COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CLERKENWELL AND SHOREDITCH COUNTY COURT
HIS HONOUR JUDGE JOHN MITCHELL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LADY JUSTICE BLACK
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|London Borough of Hackney
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Secretary of State for Communities and Local Government
Kelvin Rutledge and Kuljit Bhogal (instructed by Corporate Director, Legal and Democratic Services, London Borough of Hackney) for the Respondent
Tim Ward (instructed by The Treasury Solicitor) for the Interested Party
Hearing date: 13th July 2010
Crown Copyright ©
Sir Anthony May President of the Queen's Bench Division:
This is the judgment of the Court
"(a) who is not eligible for assistance under this Part,
(b) who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996, and
(c) either –
(i) who does not have leave to enter or remain in the United Kingdom, or
(ii) whose leave to enter or remain in the United Kingdom is subject to a condition to maintain and accommodate himself, and any dependents, without recourse to public funds."
A new section 193(3B) introduced a definition of "a restricted case" meaning
"… a case where the local housing authority would not be satisfied as mentioned in sub-section (1) without having had regard to a restricted person."
"A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of 5 years without becoming subject to an expulsion measure." (Our emphasis)
"Furthermore, a national of a Member State who, like the claimant, lives in another Member State where he pursues and completes his secondary education, without it being objected that he does not have sufficient resources or sickness insurance, enjoys a right of residence on the basis of Article 18 EC and Directive 90/364."
In our judgment, this passage should not be read as support for Mr De Mello's waiver submission, since
(i) the right of residence under Directive 90/364/EEC subsisted as long as the beneficiary fulfilled the self-sufficiency conditions in Article 1 – see Article 3;
(iii) Directive 90/364/EEC is now replaced by Directive 2004/38/EC; and
(iv) in Badar, the right of residence of the applicant for assistance was not contested and it was immaterial to contend that those who were not self-sufficient could be removed – see paragraph 47 of the court's judgment. Paragraph 36 of the judgment is to be read as saying no more than that those who are self-sufficient enjoy a right of residence under Article 18 (EC) and the Directive, which is uncontentious in the present appeal.