Kaya v London Borough Of Haringey & Anor

A person temporarily admitted to the United Kingdom under Schedule 2 to the Immigration Act 1971 is not thereby lawfully present for the purposes of housing-assistance eligibility. Section 11(1) deems such a person not to have entered the United Kingdom while temporarily admitted or liable to detention. That domestic-law status governs the expression “lawfully present” in the relevant regulations implementing the European Convention on Social and Medical Assistance. General principles requiring international treaties to be interpreted autonomously and purposively do not permit a lower domestic court to revisit a binding interpretation given by a superior court.

The appellant and his wife were asylum seekers temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the Immigration Act 1971. After becoming homeless, they sought accommodation from the London Borough of Haringey under Part 7 of the Housing Act 1996. The wife’s pregnancy gave rise to a potential priority need, but the claim depended on her eligibility for housing assistance.

The county court dismissed the claim on a construction of the interaction between the housing and social-security provisions. On appeal, the Secretary of State intervened and advanced a different argument: the wife was not “lawfully present” in the United Kingdom and therefore did not fall within Class E of regulation 3 of the Homelessness (England) Regulations 2000. The central issue was the legal effect of temporary admission.

1. Appeal dismissed. The Court of Appeal unanimously held that neither Mrs Kaya nor, through her, Mr Kaya qualified for housing assistance.
2. Class E of regulation 3 required a person subject to immigration control to be habitually resident in the Common Travel Area, to be a national of a state that had ratified the European Convention on Social and Medical Assistance, and to be lawfully present in the United Kingdom.
3. Temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971 had to be distinguished from leave to enter. Section 11(1) deemed a person temporarily admitted, while liable to detention, not to have entered the United Kingdom. That provision prevented unlawful-entry liability, but it also meant that the person was not lawfully present for the relevant domestic-law purposes.
4. The court applied the reasoning of the House of Lords in Regina v Home Secretary ex parte Bugdaycay [1987] AC 514. The similar expression in the European Convention on Social and Medical Assistance and in Class E did not acquire a different meaning merely because it occurred in an international instrument.
5. The court accepted the general principles in Regina v Secretary of State for the Home Department ex parte Adan [2001] 2 WLR 143, namely that an international treaty has an autonomous meaning. However, domestic courts must determine that meaning within the domestic hierarchy of precedent. The Court of Appeal was bound by the superior-court exposition in Bugdaycay.
6. The decisions in D v UK [1997] 24 ECHR 423 and Regina v Secretary of State for the Home Department ex parte Yiadom were distinguishable. They concerned jurisdiction under the European Convention on Human Rights and procedural rights arising from European Union citizenship, respectively, rather than lawful presence for the purposes of the housing regulations.
7. The appeal was dismissed on a ground different from that relied on by the county court. Costs were ordered against the appellant in favour of both respondents, recoverable from the Legal Services Commission; the appellant’s contribution was assessed at nil. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): appeal from the Edmonton County Court dismissed. The court decided the appeal on a different ground from that adopted below and refused permission to appeal to the House of Lords.