Chief Adjudication Officer v Wolke; Remilien v Secretary of State for Social Security

The House of Lords considered the meaning of the phrase "is required by the Secretary of State to leave the United Kingdom" in regulation 21(3)(h) of the Income Support (General) Regulations 1987 and whether letters sent by the Home Secretary amounted to such a requirement. The court held that the phrase denotes a legal obligation to leave (for example a deportation order or a formal removal decision), not merely a request or exhortation. In reaching that conclusion the court placed the provision in the context of the Immigration Act 1971, the decision in Reg. v. Immigration Appeal Tribunal, Ex parte Antonissen, and the statutory scheme for social security entitlement under the Social Security Contributions and Benefits Act 1992 and the 1987 Regulations. Because the letters in issue had no legal effect of requiring the recipients to leave, they did not fall within regulation 21(3)(h) and could not be used to cut off income support.

Background and parties.

Two cases were considered together. Nathalie Remelien (a French national) and Mery Wolke (a Dutch national) were nationals of Community/EEA states who had come to the United Kingdom and subsequently received income support after separating from partners. The Home Office sent each a letter indicating that the Secretary of State was not satisfied they were lawfully resident under Community/EEA law and that they should make arrangements to leave the United Kingdom. In Wolke's case the letter added that removal would not be enforced at that time.

Procedural history.

• Adjudication officers decided the letters constituted a requirement to leave and terminated income support.
• Remelien succeeded on appeal to a Social Security Appeal Tribunal and before Commissioner Mesher; Wolke succeeded in judicial review before Popplewell J who quashed the adjudication officer's decision.
• The Chief Adjudication Officer appealed to the Court of Appeal where the majority reversed and held the letters did amount to a requirement; Phillips L.J. dissented.
• The cases were then brought to the House of Lords.

Nature of the claim and issues.

• The central issue was statutory interpretation: whether regulation 21(3)(h) of the Income Support (General) Regulations 1987 applies where the Secretary of State has merely written to a Community/EEA national asking them to leave, or whether it requires a decision imposing a legal obligation to leave (such as a deportation order or formal removal decision).
• Subsidiary issues included the effect of Ex parte Antonissen, the availability of appeal or other remedies, and the relationship between immigration control and entitlement to social security.

Reasoning.

• The court examined the relevant social security and immigration statutory schemes, the background to paragraph (h) (added in 1993) and the use of the phrase in the Antonissen judgment.
• The House concluded that the phrase should be read as referring to an act having legal consequences, typically involving a legal obligation to leave enforceable in domestic law (for example by deportation or removal under later domestic instrument), rather than to an unenforceable request or administrative statement.
• The court considered the implications for appeal rights and the availability of an effective remedy: construing paragraph (h) to be triggered by letters without legal effect would leave no appeal on immigration questions and would produce anomalous consequences under the social security appeals regime.
• The letters to the two women did not impose a legal obligation to leave and therefore did not bring them within regulation 21(3)(h); the decisions terminating income support were therefore wrong.

Relief sought and outcome. The appellants sought restoration of the decisions quashing the adjudication officers' terminations of benefit; the House allowed the appeals and restored the first-instance orders in favour of the claimants.

Appeal allowed. The House held that the words "is required by the Secretary of State to leave the United Kingdom" in regulation 21(3)(h) denote a legal obligation to leave (for example a deportation order or a formal removal decision) rather than a mere exhortation or administrative request; the letters in the two cases had no legal effect of requiring departure, so they did not satisfy regulation 21(3)(h) and could not be relied on to negate entitlement to income support.

Adjudication officers terminated income support payments. Remelien succeeded before the Social Security Appeal Tribunal and Commissioner Mesher; Wolke succeeded in judicial review before Popplewell J (both orders quashing the decisions of the adjudication officers). The Chief Adjudication Officer appealed to the Court of Appeal where the majority held the Home Secretary's letters amounted to a requirement to leave and reversed the earlier orders. The House of Lords allowed the appeals and restored the orders of Popplewell J. and Commissioner Mesher. (Neutral citation for this appeal: [1997] UKHL 50.)