UK Social Security and Child Support Commissioners' Decisions

[1998] UKSSCSC CIS_2719_1997 (18 March 1998)


 


APPENDIX

Commissioner's File: CIS/2719/1997

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. The decision of the social security appeal tribunal dated 11 December 1996 is not erroneous in law.
2. The claimant appeals, with the leave of the chairman, against the tribunal's decision that the claimant was not entitled to income support from 24 July 1996.
3. The claimant came to this country from Congo-Brazzavile on 22 April 1996. She was suffering from the after effects of ill-treatment. She was accompanied by an "agent" upon whom I understand she was relying to arrange her move from Congo-Brazzavile to Great Britain. He had told her that if she were asked any questions when entering this country she should say that she was his wife. At Heathrow Airport they both passed through Immigration Control without being detained for questioning. They then went to a house where the claimant was given money and instructions as to how she should get to the Immigration and Nationality Department of the Home Office in Croydon. She went there and made an application for political asylum. She therefore had made her application for political asylum on the same day as she arrived in the United Kingdom, although some hours after she left the airport and at a place several miles distant from the airport.
4. On 31 May 1996 she claimed income support. The claim was refused on the grounds that she was a person from abroad as defined in regulation 21 of the Income Support (General) Regulations 1987 which meant that her applicable amount for Income Support purposes was, in terms of Schedule 7 to those Regulations, nil. Further she did not qualify for an urgent cases payment because she was not an asylum seeker as defined in regulation 70(3A)(a) of the General Regulations as that regulation had been amended by regulation 8(3)(c) of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 because she had not made her application for political asylum on her arrival in the United Kingdom.
5. Regulation 8(3)(c) of the 1996 Regulations was then declared by the Court of Appeal to be ultra vires of the regulation making powers conferred on the Secretary of State for Social Security by the Social Security Contributions and Benefits Act 1992. The adjudication officer therefore reviewed his decision and awarded Income Support under the urgent cases provisions from 31 May 1996. On 24 July 1996 the Asylum and Immigration Act 1996 came into force. Section 11(4) of that act as read with paragraph 2 of Schedule 1 enacted that regulation 8(3)(c) of the 1996 Regulations has effect as if those regulations had been made and had come into force on 24 July 1996. The adjudication officer then reviewed his awarding decision and decided on review that the claimant was not entitled to benefit from 24 July 1996.
6. Until the enactment of the Asylum and Immigration Appeals Act 1993 people who applied for political asylum in this country were subject to the same application and appeals procedures as were people who, for reasons other than asylum, were seeking permission to stay in this country or resisting orders for their ejection. The 1993 Act introduced a faster adjudication procedure for asylum seekers. Until February 1996 regulation 70(3A)(a) of the Income Support (General) regulations provided that a claimant for Income Support who came within the Regulations' definition of a person from abroad but who had applied for political asylum would have an applicable amount for the purposes of calculating entitlement to benefit of 90% of the applicable amount specified in the relevant schedule. No time limit for the making of the application for asylum was specified and entitlement continued throughout the application process and any subsequent appeals process.
7. In 1996 the Asylum and Immigration Bill was presented to Parliament. In January of that year the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 were made and laid before Parliament. Those Regulations amended, with effect from 5 February 1996, regulation 70 of the Income Support (General) Regulations by substituting for sub-paragraph (a) of paragraph (3A) a new sub-paragraph (a) which had the effect of altering the definition of an asylum seeker from simply a person who had submitted a claim for asylum to a person who had claimed asylum "on his arrival" in the United Kingdom. The new paragraph (3A)(a) is in the following terms:-

"(3A) 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;".

8. In his written Statement to the Social Security Advisory Committee in accordance with section 174(2) of the Social Security Administration Act 1992 the Secretary of State explained that the reason for the making of the 1996 Regulations was that because of less favourable treatment of asylum seekers in other European countries there had been a doubling of the number of applications for asylum in Great Britain. 70% of asylum claims were made by people who entered this country as tourists, students, business people or illegally and subsequently made a claim. Although the Government intended to continue to consider such asylum claims social security benefits would no longer be available to those who entered the country on a basis other than seeking asylum and subsequently made an asylum claim. Those who made their true intentions clear when they arrived in this country and sought asylum at the port of entry would continue to have access to benefits while their claims for asylum were being considered by the Home Office. Where an asylum application was refused and the applicant appealed benefit, contrary to the practice hitherto, would not be paid pending determination of the appeal. That would put asylum seekers on the same benefit footing as indigenous claimants for benefit who do not receive payment pending determinations of appeals against refusal of benefit.
9. The 1996  Regulations came into force on 5 February 1996. However, the validity of the regulation 8(3)(c) amendment to regulation 70(3A) of the General Regulations was challenged in the High Court and, on appeal from the decision of the High Court, the Court of Appeal, as I say above, decided that 8(3)(c) was ultra vires of the power conferred on the Secretary of State by section 135(1) of the Social Security Contributions and Benefits Act 1992 because, by excluding certain asylum seekers from entitlement to the sole means of subsistence available to them in this country, it had rendered nugatory the rights of appeal conferred on such asylum seekers by the Asylum and Immigration Act 1993. The 1992 Act did not confer on the Secretary of State the power to remove rights conferred by other primary legislation. The Court of Appeal decision is reported as R v. Secretary of State for Social Security, Ex Parte Joint Council for the Welfare of Immigrants, [1996] 4 All ER 385. The leading judgment is that of Simon Brown LJ. To restore the effect of the 1996 Regulations the Asylum and Immigration Bill was amended to include the provision enacted as the section 11(4) and Schedule 1, paragraph 2 to which I refer in paragraph 5 above.
10. During the passage of the Asylum and Immigration Bill in the House of Lords there was moved an amendment to extend the definition of an asylum seeker for the purposes of regulation 70 to include the person who had made an application for asylum "on arrival in this country or within three days of arrival". In resisting the amendment the Minister of State for Social Security made two statements which are recorded in Column 1351 of Hansard for 2 July 1996. These are:-

"If someone applies to a customs officer instead of the immigration officer, it could be proved and an adjudicator would be likely to accept that it was an application on arrival. I am clear that that would be the case relating to arrival."

and

"If people are so traumatised and if they have selected this country to come to; if they have decided that it is a safe country in which they will not be persecuted, I fail to understand, despite all the special pleading I have heard over many hours, why it is unreasonable to expect them to say at the moment of entry: 'I am being persecuted in my country of origin and seek asylum'. That seems to me a logical position.".

The amendment was carried.

11. When the Bill was returned to the House of Commons for consideration of the Lords amendments the Government successfully resisted the extension of the time within which a claim for asylum would have to be made to qualify the asylum seeker for entitlement to Income Support under the urgent payments provisions. In the course of the debate recorded in Columns 844 to 879 of the Hansard for 15 July 1996 the Secretary of State for Social Security made the following statements:-

"My first instinct when faced with authority in foreign countries - I have been faced by the Secret Police in Uganda - is to tell the truth. I am afraid of getting into trouble by telling lies. That is most people's instinct. One reason why some people tell other stories is that, when they enter the country, they genuinely are businessmen, students or tourists, and subsequently decided to become asylum seekers.",

"Several thousand people every year, and rising, come via an EU third country. That is why my Rt. Hon. and Learned Friend the Home Secretary has taken measures so that we can, as the Geneva Convention allows, return people straight to the safe country - France, Belgium, or somewhere - through which they came. The amendment would create a loophole so that, when it was advantageous for people to enter from those countries without declaring themselves, pretending to be EU citizens, and using a forged passport that they had only to waive at the passport official before destroying their documents and claiming that they came directly from their country of origin, we would have no option but to give them benefit.",

"The most telling point in the Archbishop's letter referred to the difficulties that might be experienced by asylum seekers who cannot speak English. However, there is a degree of flexibility, as was suggested by my Hon. Friend the Member for Eltham (Mr Bottomley). People who arrive at an airport or other port of entry with no interpretation facility are told to come back and complete the formalities in a few days' time. They are then treated as if they had just arrived and were making an in-port claim, although such a claim is made 2 or 3 days later. That flexibility will continue when the measure is in force.",

"The Hon. Lady misunderstands what happens at ports. We do not expect people to know about our benefit regulations or understand the minutia of bureaucratic detail, as has been suggested. They are simply asked why they are coming to Britain. If they are seeking asylum they are simply to say so. Surely it would be more difficult for people in the circumstances the Hon. Lady describes and for whom we all have immense sympathy to tell some concocted cock-and-bull story than to tell the truth, which is all we require of people arriving in Britain."-,

"On a second point about the problems of languages, Heathrow is well equipped with a vast array of interpretation facilities. However, other ports that cater for smaller numbers of people do not have facilities for every language. If someone arrives with an unusual linguistic requirement, such arrangements as I suggested might be necessary should apply.",

"The main reason why people claim in country rather than at the port of entry is that they are advised to do so by their relatives and friends, or in most cases their agents. Let us acknowledge that most people coming to this country as asylum seekers have agents. In almost every case mentioned in The Independent on Sunday report yesterday, the person concerned had an agent who had been paid to help them leave their own country and enter Britain. Agents give that advice because it is - or used to be - in the interest of asylum seekers to make a claim in-country rather than at the port of entry.

Although the same criteria and process of assessing an asylum claim apply whether it is made at port or in-country, different rules apply once the application has been turned down and the applicant has entered a normal appeal process if he is an in-country claimant, rather than in-port. In-country claimants whose claim to asylum status is rejected can invoke complex immigration law appeal rights against deportation that can drag on far longer than those available to port applicants. As my Rt. Hon. Learned Friend the Home Secretary has said, they do so, and many hope to prolong their stay indefinitely. It is wrong that we should enable them to do so by extending benefit and rewarding those who have failed to tell the truth simply to get the better immigration status by claiming in-country."

and, in response to the point that many asylum seekers are, on arrival in this country, suffering from the effects of torture, deprivation, injustice and threats to life and are in difficulty if required to make out at once a detailed case for asylum, -

"All we ask is that, when such people are asked why they have come to this country, they should say that it is to seek asylum, not something totally different. There is no question of their being required to give details then and there. Of course it is right to be considerate to them if they have suffered in the ways that some Hon. Members have rightly expressed concern about.".

12. The tribunal which heard the claimant's case found in fact that the circumstances of the claimant's arrival in this country and her application for political asylum were as I have narrated them in paragraph 3 above. The tribunal's reasons for its decision that regulation 30(3A)(a) was not satisfied was that although the statements made by ministers to Parliament indicated that a claimant who has attempted to apply for asylum in the port of arrival but has been prevented from doing so by the absence of any official who could deal with the application would be treated as still arriving some time later when the application is made, the claimant in this case had left the airport without making any attempt to apply for asylum and could not be said to have been still in the process of arrival some hours later when she visited the Home Office Immigration and Nationality Department at Croydon. The tribunal noted the circumstances of the claimant's health and the influence of the agent but did not regard them as having a bearing on the interpretation of "on arrival".
13. The claimant's grounds for appealing the tribunal's decision are that:-

(1) The tribunal had incorrectly interpreted regulation 70(3A)(a) of the Income Support (General) Regulations 1987 in that the words 'on his arrival' is not qualified by any such words as 'immediately' or 'on the date of' and there was no reference in the regulation to the port of entry of immigration control.

(2) The tribunal's decision was not in accordance with the flexible approach to the interpretation of 'on his arrival' indicated by ministers in Parliament, that there was no justification, evidence or case law (either in Social Security or Immigration Law) to support the restrictive interpretation of 'on arrival' as meaning before clearing immigration control expressed in the adjudication officer's guide, paragraph 36040, which was produced to the tribunal in evidence.

(3) That the lack of an interpreter was only one of the ways in which a person could be prevented from making an application for asylum at immigration control and the tribunal had not given adequate consideration to the claimant's state of health and state of fear or of the influence of the 'agent' assisting her.

(4) The common-sense meaning of 'on arrival' is that 'arrival' extends to the point at which the claimant has achieved the primary purpose of the journey, the making of the application for asylum, whether that be at immigration control or the Home Office in Croydon.

14. In response to those grounds of appeal the adjudication officer now concerned submitted that the tribunal had not wrongly interpreted regulation 70(3A)(a) as the claimant had not claimed asylum on arrival in the United Kingdom but had waited until after she was in the country before approaching the Immigration and Nationality Department of the Home Office. However, the adjudication officer took the technical point that the decision appealed to the tribunal was a decision made on review and the tribunal had not dealt with the question of review. On that account she requested me to set aside the tribunal's decision and make a decision of my own to the same effect. In a further submission made on the direction of a nominated officer in the Office of the Social Security Commissioners, the adjudication officer submitted that, in the light of the Court of Appeal decision 18 March 1997 in Regina v. Secretary of State for Social Security Ex Parte T and the decision of 10 July 1997 in the High Court (Mr Justice Dyson) in Regina v. Secretary of State for Social Security Ex Parte Vijeikis and Others, the saving provisions enacted in regulation 12(1) of the 1996 Regulations did not have the effect of preserving the claimant's right to Income Support from and after 27 July 1996. In answer to those submissions the claimant's representative maintained his argument that the tribunal had wrongly interpreted "on his arrival" but conceded "at this stage" that the Court of Appeal and High Court decisions were not directly relevant to the claimant's case. He argued also that the fact of the review process was clearly accounted for in the adjudication officer's submission to the tribunal and was common ground between the parties at the hearing. The tribunal's omission to record the fact of that process was not, therefore, an error which necessitated my setting aside of the tribunal's decision and he requested that I deal with the substantive point of the interpretation of "on arrival". I agree that there is no error on the tribunal's part in respect of the review question and that regulation 12(1) does not assist the claimant's case.
15. I heard the claimant's appeal on 2 February 1998. The claimant was represented by Mr Cox of counsel instructed by Mr Curtis, Principal Welfare Rights Officer of Islington Council's Neighbourhood Services Department, and the adjudication officer was represented by Miss Hartridge of the Office of the Solicitor to the Department of Social Security. At the same time I heard the appeal on file CIS/1137/1997 which involves the same point of interpretation. In that appeal the claimant was represented by Mr Michael Haran, Solicitor, of Chelsea Citizens Advice Bureau and the adjudication officer by Miss Hartridge. I am grateful to all three for their submissions. Neither appellant was present.
16. Mr Cox provided a skeleton argument which I have placed in the bundle as documents Nos. 114 to 122. Referring to that skeleton he argued that the new regulation 70(3A)(a) which resulted from the amendments enacted in Schedule 1 to the 1996 Act had the effect of removing fundamental rights of asylum seekers. Since the passing of the 1996 Act there was no question of the new regulation 70(3A)(a) being ultra vires. However, because it in effect denied a right of appeal to certain asylum seekers, it had to be construed as effecting the minimum derogation from the rights of those asylum seekers which the wording of the provision would bear. For authority for that proposition he relied on the decision in the Vijeikis case and Regina v. The Lord Chancellor Ex Parte Witham, [1997] 2 All ER 778. The restriction on existing rights, to be effective, must be a necessary implication of the enactment in question or must be expressly stated therein.
17. Mr Cox accepted that regulation 70(3A)(a) contained an express restriction but argued that the provision had to be construed so as to impose the minimum interference which was warranted by clear words in the provision. The provision in question contained no express words to the effect that an application for asylum must be made before clearing immigration control and did not expressly state that the application must be made immediately on arrival in this country. "On his arrival" can have different meanings when applied in different circumstances. For example, a man concealed in a lorry found by customs officers after the lorry has passed immigration control might claim asylum at the customs post but the adjudication officer would say that the 50 yards distance between the immigration control point and the customs post makes a significant difference. The construction which the adjudication officer seeks to put on "on his arrival" does not arise from any necessary implication in the provision. The draftsman has chosen not to use the more restrictive words available to him. Regulation 21(3) defines persons from abroad by using expressions all derived from immigration law. By construction the draftsman has adopted the meaning of the immigration legislation. 70(3A)(aa) refers back to easily ascertainable events in the course of the Secretary of State's procedures in relation to political asylum matters.
18. The normal inference from the draftsman's having chosen not to use an ascertainable event in immigration control procedures as a point of reference to which the intended restriction can be related is that some flexibility was intended. The difficulty arising from regarding clearance of immigration control as being the last point in the arrival process is to be seen by an examination of the amendments made to the 1971 Immigration Act to provide for the control of the entry of foreign nationals on the Channel Tunnel trains. He referred to an Immigration and Nationality Department letter of 25 March 1994 a copy of which was produced by Miss Hartridge (Document No. 136 in the papers) together with copies of the 1971 Act amended to provide for immigration control in the Channel Tunnel system. The effect of the modification of the Act is that British immigration control extends into the tunnel system and a train traveller who encounters the immigration officer on the train will have passed through immigration control before he has arrived in England.
19. Mr Cox submitted that given the varied circumstances in which asylum seekers will arrive in this country and the varied factors which will affect their ability to apply for asylum at any given point in the arrival process, the interpretation which should be put upon the words "on his arrival" is "as soon as reasonably practicable". Normally that will be on meeting an immigration officer but there will be occasions when it is not reasonably practicable to make an application at that point. That could be due to personal circumstances or the circumstances of arrival. For example, the claimant might be ill or under the influence of others or there might not be an immigration officer available. He argued that I should not follow the decision in CIS/143/97. That decision was made without the benefit of oral argument. In particular there was no argument put to the Commissioner about the presumption of human rights and the need for the abrogation of such rights in statute to be enacted expressly or by necessary implication in the legislative text. There was no validity in the Commissioner's reservations about the ability of the adjudicating authorities to make judgments as to what was "as soon as practicable" in any particular circumstances and about the risks of unfairness as between one claimant and another. The adjudicating authorities were well experienced in dealing with such considerations in relation to questions of good cause for the late claiming of benefit and in relation to questions as to whether claimants for benefit were living as husband and wife with other persons.
20. This was not, Mr Cox argued, a case in which it was permissible to refer to the Parliamentary papers in order to ascertain the meaning of the provision in question. He referred to Pepper (Inspector of Taxes) v. Hart [1993] AC 593. The expression in question must be "ambiguous, obscure or absurd" (page 634). To be ambiguous the words "on his arrival" must be capable of bearing either of two meanings. Given the restriction on interpretations of legislation which abrogate human rights there could be no ambiguity in this case. Therefore there could be no reference to the Parliamentary papers In any case, the Parliamentary material to which one would look is not itself clear. In the House of Lords the Minister of State had said that a claimant could satisfy the "on arrival" condition by making his application for asylum to a customs officer. That statement does not have the clarity demanded by the Pepper v. Hart rule because a claimant on his arrival in this country will not encounter a customs officer until he has passed through immigration control and a customs officer is not an officer acting in the name of the Secretary of State. The Minister of State's statement was not just an off the cuff remark. He made it several times.
21. In conclusion Mr Cox submitted that if I considered that the tribunal had applied the wrong statutory test I should remit the case for rehearing. If I did not think that the wrong test had been applied I should still remit for rehearing because the tribunal had made insufficient findings in fact to demonstrate that it had taken account of all of the factors relevant to the question of whether or not the claimant had made her application for asylum as soon as she practically could. The tribunal's findings in fact were limited to chronology. There was nothing about the claimant's state of health or as to whether she had any control over events. I could consider making my own findings in fact and decision. There was no oral evidence from the claimant before me but he had included in the bundle with his skeleton argument a medical report which explained the claimant's background and state of health. I have put that report into the appeal papers as documents Nos. 123 to 125.
22. Mr Haran referred to the Hansard record of the House of Lords debate on the proposed amendment to the 1996 Asylum Bill (Document 145 of the papers). He submitted that "on arrival" meant as soon as possible or something similar. There was no qualification by the inclusion of the word "immediately" or by a reference to the means of application. The only legal definition of the expression "on arrival" which he had been able to find was in charter party law which had no relevance to these appeals. He submitted that the 1971 Immigration Act as amended set up a coherent scheme to deal with the control of arrivals through the Channel Tunnel. If Parliament had intended to set up a scheme where there was a designated area in which claimants for Income Support must make their applications for asylum it could have done so. The Minister of State in the Lords had referred to the possibility of an application to a customs officer. Why merely a customs officer? Paragraph 6 of CIS/143/97 accepts that "on his arrival" can mean as soon as practicable. Paragraph 7 refers to the clear intention of the legislation to limit entitlement but any introduction of a time factor on the making of applications for asylum would have had the effect of imposing restrictions on entitlement given the previous lack of any time limit. The difficulty in dealing with the question of whether claimants for benefit had been ignorant of the immigration rules or the benefit rules is not relevant because the test of practicability is not restricted to considerations of the claimant's state of knowledge.
23. Miss Hartridge argued that the Commissioner's approach in CIS/143/97 was correct. He was correct to say that the intention of the legislation is the limitation of administrative difficulty. The provision is harsh but is clear. The fact that adjudication authorities deal with other questions of difficult judgment under other Social Security regulations is not relevant. The adjudication officer's position is that there is no ambiguity in regulation 70(3A)(a) but if there is recourse to the Parliamentary papers is appropriate. However, the appropriate paper is the Hansard record of the House of Commons debate on the Lords amendment, Columns 843 to 883 of Volume 281, (Documents Nos. 160 to 182). It is as a result of that debate that regulation 70(3A)(a) was amended to its present form. The Secretary of State's speech makes it clear that the provision was intended to restrict benefit to those who had made an application for asylum in the port of arrival. There was to be no benefit payable to those who did not reveal their true intention at that point. See in particular Column 850. The scheme for the control of the entry of foreign nationals to this country by way of the Channel Tunnel was not inconsistent with the Secretary of State's statement to the House of Commons. A Channel Tunnel train was a control zone and a passenger who had encountered an immigration officer on the train had entered Great Britain while on the train. There was, therefore, no question of him arriving in Britain after he had passed immigration control. She submitted that there was no error in law in the tribunal's decision. The evidence in the medical report produced today had not been before the tribunal and I could not make my own findings in fact unless the tribunal's decision fell to be set aside on account of error. If I did decide that the decision is erroneous her view was that I should remit the case to a new tribunal.
24. In my view for anyone coming to this country by plane or ship the process of arrival can take some time and will normally involve four identifiable stages. Those are disembarkation, passing through immigration control, passing through customs and leaving the port or airport. What is urged on me by Mr Cox and Mr Haran is that there is another stage in the case of asylum seekers. That is the stage at which there is the first practicable opportunity to make the application for asylum. That was not necessarily a fifth stage in numerical order. It could coincide with clearing immigration control but it could also be at some point after clearing immigration control or even after leaving the port or airport. When that stage is reached depends on the circumstances of the asylum seeker's arrival, including his health, state of knowledge and his language and the availability of people to deal with his application.
25. I have first to reject Mr Cox's argument that this is not a case in which it is permissible to look to the Parliamentary papers. I accept that the effect of the amendment to regulation 70(3A)(a) made by the 1996 Act is to curtail, in practice, the rights of appeal of those who wish to challenge decisions on their right to stay in this country and that, therefore, any interpretation of the amended provision must be such as to impose only such curtailment as is expressly sanctioned or necessarily implied in the words of the provision. However, the need for a restrictive approach to interpretation in any given case does not mean that the restrictive approach must be applied even if it will result in the frustration of the known purpose of the legislation. The purposive approach to interpretation is now accepted (see page 635 of the Pepper v. Hart report). Further, the expression "on his arrival" when used in relation to somebody entering this country through a seaport or airport or by way of the Channel Tunnel comes into the category of statutory provision to which Lord Brown-Wilkinson referred at page 634 of Pepper v. Hart where he said:-

"It is an inescapable fact that despite all the care taken in passing legislation, some statutory provisions when applied to the circumstances under consideration in any specific case are found to be ambiguous.".

In this case the provision concerned is not so much ambiguous, in the sense of having two possible meanings, as obscure in the sense that it is not possible to tell from the words of the provision as applied to an asylum seeker undergoing the multi-staged process of arriving in this country exactly which stage is the one at which a claim for asylum must be made to qualify the claimant for entitlement to Income Support.

26. That obscurity arises from the fact that although the draftsman is dealing with people who are subject to the controls on entry to this country provided for in the 1971, 1993 and 1996 Acts and although the mischief which the 1996 amendments to regulation 70(3A) is designed to cure is avoidance of the summary procedures of the 1993 Act by people claiming asylum after entry to this country, the draftsman has chosen not to specify entry to the United Kingdom as defined in section 11 of the 1971 Act as being the demarcation point between asylum claims which will qualify a claimant for benefit and those which will not. Section 11 provides that a person arriving in this country by ship or plane does not enter the country until he disembarks and having disembarked has not entered the country for as long as he remains in the control zone approved by an immigration officer where there is such a zone.
27. I am, therefore, able to consider the Parliamentary papers. As noted above there has been produced to me the Hansard record of the Minister of State's statement to the House of Lords and the Secretary of State's statements to the House of Commons. The Minister of State's statement would be a competent source of interpretation if it complied with the criterion enunciated by Lord Brown-Wilkinson at page 637 of the Pepper v. Hart report. That is if it were, or were part of -

"A consistent series of answers given by the Minister, after opportunities for taking advice from his officials, all of which point the same way and which were not withdrawn or varied prior to the enactment of the Bill.".

The Ministerial statements to the Lords do not come into that category. As Mr Cox pointed out, the Minister of State said that a claimant would be treated as having made an application for asylum if he was proved to have spoken to a customs officer. I agree with Mr Cox that that is confusing because a person arriving at a port of entry would not encounter a customs officer until he had passed through immigration control unless the customs officer had been appointed to act as an immigration officer by the Secretary of State and unless he has been so appointed a customs officer does not act in the name of Secretary of State.

28. However, in the House of Commons the Secretary of State made clear that the mischief which the amendment to regulation 70 was intended to cure was that explained in his statement to the Social Security Advisory Committee and which lay in the different procedures which applied to "in-port" applicants for asylum and "in-country" applicants. He was concerned that if the Lords amendment providing for three days grace from the date of arrival in this country were passed people who had entered the country without declaring themselves as asylum seekers would be able to go to the Immigration and Nationality Department some considerable time after their arrival and claim to have arrived within the previous three days. The Secretary of State's statements as to the point at which he expected asylum seekers to declare themselves are quoted in paragraph 11 above. At no point did he say that the application for asylum had to be made before clearing immigration control. What he did say repeatedly was that the application had to be made "in-port", "at the port of arrival" and "at the point at which they are asked why they have come to this country". My conclusion is, therefore, that the statements, of the Secretary of State indicate that the legislative intention is that the intention to make an application for asylum must be stated while the claimant is still within the port of arrival but not necessarily before clearing immigration control. That is consistent with the wording of the provision. Without some qualification "on his arrival" means during the process of arrival and I agree with the tribunal that that process finishes when the person arriving leaves the port of arrival. To interpret the provision as contemplating a process of arrival which in some but, depending on the circumstances, not all, cases goes beyond the point at which the claimant leaves the port of entry involves reading into the provision a meaning which its wording simply does not bear and which would be inconsistent with the intention of the promoters of the legislation.
29. Regulation 70(3A)(a) simply provides an objective condition - an in-port application for asylum - which must be satisfied if the claimant is to qualify for Income Support. The claimant either satisfies the condition or he does not. There is nothing in the wording of the provision which imports any consideration analogous to those of good cause or explicable inaction which are contemplated in other parts of the Social Security legislation, most notably the Claims and Payments Regulations. If, for whatever reason, before leaving the port of entry the claimant has not been able to indicate that he seeks asylum he cannot satisfy the regulation 70(3A)(a) condition for entitlement to Income Support. The onus of proving that he has given that indication to someone acting in the name of the Secretary of State is on the claimant as part of the onus of establishing entitlement to benefit which rests on all claimants.
30. My interpretation of the regulation will, I realise, bear harshly on some claimants. However, it is quite clear from the statement made to the Social Security Advisory Council and from the statements made to Parliament by ministers that regulation 70(3A)(a) is part of a legislative scheme designed to ensure that only those asylum seekers who have indicated their need for asylum before leaving their port of entry will be entitled to benefit and that those people who enter the country at points where there is nobody to entertain an application for asylum or who, although they have entered the country at a port designated as a port of entry for the purposes of the 1971 Immigration Act, leave that port without, for whatever reason, having ensured that their requirement for asylum has been noted by the appropriate official will be excluded from entitlement to benefit.
31. For the foregoing reasons the claimant's appeal fails and my decision is in paragraph 1 above.

(Signed) R J C Angus

Commissioner

(Date) 18 March 1998