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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [1997] UKSSCSC CIS_143_1997 (07 August 1997) URL: http://www.bailii.org/uk/cases/UKSSCSC/1997/CIS_143_1997.html Cite as: [1997] UKSSCSC CIS_143_1997 |
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Commissioner's File: CIS 143/97
Mr Commissioner Rowland
7 August 1997
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Claim for: Income Support
Appeal Tribunal: Euston SSAT
1. This is an appeal, brought by the adjudication officer with the leave of the
Chief Commissioner, against a decision of the Euston social security appeal
tribunal dated 5 November 1996 whereby they decided that the claimant was not
disentitled to income support by reason of failure to claim political asylum on
her arrival in the United Kingdom.
2. The facts material to this appeal are not in dispute. The claimant is a
national of Somalia and arrived at Heathrow Airport on Friday 19 July 1996,
having travelled via Kenya. She was allowed to enter the United Kingdom but the
basis of that decision is unknown to me. On Monday 22 July 1996, she presented
herself at the Home Office Immigration and Nationality Directorate at Lunar
House, Croydon, and applied for political asylum. On 23 July 1996, she applied
for income support. She was awarded "urgent case" payments at the weekly rate of
£34.11 from 23 July 1996. Those were paid up to 5 August 1996. However, on 24
July 1996, the Asylum and Immigration Act 1996 received the Royal Assent and
section 11 and Schedule 1, which make provision with respect to social security
regulations, came into effect. In the light of the change in the law, an
adjudication officer reviewed and revised the award of benefit and, in a
decision issued on 4 August 1996, decided that the claimant was not entitled to
such payments from 23 July 1996. There was, of course, no question of recovering
the payments already made. The claimant appealed against the decision issued on
4 August 1996 and it was that appeal that was allowed by the tribunal.
3. Until 5 February 1996, there could be no doubt that a person in the
claimant's position would be entitled to income support on an "urgent case"
basis. As a "person from abroad" for the purposes of regulation 21 of, and
paragraph 17 of Schedule 7 to, the Income Support (General) Regulations 1987,
her case would have been treated as urgent under regulation 70(3)(b) because she
would have been an "asylum seeker" within the terms of regulation 70(3A)(a). She
would have received a reduced amount of benefit on that basis. However, from 5
February 1996, regulation 8(3)(c) of the Social Security (Persons From Abroad)
Miscellaneous Amendments Regulations 1996 purported to amend the definition of
"asylum seeker" in regulation 70(3A)(a) of the 1987 Regulations, so as to
exclude a person who had not made an application for political asylum "on his
arrival (other than on his re-entry) in the United Kingdom from a country
outside the common travel area".
4. On 21 June 1996, in Regina v. Secretary of State for Social Security, Ex
parte B and the Joint Council for the Welfare of Immigrants, the Court of
Appeal, by a majority, held the 1996 Regulations to have been ultra vires.
However, the Asylum and Immigration Bill was then passing through Parliament
and, on 1 July 1996, the Government moved an Amendment to insert a new clause
and Schedule which became section 11 and Schedule 1 when the Act was passed. In
particular, section 11(4)(a) provides:-
"Schedule 1 to this Act -
(a) Part I of which modifies the Social Security (Persons from Abroad)
Miscellaneous Amendments Regulations 1996; and
(b) ....,
shall have effect."
Paragraph 2 of Schedule 1 provides:-
"In regulation 8 of the 1996 Regulations (Amendment of the Income Support
Regulations) -
(a) ...; and
(b) paragraph (3)(c) and (d),
shall have effect as if the 1996 Regulations had been made, and had come
into force, on the day on which this Act is passed."
The effect of those provisions was to make effective the earlier attempt to
amend the definition of "asylum seeker" in regulation 70(3A)(a) of the 1987
Regulations so that it read:-
"For the purposes of this paragraph, a person -
(a) is an asylum seeker when he submits on his arrival (other than on
his re-entry) in the United Kingdom from a country outside the common
travel area a claim for asylum to the Secretary of State that it would
be contrary to the United Kingdom's obligations under the Convention for
him to be removed from, or required to leave, the United Kingdom and
that claim is recorded by the Secretary of State as having been made; or
...."
The important words are "on his arrival".
5. The award of "urgent case" payments to the claimant was correctly made in the
light of the Court of Appeal's decision of 21 June 1996. However, the passing of
the Asylum and Immigration Act 1996 was clearly a change of circumstances
justifying a review of that award. The question I have to determine is whether
the tribunal were right to decide that the claimant had made an application for
asylum "on [her] arrival" and so could be regarded as an asylum seeker under
regulation 70(3A)(a) of the 1987 Regulations, as amended by the 1996 Regulations
as put into effect by the 1996 Act. The tribunal's approach was clearly set out
in the chairman's record of their decision:-
"We find that [the claimant] in effect claimed asylum status on arrival.
She landed with others at Heathrow at 4pm on Friday 19.7.96. She presented
herself at the Croydon office of the Home Office at 9a.m. on Monday 22.7,
which would have been the first available moment of office hours."
The adjudication officer now submits:-
"29. I submit that in this context "on arrival" means before clearing
immigration control at the Port of Entry, which in this case was Heathrow
airport. The immigration control officers there are available 24 hours a
day, every day. There is no question of them operating "office hours" and
there was no necessity for [the claimant] to postpone her application until
the following Monday."
The claimant, who was represented before the tribunal but is not represented on
this appeal, has not advanced any argument against the adjudication officer's
submission and has indicated that she does not seek an oral hearing.
6. Words in statutes are to be given their natural meaning unless the context
suggests otherwise. As a matter of ordinary language, the claimant clearly
arrived in the United Kingdom on the Friday and not on the Monday when she made
her application for political asylum. I accept that, in some contexts, a person
may do something "on his arrival" if it is done as soon as practical after
arrival. However, in the present context, it seems to me to be clear that "on
his arrival" means "while clearing immigration control at the port of entry" and
that the adjudication officer's submission is correct. There is an opportunity
to claim political asylum while passing through immigration control and in that
sense it is practical to do so, although there are no doubt many reasons,
including simple ignorance, why a person may not take that opportunity.
7. It might be argued that it is not practical for a person who is ignorant of
his or her rights to claim political asylum while passing through immigration
control and that "on his arrival" should be construed so as not to prejudice
such a person. In the present case, the tribunal made no finding to explain why
they apparently thought it was impractical for the claimant to claim political
asylum while at Heathrow Airport on the Friday but, in any event, I take the
view that the context and history of the legislation does not permit such a
construction. Firstly, the words "on his arrival" were clearly intended to
introduce a limitation on claimants' rights to obtain income support. Secondly,
it would be immensely difficult to determine which applicants for political
asylum had delayed through ignorance and which applicants had delayed through
other reasons and to draw a line between the different types of circumstances.
Consequently, there would be a substantial risk of unfair differentiation
between applicants. Thirdly, if there were any ambiguity, it would be
permissible to look at the proceedings in Parliament when the Asylum and
Immigration Bill was being debated in order to determine the intention of the
legislature (Pepper v. Hart [1993] AC 593). An Opposition amendment was
narrowly passed by the House of Lords and would have restricted the
regulation-making powers in what is now section 11(1) of the Act so that
regulations could not exclude entitlement to benefit a person who had made an
application for political asylum "on his arrival in the United Kingdom or within
three days of that arrival". The Government defeat in the House of Lords was
reversed in the House of Commons (Hansard, H.C. Vol 281, cols 843-883) and it is
perfectly clear that the House of Commons understood, and intended, that
paragraph 2(b) of Schedule 1 to the Asylum and Immigration Act 1996 would have
the effect contended for by the adjudication officer in this case.
8. There may be cases where a person cannot clear immigration control
immediately because, say, a relevant interpreter cannot be found at the port of
entry, and in such cases the person will not be prejudiced by the delay if "on
his arrival" it is construed as "while clearing immigration control". However,
the tribunal in the present case made no finding that the claimant had not
cleared immigration control before leaving Heathrow Airport on the Friday. No
assertion to that effect has ever been made and it is inherently unlikely that
she did not do so.
9. I am therefore satisfied that the evidence in the papers and the tribunal's
findings did not justify a conclusion that the claimant's application for asylum
had been submitted "on [her] arrival". Accordingly, I am satisfied that the
tribunal erred in law and I allow the adjudication officer's appeal and set
aside the tribunal's decision.
10. As to how I should dispose of the case, the adjudication officer submits:-
".... that the facts of this case are not in dispute and are sufficiently
well documented for the Commissioner to substitute a decision of his own.
This would be that from 24 July 1996 the claimant is a 'person from abroad'
with an applicable amount of income support of nil."
I am satisfied that the claimant cleared immigration control at Heathrow Airport
on Friday 19 July 1996 and that her application for political asylum made on
Monday 22 July 1996 was not made "on [her] arrival". However, that is not
necessarily an end of her claim for income support. In particular, it is
possible that the claimant has ceased to be a "person from abroad". There seems
to have been an argument advanced before the last tribunal to the effect that
regulation 21ZA of the 1987 Regulations (introduced by regulation 3 of the
Income Support and Social Security (Claims and Payments) (Miscellaneous
Amendments) Regulations 1996 from 15 October 1996) might apply to her. It was
unnecessary for the tribunal to deal with that issue. Furthermore, she may have
been granted exceptional leave to remain in the United Kingdom. Those are
questions which first arise in the light of my decision on this appeal. They
have not been addressed by an adjudication officer but either I or, if I were to
refer the case to another tribunal, that tribunal could deal with them under
section 36 of the Social Security Administration Act 1992. On the other hand, it
is pure speculation whether the claimant might succeed in showing entitlement to
income support in respect of any period on those grounds. It seems to me that I
should leave an adjudication officer to investigate those issues and to discover
the claimant's current immigration status and then finally to dispose of the
claim, rather than that I should reserve the claim to myself or refer it to
another tribunal The claimant will be able to appeal against the adjudication
officer's decision if she is dissatisfied with it. Therefore, I will give a
final determination on the narrow question raised on the appeal before me but I
will leave open the claim so that it may be determined by an adjudication
officer.
11. My decision, in substitution for the decision of the tribunal, is that the
claimant did not submit, on her arrival on 19 July 1996 in the United Kingdom
from a country outside the common travel area, a claim for asylum to the
Secretary of State.
Signed
M Rowland
Commissioner
7 August 1997