England and Wales Court of Appeal (Civil Division) Decisions

Anufrijeva v Secretary of State for the Home Department Secretary of State for Work and Pensions [2002] EWCA Civ 399 (22nd March, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SIR CHRISTOPHER BELLAMY

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd. March 2002

Lord Justice Schiemann:

The is the Judgment of the Court.

1. Before the Court is an appeal by a refugee claimant from a decision of Sir Christopher Bellamy in a case where what fell for decision was the moment at which she lost her entitlement to income support under Part VI of the Income Support (General) Regulations 1987 (“the 1987 Regulations”). Although the relevant regulation has now been repealed and replaced, we are told that our decision in this case is of some consequence for some 9000 other claimants and perhaps more. The underlying problem is one which has been considered by this court in R v Secretary of State for the Home Department, ex Salem [1999] Q.B.805 (Brooke LJ and Sir John Balcombe, Hobhouse LJ dissenting). That case has subsequently been applied in R (Paulo) v Secretary of State [2001] Imm. AR 645. Sir Christopher in a careful judgement indicated that he considered that there was much to be said for deciding the case in favour of the applicant but that he was bound by Salem to decide the case against her. She appeals to this court and submits that Sir Christopher was not bound, or at any event this court is not bound, by Salem. We announced at the end of the hearing that we considered that we were bound by Salem and therefore dismissed the appeal. We said we would give our reasons later. She then asked for permission to appeal to the House of Lords. We said we would decide that question at the same time as giving our reasons for dismissing the appeal.
2. Income support is an income related benefit payable under Part VII of the Social Security Contributions and Benefits Act 1992. The amount of any benefit payable to a claimant is calculated by reference to what the “applicable amount” in his case may be: section 124.
3. The applicable amount in the case of a “person from abroad” (as defined by Regulation 21(3) of the 1987 Regulations) is generally nil. Accordingly such individuals are not entitled to any amount of benefit. Those individuals include persons who have been allowed temporary admission to the United Kingdom, such as, for example, those who (like the appellant) claim asylum on arrival.
4. However, under the provisions for “urgent cases” contained in Part VI of the 1987 Regulations, the applicable amount for an “asylum seeker” falling within Regulation 70 (3A) was not nil. It was 90% of the normal amount.
5. Regulation 70 (3A) provided that:

“..... a person –

(a) is an asylum seeker when he submits on his arrival ..... in the United Kingdom .... a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom’s obligations under the [Refugee] Convention for him to be removed from, or required to leave, the United Kingdom and the claim is recorded by the Secretary of State as having been made;

….... and

(b) ceases to be an asylum seeker –

(i) in the case of a claim for asylum which .... is recorded by the Secretary of State as having been determined (other than on appeal) or abandoned, on the day on which it is so recorded.....”

6. It is the words which we have placed in italics which fall for construction in this appeal.
7. The function of Regulation 70 (3A) was to identify those who were “asylum seekers” who might be entitled to income support under the urgent case provisions. It is to be noted (i) that an individual became an “asylum seeker” for this purpose when a relevant claim was “recorded by the Secretary of State as having been made” and (ii) that he ceased to be an “asylum seeker” “on the day on which [his claim] is ... recorded by the Secretary of State as having been determined (other than on appeal) or abandoned”. Entitlement for this purpose thus began and ended when the relevant event was “recorded” by the Home Secretary.
8. The facts of the present case were not in dispute. The claimant submitted a claim for asylum on arrival on 31 August 1998 and shortly thereafter started to receive income support. On 20 November 1999 a gentleman in the Immigration and Nationality Directorate of the Home Office prepared and signed a letter on behalf of the Secretary of State notifying her that the Secretary of State had concluded that she did not qualify for asylum. On the same day the same gentleman prepared a file note in relation to the claimant which contained the following: “For the reasons given in the letter aside, this applicant has failed to establish a well founded fear of persecution. Refusal is appropriate. Case hereby recorded as determined.” That decision was then communicated to the benefits agency – an executive agency of the Department of Social Security. They, on 9 December 1999 sent the following letter to the claimant

Your Claim for Income Support

We need your order book back because of a change to do with your income support. … Do not cash the book again. Use the envelope and the reply slip we have sent you. The envelope does not need a stamp.

9. No indication is given in that letter as to what change had occurred in relation to her income support. The letter of 20 November, in accordance with the then prevailing practice, was not sent to her for over four months after it had been signed. It was sent in April 2000 when she was sent a notice of refusal of leave to enter.
10. The issue in the present case was whether she is entitled to receive income support between December and April. The Secretary of State contends, and the judge found, that her claim for asylum was recorded by the Secretary of State in November 1999 as having been determined. The appellant contends that what happened in November is not properly so described. She submits that the claim was not determined until April 2000.
11. As we have already said, the Judge upheld the contention of the Secretary of State because he held that he was bound by the decision of this court in Salem.
12. The first question we have to decide is whether we too are bound by Salem. Mr Manjit Gill Q.C. submits that we are not. we now give our reasons for concluding that we are so bound.
13. The facts of Salem were, in so far as they concerned the decision making process, as Mr Gill conceded, indistinguishable from the present case. From the report of the decision in the Court of Appeal and of the hearing in the House of Lords [1999] 1 A.C.450 it appears that they were as follows. The claimant claimed asylum on arrival in this country on 17 April 1997. He was told he had 28 days in which to make further representations before a decision would be made. The person responsible for making a decision on the case did not in fact refrain from acting during that 28 day period. She received from someone junior in the Department a draft letter of refusal of the asylum claim. On 7 May (before the expiration of the 28 day period) she entered the following on a sheet in Mr Salem’s file : “Asylum has been refused on 7.5.97 and the claim is hereby recorded as having been determined.” In fact no further representations were received within the 28 day period. Nor was Mr Salem informed in May of what had gone on in the Home Office. On 15 August 1997 Mr Salem’s solicitors sent lengthy representations to the Home Office in relation to the asylum claim. The Asylum directorate said that those representations would be considered. On 12.9.98 they asked for further information “ in order for the Secretary of State to fully consider his asylum application.” In September or possibly October Mr Salem ceased to receive income support. In due course (if that be the right phrase) he received a letter dated 5.11.97 which stated: “Your claim for income support has been terminated as of 5.9.97. That is because the Home Office informed the Benefits Agency that you had been refused asylum.” On 20 November 1997 he applied for judicial review of the decision of 5.9.97 to notify the Home Office that his claim for asylum had been determined. Tucker J refused leave but he was granted leave by this court. Further representations were made by his solicitors. Mr Salem was interviewed in January 1998. In March 1998 this court dismissed his claim for judicial review. In May 1998 the directorate informed him that the Secretary of State had refused his claim for political asylum. He was refused leave to enter. He appealed to a special adjudicator who allowed his appeal. This in effect left no issue outstanding and so the House of Lords (which had in June 1998 given him leave to appeal) gave no substantive decision on the appeal to it from this Court.
14. The crucial points to note for present purposes are that the only record of a determination upon which the Secretary of State relied was that made on 7.5.97. That was long before the applicant was informed of the Secretary of State’s decision on his asylum application and before he was refused leave to enter.
15. The decision of the majority is contained in the judgement of Sir John Balcombe with whose reasons Brooke LJ expressed his agreement – see p 823E and 829F. He rejected the submission that the Secretary of State could not validly record the determination of the claim for asylum until the immigration officer refused the immigrant leave to enter. He held that the applicant was not entitled, prior to the determination by the immigration officer of his application for leave to enter, to notification of what had been the decision of the Secretary of State in relation to the claim to asylum. He held that what had taken place in that case on 7.5.97 amounted to a recording of a determination.
16. In our judgment it is clear beyond argument that if that conclusion was right then it must equally be right to conclude in the present case that what took place on 20 11.99 amounted to a recording of a determination. We understand Mr Gill to accept this.
17. He advanced however a number of criticisms of Salem. In substance these submissions were the same as those which attracted the judge. For present purposes We are prepared to assume without deciding that criticism can validly be made of the decision in Salem. That fact, if it be a fact, as Mr Gill recognises does not entitle the court to reach a different conclusion in the present case. The doctrine of stare decisis has advantages and disadvantages. Some legal systems have the doctrine. Others do not. We have it at the level of the Court of Appeal and below but not at the level of the House of Lords.
18. The circumstances in which this court is entitled to depart from one of its previous decisions are clearly set out in a number of decisions. We were referred in particular to Limb v Union Jack Removals [1998] 1 W.L.R. 1344 (see in particular paragraph 43) and Morelle Ltd v Wakeling [1955] 2 Q.B.379.
19. From those decisions it is clear that where the previous decision was reached by the court in forgetfulness of an earlier decision binding upon it or of a statutory provision, and where, had the court had that decision or provision in mind, it would inevitably have reached the contrary decision, this court is free to depart from the previous decision. That however is not the present case. The relevant matters were argued in Salem and Mr Gill has not been able to point to any statutory provision or binding case law which was not brought to the attention of the court.
20. It is true that there can be cases, as Morelle indicates, which do not fall within the category identified in the previous paragraph and in which this court will nevertheless be prepared to depart from a previous decision. But these are rare.
21. Lord Evershed M.R. said this in Morelle at page 405:

“.... it was the contention of the Attorney-General that the question whether a decision had been given per incuriam was not to be determined according to any hard and fast rule, but was one of degree, depending upon the special circumstances of the case.....

We have been unable to accept this argument. As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be .... of the rarest occurrence...... It is, in our judgment, impossible to fasten upon any part of the decision under consideration or upon any step in the reasoning upon which judgments were based and to say of it: “Here was a manifest slip or error”. In our judgment, acceptance of the Attorney-General’s argument would necessarily involve the proposition that it is open to this court to disregard an earlier decision of its own .... whenever it is made to appear that the court had not upon the earlier occasion had the benefit of the best argument that researches and the industry of Counsel could provide. Such a proposition would, as it seems to us, open the way to numerous and costly attempts to re-open questions now held to have been authoritatively decided.”

22. Lord Donaldson of Lymington M.R. in Rickards v Rickards [1990] Fam 194 said this at page 203 after referring to Morelle and some other cases:

“These decisions show that this court is justified in refusing to follow one of its own previous decisions not only when that decision is given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding upon it, but also, in rare and exceptional cases, if it is satisfied that the decision involved a manifest slip or error. In previous cases the judges of this court have always refrained from defining this exceptional category and I have no intention of departing from that approach save ... to say that they will be of the rarest occurrence. Nevertheless some general considerations are relevant. First, the preferred course must always be to follow the previous decision, but to give leave to appeal in order that the House of Lords may remedy the error. ... Second, certainty in relation to substantive law is usually to be preferred to correctness, since this at least enables the public to order their affairs with confidence. Erroneous decisions as to procedural rules affect only the parties engaged in the relevant litigation. This is a much less extensive group and accordingly a departure from established practice is to that extent less undesirable. Third, an erroneous decision which involves the jurisdiction of the court is particularly objectionable .....”

23. Mr Gill submitted that the decision in Salem was so manifestly wrong that we ought to regard the present case as an exceptional case entitling us to depart from it. He pointed out that the statutory construction adopted is of widespread importance and, if it is wrong, is being wrongly applied to many cases. He pointed to the fact that the House of Lords gave leave to appeal and that circumstances then arose which deprived it of opportunity of considering the point.
24. We do not regard the decision in Salem as manifestly wrong. The policy stance which (if the construction adopted there by the court of the relevant regulation be correct) the legislator adopted is not so manifestly absurd that, rather than believe that this was indeed the policy stance taken by the legislator, this court should adopt a different construction of the regulation. Nor do we regard the approach of the majority of the court in Salem to the question of what constitutes a determination and recording of a claim for asylum as manifestly erroneous. Mr Gill’s arguments are relevant to his application for leave to appeal. They are not ones which (even if correct) entitle us to depart from the decision in Salem. Even if we were persuaded by his submissions to the effect that the decision of this court in Salem was manifestly wrong, which we are not, the citation which we have made from Lord Donaldson’s judgement in Rickards leads to the conclusion that we should not depart from Salem but let the House of Lords decide whether or not it wishes to overrule Salem.
25. On those grounds we would dismiss this appeal.
26. There remains the application for leave to appeal to the House of Lords. We know from their Lordships’ grant of leave in Salem that the House considered the present point to merit its attention. We know too that the point became moot because Mr Salem was accorded refugee status while the appeal was pending, and that their Lordships declined to exercise their power to hear the case nevertheless because they did not consider that the circumstances made it appropriate to do so: see [1999] 1 AC 450.
27. It is relevant to recall why, according to Lord Slynn (with whom the other members of the House agreed), this was so:

“The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.

I do not consider that this is such a case. In the first place, although a question of statutory construction does arise, the facts are by no means straightforward and in other cases the problem of when a determination is made may depend on the precise factual context of each case. In this very case, the first issue is expressed to arise “On the facts of this case;” the second issue concerns the question whether the Secretary of State had any discretion to record and rescind his decision and whether the discretion was exercised rationally and fairly in the instant case.

In the second place, Mr. Pannick, on the basis of instructions from both the Home Office and the Department of Health and Social Security, told us that only in a few cases has this question arisen. In Reg. v. Secretary of State for the Home Department, Ex parte Karaoui The Times, 27 March 1997 the issue was whether there was a record; the determination was quashed because there was no record. In Reg. v. Secretary of State for the Home Department, Ex parte Bawa, (unreported), 27 October 1997 the claim was accepted by the Home Office after the trial judge’s decision. In two other cases, applications are being made for judicial review, but leave has not yet been given. The unusual facts of the present case do not seem to provide a good basis for the matter to be raised as a general principle, the particular lis has gone.

This was not brought as a test case and in my view these factors outweigh any possible advantages for the legal aid board in dealing with this case, which has proceeded so far.

Moreover, pursuant to the White Paper published in 1998, it may be that the procedures to be followed will be reconsidered.”

28. The picture before us is different. The transitional Regulations which followed the revocation of those which were under challenge in Salem reproduced the contentious provision (with the seemingly immaterial difference that “decision” has replaced “determination”). While for more recent asylum-seekers a new Home Office-based system of support is now in place, and although the present case is the only known challenge to the old system before the courts, we are told by both leading counsel that some 9000 applicants are in the same situation as Ms Anufrijeva.
29. We have also been told by leading counsel for the Home Secretary, Mr John Howell QC, that the delay of over four months between the preparation and the dispatch of the letter explaining why asylum has been refused was not accidental: it was a consistent practice. But for it, the present issue of law would have no significance. Mr Howell was wholly unable to explain it, let alone justify it. He was able to do no more than read us part of an affidavit which had been sworn in Salem which asserted that the implications of cost and effort if interim notifications were sent out were too great. When one bears in mind first that the asylum-seeker’s ability to contest the refusal of asylum is entirely dependent on receipt of the Home Secretary’s reasons for refusal, and secondly that the letter containing full reasons is already on file and that sooner or later the Home Office will have to put it in an envelope and post it, even the flimsy explanation we were given falls away. Since Mr Howell was able to tell us that the practice is now to send out a prompt notification (though he could not tell us whether it included reasons, and Mr Gill’s instructions suggested that it did not), one is left wondering what the real reason was. Ms Anufrijeva’s inability, her benefit having been stopped, to find £17 to travel to Gatwick for her “reasons for refusal” interview gives little to be proud of.
30. We are of course aware that the Secretary of State’s decision to refuse asylum is separate from, but a necessary precursor of, the immigration officer’s decision to refuse leave to enter, and that it is only after the latter that a right of appeal against both decisions arises. This might be thought to support the construction adopted in Salem. However, we also bear in mind the purpose of the regulation, as explained by the Secretary of State to the Social Security Advisory Committee in accordance with section 174(2) of the Social Security Administration Act 1992 (quoted by Neill LJ in R v Secretary of State for Social Security, ex parte JCWI [1997] 1 WLR 275, at 280):

“8. Any British citizen whose claim for social security benefit is refused is not entitled to receive that benefit while appealing against refusal. Yet under the existing rules any asylum seeker whose claim for asylum is rejected by the Home Office can continue to claim benefits while appealing against refusal. As a result a high proportion of asylum seekers whose asylum claim is rejected appeal against that decision, even though only 4 per cent. Of such appeals are upheld. The Regulations submitted to the committee would put asylum seekers on a similar basis to British benefit claimants. They will continue to be entitled to appeal, but will not be able to receive benefits while doing so . . .”

Under this policy, once an asylum seeker knows that her application has been refused, and that she is not to be given leave to enter the country on any other basis, and has the reasons for those decisions, she can reasonably be expected to make a choice: either to accept the decision and leave or to stay and fight but without recourse to state benefits. But she cannot reasonably be expected to make that choice before she knows of the decisions and the reasons for them. There is nothing in the material before us to suggest that it is consistent-p with the declared purpose of the regulation to expect her to do so. This must cast at least some doubt upon the construction of the regulation adopted in Salem or at least on the practice of ‘recording’ the decision long before the asylum seeker learns that, let alone why, it has been made.

31. In this situation one can perhaps add to the already powerful reasons contained in the judgment of Hobhouse LJ (as he then was) in Salem for doubting the Home Secretary’s construction of the Regulation, the citation by Sir Christopher Bellamy QC in the present case (para. 97) of the passage from paragrpah 15 of Racke v Hauptzollampt Mainz. “A fundamental principle in the Community legal order requires that a measure adopted by the public authorities shall not be applicable to those concerned before they have the opportunity to make themselves acquainted with it.”
32. It seems to us that the facts of this case present no unique or unusual features; that they pose the same question as their Lordships considered deserving of their attention in Salem; and that the answer to the question will determine the legal rights of a finite but significant number of similarly placed individuals. In these circumstances the case seems to us to be one of the rare instances in which we ourselves should grant leave to appeal to the House of Lords.
Order: Appeal dismissed; costs of the appellant to be assessed in accordance with the Community Legal Service (Costs Regulations 2000). (Order does not form part of the approved judgment)