UK Social Security and Child Support Commissioners' Decisions

[1997] UKSSCSC CIS_143_1997 (07 August 1997)


 


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