Appellant would have been entitled to support from Lambeth until her removal from the UK. This is because of Part VI Asylum Support provisions and ancilliary provisions to the 1999 Act.

2.2 'Asylum Support' consists of the provision of accommodation and other basic necessities to destitute asylum seekers under Part VI of the Immigration and Asylum Act 1999. It is generally now provided by the Secretary of State as the National Asylum Support Service (NASS), but in some cases is provided by local authorities under the Asylum Support (Interim Provisions) Regulations 1999. The Appellant falls into this latter category broadly because she came to the UK and claimed asylum before April 2000: such persons are still the responsibility of local authorities because of directions given by the Secretary of State under the 1999 Act.

2.3 In the particular circumstances of this case the Appellant is entitled to support from the local authority because although she is a failed asylum seeker in the sense that that asylum application/appeal has been determined she falls within the extended definition of the term asylum seeker by virtue of having a child under 18 in her household (s94(5))

(*The Appellant's previous claim to stay in the UK was on Refugee Convention grounds only, there was no ECHR claim as the HRA 1998 was not in force at the time of the appeal).

2.4 The key provisions of the 1999 Act for this aspect are

- S94 (1) 'asylum seeker'

- 'claim for asylum'

- S94(3) determination of claim

- S94(4) (disposal of appeal)

- S94(5) (extended definition of asylum seeker for welfare purposes)

- S95(1) (provision of support)

- S95(13) (Reference to Sch 9 to the 1999 Act referring to the temporary provision of support to be provided by local authorities)

- Sch 9 (enabling provisions which allow the SSHD to make regulations requiring a local authority to provide support)

- The Asylum Support (Interim Provisions) Regulations 1999 (Regulations which require local authorities to provide support as opposed to the Secretary of State)

* It is this provision under which the Appellant

i. would have been provided with support prior to 8th January 2003;

ii. would be provided with support if she did not fall within the exclusions of Schedule 3 of the 2002; and

iii. the statutory basis for the support that she is currently receiving under the interim Injunction granted by Elias J and continued by Silber J.

3. The Appellant's eligibility for support from the local authority after the changes brought about by the NIAA 2002 on 8th January 2003.

3.1 On the 8th January S54, Schedule 3 of the 2002 Act came into force (NIAA 2002) (Commencement Order No (3) Order 2003).

3.2 The Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 also came into force on this date.

Schedule 3

3.3 Paragraph 1 of Schedule 3 provides that a person to whom the paragraph applies shall not be eligible for a number of 'social welfare provisions'.

3.4 This includes asylum support under the 1999 Act.

3.5 It does not include mainstream welfare benefits. Essentially paragraph 1 is concerned with social services provision by local authorities whether of a long-term or short term nature.

3.6 The relevant ineligible class of course is paragraph 5(b) in this case ('citizen of other EEA State').

3.7 Further 'dependant' is explained at para 17 of Sch 3 to refer to the meaning that can be given to it by Regulations made by the Secretary of State.

3.8 The Withholding and Withdrawal Regulations define dependant as a 'spouse'.

3.9 Paragraph 2 sets out the exceptions for persons who may be provided support even if they fall within the ineligible classes. The most material exception in this case is para 2(1)(b) 'a child'.

3.10 Further paragraph 3 provides exceptions for persons who fall into any of the ineligible classes as still being entitled to support under the provisions of para 1 if it is necessary for the purpose of avoiding a breach of their Convention Rights or rights under the Community Treaties.

3.11 Therefore the Appellant prima facie falls within Para 5b but may still be entitled to support from the local authority pursuant to paragraph 3.

4. The Appellant's presence in the UK.

4.1 As the Appellant is a Kenyan National she does not currently have leave to enter and would require leave to enter the UK (S3 of the Immigration Act 1971)

However if she is found to be a bona fide spouse of an EEA National she is exempt from the requirement for leave to enter pursuant to S7 of the Immigration Act 1988.

4.2 The Appellant has been granted temporary admission. She is not entitled to work.

4.3 Because she has been granted temporary admission she is deemed not have entered the UK (S11 of the Immigration Act 1971).

5. The Appellant's Rights of Appeal and right not to be removed.

5.1 The Secretary of State has made an adverse decision in relation to her right to reside on EEA Grounds. He has concluded that she is not a spouse under Reg 2 (cited above).

5.2 The Appellant has exercised her right of appeal against that decision.

5.3 The Appellant has pleaded that her removal would result in breaches of her Community Treaty rights and Article 8 of the ECHR.

5.4 The Appellant's appeal rights and the procedures are set out at Part VII of the EEA Regs.

Reg 29 EEA Regs

5.5 The Appellant is entitled to appeal in country - in the UK because she has pleaded an ECHR ground of appeal.

Reg 30(3)(b) EEA Regs

This is an exception to the general rule in Reg 30(1).

5.6 As a result of her presence in the UK at the time of the Immigration decision and the appeal any previous removal directions made cease to have effect and no directions may be given while the appeal is pending.

Reg 34(1) EEA Regs

5.7 The Appellant cannot therefore be lawfully removed until her appeal has been determined.

5.8 The basis for the Appellant being able to appeal on ECHR grounds is provided for by Reg 29(2) of the EEA Regs.