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[1996] UKSSCSC CIS_564_1994 (11 November 1996)

R(IS) 9/98

Mr. P. L. Howell QC CIS/564/1994
11.11.96 CIS/7250/1995

Persons from abroad - reduced rate paid to refugees before asylum claim decided - whether contrary to the 1951 Geneva Convention and Council Regulation (EEC) No. 1408/71

The claimants were women who had applied for political asylum in the United Kingdom. Whilst their asylum claims were being considered, they were treated as "persons from abroad" under regulation 21(3)(e) of the Income Support (General) Regulations 1987 and awarded income support at the 90% urgent cases rate under regulation 70. Neither claimant had ever worked in the United Kingdom, been required to be available for employment or been liable to pay national insurance contributions, but each had been allocated national insurance numbers for benefit purposes. The claimant in CIS/564/1994 was awarded income support at the urgent cases rate from 24 April 1990. A Home Office letter dated 6 October 1990 informed her that her asylum application had been successful but she did not report this to the Department of Social Security until February 1993. Her full entitlement was backdated by twelve months to February 1992 under regulation 69 of the Social Security (Adjudication) Regulations 1987. The Commissioner granted the claimant leave to appeal against the decision of the tribunal dated 29 November 1990 which confirmed the adjudication officer's decision dated 24 April 1990. The claimant argued that she was entitled to full income support throughout her claim because the 1951 Geneva Convention required the United Kingdom to ensure that refugees received the same treatment as nationals in social security matters. In CIS/7250/1995, the claimant was notified by a Home Office letter dated 2 September 1993 that her claim for asylum was successful. She appealed against the adjudication officer's decision not to review and award her the full rate before 2 September 1993. The tribunal of 7 June 1995 awarded the claimant the full rate of income support retrospectively to 21 December 1992, twelve months before the date of her review request. The adjudication officer appealed to the Commissioner.

Held, allowing both appeals that:

a person was a refugee from the time he fulfilled the criteria contained in the Convention. The determination by the Home Secretary did not make a person a refugee but declared him to be one: Khaboka v. Home Secretary [1993] Immigration Appeals Reports 484 at 489. However, any breach by the United Kingdom of its international obligations under the Convention by withdrawing income support from refugees was not justiciable as the terms of the Convention were not part of domestic law. A breach of the Convention could only be justiciable insofar as the claimant's rights under domestic or European Union law had been infringed (paras. 23, 24 and 25);

there was no scope to look at the terms of the Convention to resolve any ambiguity in national legislation since the effect of regulation 21(3) was clear (para. 27);

the claimants could not rely on Council Regulation (EEC) No. 1408/71 for the period prior to 1 June 1992 as income support was not covered by Article 4 of Council Regulation (EEC) No. 1408/71: Hoeckx v. Openbaar Maatschaopeliik Welziin, Kalmhout (case C-249/83)[1985] 973 ECR, Jackson and Cresswell v. Chief Adjudication Officer (cases C-63/91 and C-64/91) [1992] ECR I-4737 and CIS/863/94 [R(IS) 4/99];

to fall within the scope of Article 2.1, a person had to satisfy two conditions, of being employed or self employed and either a national of one of the Member States or a stateless person or refugee residing within such a State (para. 42). Although the claimants might establish that they were refugees residing in the United Kingdom before the Home Office pronounced on their cases (para. 40), they did not fall within the definition of employed or self employed persons or count as insured under Article 1(a)(i) of Council Regulation (EEC) No. 1408/71 (paras. 47 to 48). Thus, they could not rely on the direct effect of Article 1408/71 to avoid or override the clear provisions of domestic legislation.

The Commissioner set aside the tribunal's decision in CIS/564/1994 because it purported to confirm an award of income support at the emergency rate for an indefinite period and the weekly amounts had not allowed for child benefit. He substituted his own decision that the full rate of income support was payable from 6 October 1990. In CIS/7250/1995, the Commissioner confirmed the adjudication officer's decision to pay full income support from 2 September 1993 but not for any period before that.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

These two appeals which I heard together at an oral hearing raised questions about the proper treatment for income support of people who come to the United Kingdom from abroad, apply for asylum here and are in need of public assistance during the period before their application has been determined. Throughout the periods at issue in these cases the legislation provided for emergency income support for such people at 90% of the normal rate, and this decision is not therefore concerned with the validity of later provisions purporting to withdraw public assistance from them altogether.

Both claimants were represented before me by Mr. Simon Cox of Counsel, instructed by Baileys Shaw and Gillett, Solicitors. The adjudication officers in both cases appeared by Mr. Nicholas Paines of Counsel, instructed by the Solicitor to the Department of Social Security. To all the representatives and support teams I am grateful for the hard work that resulted in the comprehensive submissions made to me, both in writing and over three days of oral argument. All the points made in those submissions and those to the tribunals below have been considered, though they will be referred to in this decision only so far as necessary to explain the conclusions I have reached.

In case CIS/564/1994, the claimant is a lady now aged 36 who has four children but is separated from her husband. She fled to this country from Somalia in August 1989, applied on entry for political asylum, and was granted temporary admission until her application could be determined. Being destitute, she also applied for income support, which was awarded to her at the 90% rate for urgent cases under reg. 70, Income Support (General) Regulations 1987, SI 1987 No. 1967, the full rate being inapplicable because while here on a temporary admission she was a "person from abroad" under reg. 21(3)(e).

On 6 October 1990 her application was accepted and a letter was issued to her by the Home Office recognising her status as a refugee. In accordance with the usual practice in such cases the letter granted her leave to remain in the United Kingdom from that date without any of the conditions normally imposed on short stay visitors, such as not having recourse to public funds. She thereby ceased to be within any of the categories of "person from abroad" and qualified for income support at the normal rates. However she did not report this change in her circumstances to the department until February 1993, and consequently has only been awarded income support at the full rate from February 1992, by a review decision issued in April 1993 which backdated her full entitlement to the twelve months (but no more) then permitted under reg. 69 Social Security (Adjudication) Regulations 1989, SI 1989 No. 2218. Her entitlement for the period down to February 1992, which was determined by an adjudication officer's decision dated 24 April 1990 allowing her only the 90% urgent cases rate, has not been made up retrospectively to the full rate.

Her case is that this is wrong in law, as the Home Office determination showed she was a genuine refugee who should throughout have been given full income support by virtue of the 1951 Geneva Convention on the status of refugees (1954 UN Treaty Series 150) which requires refugees to be given the same treatment as nationals for public assistance and social security. Her appeal is brought with the leave of the Commissioner granted on 13 September 1994 against the tribunal decision of 29 November 1990, which confirmed the award dated 24 April 1990 of specified weekly amounts from 3 April 1990 onwards. Her income support has at all relevant times included additional amounts for her children, and the calculations of 24 April 1990 were intended to take account of the child benefit she also received for them. Because she has them in her care, she has not been subject to any condition about seeking employment, she has never been employed in the United Kingdom, or paid or been liable to pay any national insurance contributions. She has however been allocated a national insurance number in connection with the benefits she has received.

My decision in this case is to reject the claimant's main argument, but still to set aside the tribunal's decision as it is erroneous in law on separate grounds. For the reasons given below the tribunal were in my judgment correct in principle in confirming the adjudication officer's award of benefit at only the 90% emergency rate for the period before 6 October 1990. However it is beyond dispute that their decision as it stands is incorrect, in that it purports to confirm a weekly award based on the 90% rate indefinitely, and the weekly amounts specified from 3 April 1990 do not in fact allow correctly for the child benefit payments, as explained in para. 10 of the adjudication officer's submissions of 1 November 1994 (pages 70 to 71 in this file).

Rather than send the case back for another tribunal hearing when the basic facts are so far as I can see not open to dispute, I give in this case the decision I consider the tribunal should have given, namely to set aside the admittedly incorrect award by the adjudication officer dated 24 April 1990 and direct a recalculation on the correct basis. This is that income support was payable to the claimant at the urgent cases rate for the period down to 6 October 1990 and at the full rate thereafter, at weekly rates that take into account the child benefit payments she received in accordance with the regulations referred to in paragraph 10 of the adjudication officer's submission referred to above. The claimant's entitlement from the beginning of April 1990 to February 1992 is to be recalculated by the adjudication officer accordingly and the details of the calculation supplied to the claimant's representative. If this shows some extra benefit due to the claimant for that period it should be paid to her, as this is a correction on appeal of the decision of 24 April 1990, not a further review subject to any twelve month time limit. If there is any difficulty in carrying this into effect it may be mentioned to me, but I hope that giving the decision in this form will provide a practical solution and make any further appeal or hearing unnecessary, on a total amount that is unlikely to be very large and is now over six years old.

In case CIS/7250/1995, the claimant is a lady now aged 42 who lives with her husband. They arrived in the United Kingdom from Sudan in February 1992 and were given limited leave to enter as visitors. Three days after their arrival they applied for political asylum, and she claimed and was awarded income support at the 90% emergency rate, being also ineligible for the full rate under the regulations pending the outcome of the asylum application as the limited leave to enter brought her within the definition of a "person from abroad" in reg. 21(3).

On 2 September 1993 her application for asylum was accepted and a letter was issued to her by the Home Office, recognising her status as a refugee and granting her leave to remain in the United Kingdom so that she ceased to count as a "person from abroad" for income support. From that time she has been entitled to income support at the full rate by virtue of a review decision dated 20 September 1993. Her income support has at all material times included a disability premium because of her medical condition, so there has been no question of her being required to look for work. She too has been given a national insurance number in connection with her benefits, but has never paid or been liable to pay contributions to the national insurance fund.

In this case, it is the adjudication officer who appeals, with the leave of the tribunal chairman, against the tribunal's unanimous decision of 7 June 1995 awarding the claimant the full rate of income support retrospectively to 21 December 1992. That was twelve months before she made a specific claim to have the benefit backdated at the full rate to the date of her arrival. Again the issue is the correct treatment of the period while a person later determined by the Home Office to qualify for protection under the Geneva Convention is awaiting the outcome of his or her application. This time the adjudication officer says the tribunal have it wrong, since even though later found to be a genuine refugee, the claimant was still a "person from abroad" in terms of the income support regulations during the period before her application was determined and before the basis of her leave to remain in the United Kingdom was altered so that reg. 21(3) ceased to apply to her.

My decision in this case is to allow the adjudication officer's appeal as the tribunal decision is erroneous in law for the reasons given below. I set it aside and in exercise of the power in s. 23(7)(a) Social Security Administration Act 1992 I give instead the decision I consider the tribunal should have given on the facts, which is to confirm the adjudication officer's award of the full rate of income support from 2 September 1993 but not for any period before that, when the 90% urgent cases rate was correct.

Conclusions on the law

Geneva Convention on the status of refugees

The United Kingdom has a long tradition of granting refuge to people fleeing from oppressive regimes in other countries. That tradition has been a beneficial one both in terms of our own self respect as a liberal and humane society and also in terms of the contribution many such refugees have been enabled to make to our national life, and I do not imagine that any but the most bigoted people would wish to see it abandoned. The United Kingdom has also in the past been active in promoting international co-operation and standards of behaviour in this area. It was a signatory to the 1951 Geneva Convention on the status of refugees and had the honour to deposit the instrument of accession which actually brought the Convention into force from 22 April 1954.

The original purpose of the convention, to deal with the problems of refugees and stateless persons in Europe in the aftermath of the Second World War, was reflected the form of Article 1 which defined the refugees within its scope as people who, as a result of events occurring before 1 January 1951, were outside the country of their nationality and unable or unwilling to return to it or avail themselves of its protection by reason of a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. However by the Protocol to the Convention entered into by the contracting states in New York on 31 January 1967 and in force from 4 October 1967, the restriction to events occurring before 1 January 1951 was removed, so that the protections of the Convention now apply to all refugees covered by the definition, and must be accorded to them by all contracting states without limitation as to date.

The United Kingdom is and remains one of the High Contracting Parties to the Convention as thus amended. It is to be noted that the opening words of its preamble refer expressly to the Charter of the United Nations and the Universal Declaration of Human Rights, affirming the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.

In the detailed terms of the Convention that seek to carry these principles into effect the contracting states agree with one another to apply its provisions without discrimination as to race, religion or country of origin; and to apply principles of equal treatment for refugees in relation to various detailed aspects of their own national life, including in Chapter IV housing, public education, public relief, labour legislation and social security. Under Articles 32 and 33, the contracting states agree with one another not to expel refugees who are lawfully in their own territories; and not to return a refugee to the frontier of a territory where his life or freedom would be threatened for reasons such as those which led to his becoming a refugee in the first place (an operation referred to as "refoulement").

It is, and must have been accepted by any contracting state as being, absolutely inevitable that accidents of history and geography may make the cost of carrying out such wide ranging international treaty obligations uneven. It was and is hardly any less inevitable that the authorities of individual states may in practice take differing views of the extent of their own obligations in individual cases; so that a country with a tradition of liberality may find itself in practice shouldering a bigger proportionate share of the burden of actually implementing the high principles to which all contracting states have subscribed. Whether this has now led to such a crisis for the United Kingdom that it has (or ever could) become defensible for us to withdraw even basic humanitarian relief to applicants for refuge within our borders is a matter of political debate; but not something on which it is necessary or useful for me to pronounce. These appeals are concerned only with whether the claimants have been accorded the correct treatment under United Kingdom and European Union social security law.

Two features above all provide the background to the appeals. The first is the obligation of the United Kingdom in Articles 23 and 24 of the Convention to accord to refugees lawfully staying within its territory the same treatment as is accorded to its own nationals with respect to public relief and assistance and with respect to social security, defined as "legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme". The second is that there are present in this country a great many people who have, or claim to have, fled here from oppressive foreign regimes, and are destitute: but are being made to wait for a very long time indeed before the Home Office determines whether or not to declare that they are in fact refugees. Only when, or if, this is done will the executive authorities accept that they are to be permitted to remain here with that status, and accorded the equal treatment the United Kingdom has honourably and unreservedly agreed to give to all such people.

In the meantime, decisions have of course to be made on a week to week basis on whether the cost of providing them with the necessities of life is to be met out of public assistance as it would be for our own nationals. Such decisions come down to saying either yes or no each week to people who are often destitute. In each week therefore, the income support authorities are involved in having to make decisions that must inevitably pre-empt to some extent in a practical sense the main decision on refugee status which is still awaited from the Home Office, since there is little hope of later recoupment from a destitute person refused asylum, and little point in declaring a person to be entitled to full public assistance as a refugee only after a delay in which you have allowed him to starve.

Refugee status recognised or afforded - which is to be master?

The first question that was raised in the argument before me was whether a person could count as a "refugee" in any sense relevant to determining the applicable United Kingdom law unless and until a letter had been produced by the Home Office saying so. According to the evidence before me, obtaining such a letter can be a very slow process indeed. There are not just thousands, but tens of thousands of undecided applications in the hands of the Home Office going back over periods of years, with several hundred applications made before 1989 that had still not had a determination made on them by the end of 1995. Nevertheless, I was told, the practice of the Home Office if and when a decision is finally made in favour of an applicant is to issue a letter "granting asylum" from the date of the letter itself, but not acknowledging refugee status from any earlier date.

The initial submissions to me on behalf of the adjudication officer, from which Mr. Paines never formally resiled, repeated a view expressed by the Department in evidence to the House of Commons Social Security Committee on 5 December 1995 (minutes of evidence, Q37) that "we only acquire obligations to a person as a refugee when he or she is afforded refugee status by the Home Secretary. A person becomes a refugee entitled to the protection of the 1951 Convention at the end of the considerative process, not at the first moment on which a well founded fear of persecution is suffered."

Accordingly, the argument runs, there could be no question of the United Kingdom being in breach of its treaty obligations in failing to afford equal social security and social welfare benefits to asylum seekers at any point before the issue of the Home Office letter "affording" refugee status, because before then they do not count as refugees. That argument was said to be based on advice in the possession of the Home Office but when I asked to see it for the purposes of this appeal my request was declined; though I am hard put to it to understand why advice on such an important point affecting the public interest should have to be kept secret and not disclosed either to the House of Commons or in the judicial proceedings before me.

I am bound to say I think it doubtful that any professional lawyer could have tendered such advice, and I find the proposition thus stated to be logically, morally and legally indefensible. Under our domestic procedures the question of whether an asylum seeker is in fact a refugee is a question to be determined by the Secretary of State and the immigration authorities under the immigration legislation, which provides for proper rights of appeal and is subject to judicial control by way of review. See for example R v. Home Secretary Ex Parte Bugdaycay [1987] AC 514, per Lord Bridge at 522-523. However not a word in that or any other authority of which I am aware supports either expressly or impliedly the proposition that the Home Secretary in making such determinations does so in any other way than by ascertaining the existence or otherwise of a status, on objective criteria having regard to existing facts. That status must by definition exist before the determination is made, and is not therefore created by it.

Everything I have read in that and the other authorities cited to me supports what common sense and justice suggest, that as observed by Nolan L J in Khaboka v. Home Secretary [1993] Immigration Appeal Reports 484 at 489, the fact that a person is a refugee exists independently of any pronouncement on it by the Home Office. In his words, the term "refugee" means what it says. It includes someone who is only subsequently established as being a refugee. Or in the words of the United Nations High Commission on Refugees quoted by Lord Nolan on the same page "a person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognised because he is a refugee."

I was surprised that any United Kingdom government would seek to assert the contrary in evidence to the House of Commons or in the proceedings before me, especially with high judicial authority directly in point. There is a precedent for that kind of logic (Carroll, Through the Looking Glass [1887] Ch. 6 per Humpty Dumpty) but not one I wish to be responsible for applying to the social security legislation of the United Kingdom or the European Union. The conceit that no one can be a refugee until the Home Secretary chooses to say so is not mere nonsense but callous and unprincipled nonsense, and I reject it insofar as it has any bearing on the issues before me.

Breaches of Convention only justiciable where rights exist in UK or EU law

Whether the United Kingdom has in fact been placed in breach of its international treaty obligations by the measures taken by the present government to withdraw income support from asylum seekers who turn out to be genuine refugees is not a justiciable issue before me, as the terms of this international treaty do not form part of the United Kingdom's domestic law; nor is it an issue that needs to be determined for the purposes of these appeals. I would only say that I am prepared to assume in favour of these claimants, whose status as genuine refugees is not open to doubt, that any failure to pay them public relief and assistance by way of income support on the same basis as nationals until after their asylum applications were determined by the Home Office may well have been a breach of the United Kingdom's obligations under Article 23 of the Convention. This indeed appears to be the case if they were in fact refugees and were lawfully staying in the territory of the United Kingdom, which second condition they also appear to meet, as there has been no suggestion at any stage that either their entry or their presence here was ever illegal. (I was also referred to Article 24, but I doubt if any separate breach of it is involved as the two articles appear to make a distinction between social security and social welfare, with public assistance such as income support coming into the latter category.)

But even if one makes the assumption that the treatment of these claimants has been in breach of an international obligation, it is still necessary to establish that this makes some difference to their rights under United Kingdom domestic law or European Union law before it can do them any good. Those rights must therefore be identified.

"Persons from abroad" under income support regulations

It was common ground before me that under reg. 21(3) of the Income Support (General) Regulations 1987 each of these claimants was a "person from abroad", entitled only to emergency income support at the reduced rate for urgent cases under reg. 70, for any week before her refugee status was finally recognised by the Home Office. In my judgment there can be no doubt that this is the clear effect of the national legislation of the UK, and there is therefore no scope for me to look to the terms of the international treaty in order to resolve any ambiguity in the domestic provisions because in this respect there is none.

The only way therefore in which some right to more generous treatment might arise is if there is some overriding provision or principle of European Union law to which I am obliged to give effect by virtue of the EC Treaty and the European Communities Act 1972. This issue occupied the main part of the argument before me.

Council Regulation (EEC) No. 1408/71

On behalf of the claimants, Mr. Cox argued that the provisions of Council Regulation (EEC) No. 1408/71 of 14 June 1971 "on the application of social security schemes to employed persons, to self employed persons and to members of their families moving within the Community" did have just this effect.

This regulation has now been considered by the Commissioners and the European Court of Justice in numerous social security appeals. It was made by reference to Articles 2, 7 and 51 of the Treaty of Rome: see the first sentence of the preamble. These are the articles that define the main purpose of the Treaty, prohibit discrimination on grounds of nationality and provide for measures in the field of social security to ensure freedom of movement for workers. The preamble further declares the objective to "bring together in a single legislative instrument all the basic provisions for implementing Article 51 of the Treaty for the benefit of workers, including frontier workers, seasonal workers and seamen" and that in view of differing provisions in national legislation it is "preferable to establish the principle that the Regulation applies to all nationals of Member States insured under social security schemes for employed persons". There is no indication of any wider objective beyond the community purposes expressly set out, and no mention of it being any part of the purpose of the regulation to enforce provisions of the 1951 Convention on Refugees in any wider area beyond the declared scope of the regulation itself or the free movement of workers dealt with by Article 51 of the EC Treaty.

The principal issue that arises is whether the claimants are within the scope ratione personae of the regulation at all, so as to be able to rely on its direct effect in the United Kingdom notwithstanding the express provisions of domestic law. There is a subsidiary issue whether if they can do this, the income support benefits they seek were in any case, at the material time, within the scope of the regulation ratione materiae by counting to any extent as "social security" benefits covered by Article 4 of the regulation which specifically excludes "social assistance" from its application.

Scope of the regulation ratione materiae

Dealing with the subsidiary issue first, I am not persuaded that benefits under the United Kingdom income support scheme, which is a means-tested general social assistance or social welfare scheme, fall within the scope of Article 4 of the Council Regulation at all, apart from the effect of any special declaration by the United Kingdom under Article 5. It seems to me quite clear that the various branches of "social security" listed in Article 4.1 are all specific risks of the kinds covered by the contributory or non-contributory social insurance type of schemes commonly referred to in continental Europe as "social security" as distinct from general means-tested welfare or social assistance. This is made clear by the express terms of Article 4.4 which confirm that the regulation does not apply to social assistance.

For authority that a benefit such as income support does not have the character of a social security benefit for this purpose even though some elements of the calculation may take into account old age, sickness etc., see ECJ case 249/83 Hoeckx, judgment of 27 March 1985, [1985] ECR 973; joined cases C-63/91, C-64/91 Jackson and Cresswell, judgment of 16 July 1992, [1992] ECR I-4737, and the Commissioner's decision in case CIS/863/1994 [R(IS) 4/99] with which I respectfully agree.

The income support benefits sought by these claimants were therefore in my judgment outside the scope ratione materiae of Article 4 of Council Regulation 1408/71 at all times before 1 June 1992, when it is common ground that the United Kingdom brought income support within the ambit of Article 4 by exercising its power as a member state to make a designation pursuant to Article 5. The effect is that the claimant in case CIS/564/1994 would not be able to base her claim to additional income support on the regulation in any event since the disputed period ended on 6 October 1990, and the claimant in case CIS/7250/1995 could only hope to base such a claim on the regulation for the period 1 June 1992 to 1 September 1993.

Scope of the regulation ratione personae

I turn finally to whether the claimants can bring themselves within the scope ratione personae of the Council Regulation and thus have the standing to make a claim that it has direct effect in their favour to override the domestic legislation. To establish this they must show that they are "Persons covered" under Article 2.1 which so far as material reads:

"1. This Regulation shall apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors."

If the claimants are persons within this class, then they are (or should be) able to rely on the operative provisions of Article 3 ("Equality of treatment") that:

"1. Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State."

There is a preliminary point on the scope of the doctrine of the direct effect of community instruments, which had it arisen for decision in this case I might have considered necessary to refer to the European Court of Justice for a preliminary ruling under Article 177 of the Treaty of Rome. This is whether the doctrine of direct effect could be relied on by a refugee resident in the territory of one single member State, so as to override the legislation of that State and make him entitled to the same treatment as one of its own nationals, in a case where there was in fact no involvement of any other member State, and thus no question of free movement of workers within the community apparently raised by the case at all. So far as I am aware this point is undecided.

Apart from the special position of a refugee, there appears to be no case where the direct effect of community law under Article 3 might need to be invoked which did not involve at least some element of cross border movement or payment within the community, so as to give rise to a question such as whether a community national was entitled to equal social security benefits despite being resident or having worked in a community territory different from that of his nationality. It may be arguable therefore that the "direct effect" for which the claimants in this case contend is itself outside the proper scope of the Regulation altogether, and thus outside the proper scope of the principle of direct effect to override a member State's domestic law in the interests of the wider community legal order. But on the view I take of the remaining issues on the scope ratione personae of the regulation, it is not necessary for me to consider this question further or express a concluded view on it as it does not in fact arise. It would not of course be appropriate for me to make any reference to the European Court of Justice when it appears to me clear that the question must be hypothetical.

Refugees residing

The contention that the claimants in this case fall within the scope of Article 2 depends on their being able to show both that they are "refugees residing" within the territory of the United Kingdom during the period between their first claim for income support and their refugee status being recognised by the Home Office, and also that they are "employed or self-employed persons who are or have been subject to the legislation of one or more Member States".

For the reasons already given I am quite satisfied that they were in fact refugees within the meaning of the Geneva Convention at all material times. As Article 1 of the Council Regulation expressly adopts the meaning in the Geneva Convention it is also quite clear that they were refugees for the purposes of the regulation at all material times, without regard to anything said or not said by the Home Secretary in the United Kingdom or any other official in any member State.

Moreover there is nothing in my judgment that prevented these claimants from establishing themselves as refugees residing in the United Kingdom before the time the Home Office pronounced on their cases. By Article 1(h) residence means habitual residence, and for the reasons I attempted to give in case CIS/1067/1995 [R(IS) 6/96] (since approved in its essentials by other Commissioners), the test to be applied is a factual and practical one and not one that should depend on the date a piece of paper is obtained from a government department. If the departmental procedures are so prolonged that applicants for asylum have time to establish habitual residence in this country before their cases are determined, that is an argument for speeding up the procedures, not for altering the meaning of "habitual residence" so that it fails to pay regard to the actual facts.

I do not accept the argument advanced by Mr. Paines that although all the normal elements to establish settled and habitual residence may be present, an asylum seeker who has been living as a resident here for months or even years can never be a habitual resident so long as their presence remains "precarious" in the sense that the Home Office could turn down their application and deport them somewhere else. Many habitual residents of these islands are here "precariously" in the sense that their leave to remain is indefinite and could in theory be terminated at any time; and in any case the restrictions on what the United Kingdom can do to deport or expel refugees make the presence of asylum seekers here a good deal less than totally precarious.

Employed or self-employed persons

The question therefore comes down to whether the claimants count as "employed or self-employed persons who are or have been subject to the legislation of one or more Member States" within Article 2. In saying this I reject an argument by Mr. Cox that this is a condition that does not apply to refugees at all. It appears to me quite incontrovertible from the syntax of Article 2.1 that to fall within its scope a person must satisfy the two conditions, of being an employed or self-employed person and either a national of one of the Member States or a stateless person or refugee residing within such a State. The contrary in my judgment is simply unarguable on the language used. Moreover while I accept Mr. Cox's submission that the language of a community instrument has to be construed having regard to the fundamental principles of non-discrimination laid down in the Treaty itself and in such documents as the European Convention on Human Rights and relevant United Nations Conventions, it does not seem to me that to read Article 2.1 as meaning what it actually says in any way infringes any of these fundamental principles or is inconsistent with them. True it is that the regulation does not legislate for everything in the Convention, but that is not its purpose. Mr. Cox's argument really amounted to saying that I should distort the language of the Community instrument in order to try and make it achieve some additional purpose outside the declared scope of the regulation itself, and outside anything recorded as a community objective in its preamble. That is an illegitimate approach to the construction of a Community instrument, for exactly the same reasons as it would be unjustifiable in construing a piece of domestic legislation.

The expressions "employed person" and "self-employed person" are defined in Article 1(a) of the regulation in four separate sub-heads, of which I think it was common ground by the end of the argument that only (i) could conceivably apply. To avoid any doubts, I should say that I have considered whether any of heads (ii) to (iv) apply and I am quite satisfied that there can be no question of this as regards either of these claimants. Neither of them is a person who is compulsorily insured under a social security scheme for all residents or for the whole working population in such a way that they fall within (ii); neither of them is compulsorily insured under a standard scheme for the rural population in accordance with the criteria referred to in (iii); and neither of them is voluntarily insured and carrying out an activity as an employed or self-employed person or otherwise within the conditions of (iv).

The "legislation" by reference to which a person has to be or have been subject to fall within Article 2.1 of the regulation is defined by Article 1(j) in respect of each member State as "statutes, regulations and other provisions and all other implementing measures, present or future, relating to the branches and schemes of social security covered by Article 4(1) and (2) ". The provisions of the United Kingdom legislation under which the income support scheme is established would, for the reasons I have explained above, therefore count as "legislation" for this purpose only after 1 June 1992, when income support was designated as within Article 4 and the extra words in the definition added.

Head (i) of Article 1(a) comprises "any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed or self employed persons;" There is no separate definition of a social security scheme beyond what one can deduce from the list of branches of social security within the scope of the regulation in Article 4(1), the exclusion of social assistance in Article 4(4), and the reference to "insurance" in each one of the four heads of Article 1(a).

In my judgment neither of the claimants fell within the definition of an employed or self-employed person or could count as "insured" under Article 1(a)(i) at any time material to these appeals. Throughout the periods in dispute it was the case that neither had ever been admitted as a member on a contributory or non-contributory basis to any social security scheme (of the kind meant by that expression in the regulation) in the United Kingdom, neither was or had ever been employed or self-employed within the United Kingdom, neither was obliged to join any such scheme in the United Kingdom or to pay any contribution nor had they done so, and neither could ever become entitled to any benefit under any such scheme without also complying with some additional condition such as taking up employment or paying a contribution, which they had not.

It follows that in my judgment neither of the claimants fell within the scope ratione personae of Council Regulation (EEC) No. 1408/71 at any material time, and neither can rely on its direct effect to avoid or override the clear provisions of the United Kingdom domestic legislation.

This conclusion represents what is in my view the only reasonable reading that can be given to the language of Article 1(a). It is reinforced by the reality that neither of the claimants at the material time was in fact engaged in any employment or self-employment, and neither was an insured person under the United Kingdom social security scheme; although like any other person present in Great Britain and meeting the conditions for means-tested social assistance, they were given such assistance which is paid for out of general taxation under the income support scheme.

The fact that in accordance with the administrative practice of the Department of Social Security national insurance numbers had been allocated to each of them, and entries made on their records which, if they subsequently did become insured persons under the normal social security schemes, might later give rise to some credit against contribution liabilities in respect of the period when they were here as asylum seekers, does not in my judgment make any difference at all to this conclusion. If and when they do come within the normal ambit of the social security schemes by taking employment or paying contributions, then they will become insured persons; and may later be able to claim additional "credits" retrospectively. The mere fact of records being kept of the potentially relevant periods in case this does happen does not by itself turn them into insured persons, or entitle them to anything.

For those reasons, I hold that there is nothing in either European Union law or in the way the United Kingdom's international obligations under the Geneva Convention fall to be interpreted that has any effect to alter the clear provisions of reg. 21(3) of the income support regulations, by which these claimants were "persons from abroad" and consequently not entitled to the normal rate of income support at any time before the issue of the usual Home Office letter recognising their refugee status and granting them leave to remain in the United Kingdom in that capacity. The practical results differ between the two cases for other reasons, and are set out in the earlier part of this decision.

Date: 11 November 1996 (signed) Mr. P. L. Howell QC

Commissioner