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

A national of a European Union Member State is “required by the Secretary of State to leave the United Kingdom”, within regulation 21(3)(h) of the Income Support (General) Regulations 1987, only when placed under a legal obligation to leave. An authoritative request or instruction without legal effect is insufficient.

The obligation may arise through a deportation order or an order for removal under the Immigration (European Economic Area) Order 1994, after applicable appeal rights have been exhausted. A letter merely advising a person to arrange to leave, while confirming that departure will not be enforced, does not terminate entitlement to income support under regulation 21(3)(h).

Two single mothers, nationals respectively of the Netherlands and France, received income support after separating from their partners. The Home Secretary subsequently wrote to each woman stating that she had become a burden on public funds and should arrange to leave the United Kingdom. The letter to Ms Wolke added that her departure would not be enforced in the circumstances then existing.

Social security adjudication officers treated the letters as requirements to leave under regulation 21(3)(h) of the Income Support (General) Regulations 1987 and discontinued income support. Popplewell J quashed the decision concerning Ms Wolke, while Social Security Commissioner Mesher allowed Ms Remilien’s appeal. A majority of the Court of Appeal reversed both decisions.

The House considered whether “is required by the Secretary of State to leave the United Kingdom” meant that a Community national must be placed under a legal obligation to leave, and whether the letters satisfied that condition.

1. Appeals allowed by a majority of four to one. Lord Hoffmann delivered the leading speech. Lord Browne-Wilkinson, Lord Hope of Craighead and Lord Hutton agreed with him. The orders of Popplewell J and Social Security Commissioner Mesher were restored. Lord Slynn of Hadley dissented.

2. Per Lord Hoffmann, regulation 21(3)(h) of the Income Support (General) Regulations 1987 referred to a Community national who had been placed under a legal obligation to leave. The expression derived from Reg v Immigration Appeal Tribunal, Ex parte Antonissen [1991] E.C.R. I-745. In that context it contemplated legislation authorising removal and an act carrying legal consequences, together with a right of appeal.

3. The immigration rules could state how powers under the Immigration Act 1971 would be exercised, but could not themselves create a power to require departure. When regulation 21(3)(h) was introduced in 1993, the only relevant legal obligation arose through deportation. The later removal power under article 15(2) of the Immigration (European Economic Area) Order 1994 furnished a distinct mechanism to which the regulation could apply.

4. The appellants’ letters did not affect their immigration status or create a right of appeal to an immigration adjudicator. An appeal against the social security decision would not provide an effective means of challenging the Home Secretary’s underlying determination. Those features supported the conclusion that the letters did not impose the legal obligation contemplated by the regulation.

5. The appellants had entered without leave in the exercise of Community rights and remained lawfully present until required to leave under applicable domestic law. A mere statement that they should arrange to leave was not equivalent to a deportation order or an order for removal. The additional statement that Ms Wolke’s departure would not be enforced reinforced the absence of legal compulsion.

6. Removal under article 15(2) of the 1994 Order was not a deportation order. Deportation also prohibited return, whereas removal permitted a person to return if circumstances changed and entry later became lawful. Regulation 21(3)(h) therefore retained a function separate from regulation 21(3)(c).

7. Lord Slynn, dissenting, considered that the provision served only to end income support. In his view the Home Secretary could trigger it by communicating a requirement to leave even without an independently enforceable removal power, and both letters were sufficient for that purpose.

1. House of Lords: By a majority of four to one, allowed both appeals and restored the orders of Popplewell J and Social Security Commissioner Mesher.
2. Court of Appeal: By a majority, allowed the Chief Adjudication Officer’s appeals and held that each Home Secretary letter constituted a requirement to leave. Phillips LJ dissented.
3. High Court: Popplewell J quashed the adjudication officer’s decision concerning Ms Wolke because the letter did not require her to leave.
4. Social Security Commissioner: Commissioner Mesher allowed Ms Remilien’s appeal because the letter lacked the necessary insistence or compulsion.
5. Social Security Appeal Tribunal: Confirmed the adjudication officer’s decision concerning Ms Remilien.