London Borough of Barnet v Ismail & Anor

A person is subject to immigration control where that person cannot lawfully remain in the United Kingdom without leave. The statutory expression “requires leave” describes a need for leave. It does not require a legal obligation to apply for leave.

An EEA national who is not a qualified person and has no other exemption therefore requires leave to remain, even though the person may stay until the Secretary of State exercises a power of removal. The separate references to leave to enter and leave to remain are disjunctive. A person who needs either form of leave falls within the definition.

Two Dutch nationals living in Barnet were economically inactive because of childcare responsibilities and received income support. The local housing authority refused them housing assistance under Part VII of the Housing Act 1996. It regarded them as EEA nationals who were neither subject to immigration control nor habitually resident by right in the Common Travel Area.

HH Judge Rich QC in the Central London County Court reversed the authority’s decisions. The authority appealed, supported by the First Secretary of State as intervener.

The central issue was whether an EEA national who was not a qualified person under the Immigration (European Economic Area) Regulations 2000 “requires leave to enter or remain” and was therefore subject to immigration control within section 13(2) of the Asylum and Immigration Act 1996.

1. The appeals were dismissed unanimously. The respondents required leave to remain and were subject to immigration control. As recipients of income support, they consequently fell within regulation 3, class I of the Homelessness (England) Regulations 2000.

2. The words “requires leave” in section 13(2) of the Asylum and Immigration Act 1996 concern a person’s need for leave to regularise the right to remain. They do not mean that the person is under a positive legal obligation to apply for leave. Had Parliament intended the latter meaning, it would have referred expressly to a requirement to apply.

3. This construction followed from the framework of the Immigration Act 1971. A person without a right of abode needs leave unless an exemption applies. Regulation 14 of the Immigration (European Economic Area) Regulations 2000 exempts an EEA national only while that person remains a qualified person. An unqualified EEA national may remain until removed, but that does not confer an entitlement to reside without leave.

4. The authority’s construction would leave section 13(2) with no apparent practical application. Neither exposure to an offence under section 24 of the Immigration Act 1971 nor the general terms of section 1(2) impose an obligation actively to apply for leave. That construction would also undermine the employment offence in section 8 of the Asylum and Immigration Act 1996, which focuses upon whether valid leave has been granted.

5. R v City of Westminster ex p Castelli (1996) 28 HLR 616 did not determine the construction of section 13(2), which post-dated that decision. Its conclusion that comparable EEA nationals were not unlawfully present could not displace the statutory wording. Chief Adjudication Officer v Wolke [1997] 1 WLR 1640 concerned issues which did not arise in these appeals.

6. The expression “leave to enter or remain” is disjunctive. The Immigration Act 1971 treats leave to enter and leave to remain as distinct matters. An EEA national’s entitlement to enter without leave therefore does not prevent that person from being subject to immigration control because leave to remain is required.

1. Court of Appeal (Civil Division): The local authority’s appeals were dismissed by [2006] EWCA Civ 383. The court upheld the conclusion that both respondents were subject to immigration control.
2. Central London County Court: HH Judge Rich QC reversed the local authority’s refusals of housing assistance. No citation is stated in the judgment.
3. London Borough of Barnet: The authority refused each respondent’s application for housing assistance under Part VII of the Housing Act 1996.