Law Report: Duty over immigrants: Regina v Secretary of State for the Environment, ex parte Tower Hamlets London Borough Council. Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Stuart-Smith and Lord Justice Waite), 7 April 1993

Where an immigrant applied for housing on the ground that he was homeless, the local housing authority could not only investigate, and inform the immigration authorities upon, the question of the legality of the applicant's entry into the country, but could also decide that question for itself, and base its decision whether or not to house the applicant, pursuant to Part III of the Housing Act 1985, upon its conclusion as to his immigration status.

The Court of Appeal allowed an appeal by Tower Hamlets London Borough Council against the refusal by the Queen's Bench Divisional Court, on 9 April 1992, to declare that certain paragraphs, including paragraph 4.11, of the Code of Guidance (Third Edition), issued by the Secretary of State for the Environment to housing authorities on 1 September 1991, were wrong in law.

Paragraph 4.11 provided: 'Authorities cannot refuse to rehouse a family because they are immigrants. Everyone admitted to this country is entitled to equal treatment under the law; their rights under Part III of the Act are no different from those of any other person. Authorities should remember to treat as confidential information received on an applicant's immigration status.' The council sought judicial review, contending that such guidance was misleading and contrary to the true legal position, and therefore ultra vires.

Ashley Underwood and Lisa Giovannetti (J E Marlowe, Tower Hamlets) for the council; David Pannick QC (Treasury Solicitor) for the Secretary of State.

LORD JUSTICE STUART-SMITH said the council had a large immigrant population and as a housing authority faced a problem in discharging its duties under the 1985 Act in relation to illegal immigrants.

Under the Statement of Changes in Immigration Rules (HC 251) a person seeking admission would be refused unless the entry clearance officer was satisfied he would have adequate accommodation without recourse to public funds.

There were broadly two classes of illegal immigrant with whom a local housing authority might be concerned: (1) those entering the country clandestinely, without going through immigration control; and (2) those who obtained leave to enter as a result of false and deceitful statements about the availability of accommodation.

It was clear if the immigration authorities decided such a person was an illegal entrant the local authority owed no duty to him under Part III of the 1985 Act. Moreover, not only was there nothing in the Acts or the Rules to prevent the housing authority making enquiries as to what statements, representations or undertakings had been given in relation to accommodation by or on behalf of the applicant, but it had a duty to do so; and if, as a result of such inquiries, it suspected the applicant was an illegal entrant, it had a duty to inform immigration authorities.

But the council argued that it was entitled, not only to investigate and pass on information about, but also to decide, in the light of its own investigations, the question whether the applicant had entered the country by deceipt relating to housing accommodation. And if it decided he had, it had no duty to him under the Act.

If that was correct, the second sentence of paragraph 4.11 was at best far from clear and at worst misleading.

The Secretary of State argued that it was for the immigration authorities alone and not the housing authority to decide whether an applicant was an illegal entrant in that he had obtained leave to enter by deception.

But there was nothing in the language of section 33(1) of the Immigration Act 1971 and the definition of 'illegal entrant' which imported into it the opinion of the immigration authorities or the Secretary of State, and nothing in the Act or the Rules to suggest it was only enforceable by the immigration authorities.

In his Lordship's judgment, a person who obtained leave to enter by deceipt amounting to an offence under section 26(1)(c) of the 1971 Act was an illegal entrant from the moment he obtained leave. That was so whether or not the immigration authorities knew the facts or took any action against him.