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
"(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;".
"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."
"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.
"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.".
(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.
"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.
"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.
(Signed) R J C Angus
(Date) 18 March 1998