Chief Adjudication Officer v. Wolke

Factual and Procedural Background

The consolidated appeals concern two European Union nationals (“the Appellants”) who entered the United Kingdom and later applied for Income Support. Each Appellant received a letter from the Secretary of State for the Home Department stating that, because she had become a burden on public funds and was in the United Kingdom in a “non-economic capacity,” she “should now make arrangements to leave the United Kingdom.” Following those letters:

• A Social Security Adjudication Officer decided that the letters brought the Appellants within regulation 21(3)(h) of the Income Support (General) Regulations 1987, which treats certain persons as “persons from abroad” whose Income Support entitlement is fixed at nil.
• In one case, the Social Security Appeal Tribunal upheld the Adjudication Officer but the Social Security Commissioner (“Judge Mesher”) reversed that decision. In the other, the High Court (“Judge Popplewell”) quashed the Adjudication Officer’s decision on judicial review.
• The Chief Adjudication Officer appealed to the Court of Appeal, which by majority held that the letters did amount to a “requirement” to leave, thereby reinstating the termination of Income Support.
• The Appellants obtained leave to appeal to the House of Lords (now the Supreme Court).

Legal Issues Presented

1. Whether a letter informing an EU national that she “should … leave the United Kingdom” is sufficient to make her a person who “is required by the Secretary of State to leave the United Kingdom” under regulation 21(3)(h) of the 1987 Regulations.
2. Consequently, whether the Appellants fell within the “person from abroad” category so that their Income Support entitlement was reduced to nil under Schedule 7, paragraph 17 of the Regulations.

Arguments of the Parties

Appellants’ Arguments

• The letters did not create any legally enforceable obligation to leave; therefore they were not a “requirement” within regulation 21(3)(h).
• An actual legal mechanism—such as a deportation order or an Article 15(2) removal decision—would be necessary before the Secretary of State could be said to have “required” someone to leave.
• Without such a mechanism, the Appellants remained lawfully present; terminating Income Support violated domestic social-security law.

Respondents’ Arguments

• The Home Secretary’s letters, coming from the official empowered to initiate deportation proceedings, constituted an authoritative instruction amounting to a “requirement.”
• Community case-law (notably Antonissen) shows that EU nationals who cease to be “qualified persons” may be obliged to leave, even if immediate enforcement action is not taken.
• Therefore the Adjudication Officer correctly treated the Appellants as “persons from abroad.”

Table of Precedents Cited

Court's Reasoning and Analysis

The House of Lords (per Judge Hoffmann, with Judge Browne-Wilkinson, Judge Slynn, Judge Hope and Judge Hutton concurring) held:

1. Regulation 21(3)(h) adopts the language used in Antonissen, where “required to leave” meant being placed under a legal obligation enforced (and appealable) under domestic law.
2. The Home Secretary’s letters expressly lacked compulsory force; they neither altered the Appellants’ immigration status nor triggered a statutory right of appeal. Accordingly the letters did not impose a legal requirement to leave.
3. Until a formal deportation order or removal decision is made, EU nationals in the Appellants’ position remain lawfully present; their entitlement to Income Support cannot be removed under paragraph 17 of Schedule 7.
4. Interpreting regulation 21(3)(h) as the Respondents suggested would render it duplicative of paragraph 21(3)(c) and leave claimants without any effective appeal, an outcome unlikely to have been intended by the legislature.

Holding and Implications

APPEALS ALLOWED. The House of Lords restored the orders of Judge Popplewell and Commissioner Mesher, reinstating the Appellants’ entitlement to Income Support.

Implications: The decision clarifies that, for EU nationals, only a formal, legally enforceable direction (such as a deportation order or Article 15 removal order) constitutes being “required … to leave” under regulation 21(3)(h). Mere advisory letters from the Home Office are insufficient. The ruling safeguards access to Income Support unless and until valid immigration powers are exercised, but it sets no new precedent beyond construing the specific regulation.