RAS/CW/ZA/14

				Commissioner’s File:	CIS/3231/1997

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.	This is an appeal by the adjudication officer against the decision of the Swansea social security appeal tribunal given on 14 April 1997.  The tribunal decided that the claimant was not an “asylum seeker” for the purposes of regulation 70(3A)(a) of the Income Support (General) Regulations 1987 because, in their view, he had “submit[ted] on his arrival...a claim for asylum to the Secretary of State...” as those words appear in that provision.  The consequence of that decision is that the claimant would have been entitled to urgent cases payments under regulation 70.  Payment of benefit has however been suspended pending the outcome of this appeal.

2.	The issue in this case is whether the claimant, in the circumstances to which I will refer, made a claim for asylum on his arrival.

3.	The claimant escaped from Iraq in late 1995.  His method was to employ agents to smuggle him out of Iraq and bring him overland to England to meet up with his brother who lived in Wales.  I was told at the hearing of this appeal, by Miss Pettifer for the claimant, that it was part of the scheme that, for agent’s protection, the claimant should not know who they were or by whom he was being transported to his destination.  So, as the evidence before the tribunal showed, he was hidden in the back of a lorry and drugged and sedated throughout the journey.  He apparently did not know and to this day does not know where the lorry entered the United Kingdom.  All he knows is that he was put out of the lorry in the Edgware Road in London and given enough money to telephone his brother.  That, as the tribunal found, was on the afternoon or evening of Sunday 5 November 1995.  He was then said to be in a very confused state; he did not know where he was and had little or no knowledge of English.  However he did manage to telephone his brother in Neath and, as I understand it, waited for his brother to come and collect him.  That night they drove to the brother’s home in Wales and, on the following day, went, as the tribunal said, to the Immigration Office in Cardiff “to declare Mr Kily’s presence”.  They were then told to report to the Immigration Office in Swansea.  The next day, Tuesday, they visited the Alien’s Office at a police station believing that to be the Immigration Office.  A police officer then made an appointment for them to be interviewed at 10 a.m. on Thursday 9 November by a Swansea Immigration Officer.  At that interview the claimant asked for asylum.

4.	Whether, in those circumstances, the claimant could be said to have claimed asylum on his arrival is crucial to whether, while awaiting the final outcome of his asylum application, he could be entitled to income support.  Of course he could not be so entitled until he made a claim for benefit.  He first did that in June 1996 but that claim is said to have been withdrawn.  He made a further claim on 17 October 1996 and on 5 November 1996 an adjudication officer is recorded as having decided that “Mr Kily is not entitled to income support.  This is because he is a person from abroad.  Neither is he entitled to urgent case payments because he does not satisfy the criteria for such a payment”,  The “criteria” referred to in that last sentence are, so far as relevant to this appeal, the criteria provided by regulation 70(3A)(a) which I now set out in full as follows:-

	“(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;”

A person who is an asylum seeker for the purposes of that provision would be entitled to benefit by virtue of regulation 70(3)(b).  Sub-paragraph (3A)(aa) provides an alternative method of qualifying for benefit but that depends on a declaration by the Secretary of State as to the circumstances in the claimant’s country of origin and I am told that no declaration has been made.  Some may think that odd given the present state of affairs in Iraq.

5.	I should just mention that the claimant was granted, presumably by the Immigration Officer in Swansea, temporary admission to the United Kingdom pending the outcome of his asylum application.  That was in November 1995.  The application has, Miss Pettifer told me, still not been brought to a conclusion.  In the meantime the claimant has been debarred from any entitlement to state benefits.  As I understand it, his wife and children are still in Iraq.

6.	The history of regulation 70(3A) is well known there having been widespread public comment and criticism.  It is enough for me to say that the provision in its first manifestation came into force on 5 February 1996.  In R v. Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants [1996] 4 All ER385 the provision was struck down as ultra vires by the Court of Appeal, Simon Brown L.J. remarking that (401) -

	“And yet these regulations for some genuine asylum seekers at least, must now be regarded as rendering these rights [to benefit payments] nugatory.  Either that, or the 1996 regulations necessarily contemplate for some a life so destitute that, to my mind, no civilised nation can tolerate it.” 

Nevertheless, regulation 70(3A) was tolerated and re-enacted, in identical form, pursuant to an amendment to the Asylum and Immigration Act 1996 and has effect from 24 July 1996, a Lords amendment allowing 3 days grace to claim asylum having been overturned in the Commons.  

7.	What then does “on his arrival” mean?.  It is to be noted that, under regulation 70(3A)(a), the claim for asylum has to be submitted to the Secretary of State and has to have been recorded.  That no doubt explains why it has never been suggested that “on his arrival” means the moment the foot touches British soil.  It further explains why, at least in appropriate cases, the provision is accepted as being satisfied when the claim is made during the course of clearing Immigration Control at the port of entry; see CIS/143/97.  That is no doubt the first occasion, in ordinary circumstances, that the Secretary of State is encountered.  But there will be some cases, and this is one, where, at the port of entry Immigration Control is bypassed; the entry into the United Kingdom is illegal.  Is a person who has gained illegal entry by being smuggled in or by otherwise landing unofficially to be in a better position than a person who goes through the normal procedures.  I think not.

8.	Miss Pettifer stressed that the claimant did not, because of his drugged state, even know that he had arrived; his first knowledge that he was in the United Kingdom was when he was deposited in the Edgware Road.  She also stressed that, at that time, there was no requirement, in respect of urgent cases entitlement, to claim asylum on arrival.  She said that, had there then been such a requirement, the claimant would no doubt have been deposited at the port of entry.

9.	I accept the submission of Miss Hartridge for the adjudication officer that the fact that the claimant arrived before the provision in question had effect is irrelevant; whether or not the claimant satisfied the provision has to be determined as at the date of the claim for income support.  There are transitional provisions to protect those who were asylum seekers under the old rules: see regulation 12 of the Social Security (Person from Abroad) Miscellaneous Amendments Regulations 1996.  But they do not help the claimant in this case because, so far as relevant, he was not entitled to benefit as at the date the provisions in question had effect.  And I would take the view that the presence of a savings provision, though of limited protection, shows that it was not intended to protect, on some other ground, those who arrived before the relevant date.

10.	I accept that in the case of a person arriving in the normal way the test is whether asylum was claimed at Immigration Control.  I would also accept that if, for some reason, Immigration Control was not available for example because of a strike or perhaps even because there was no one with the requisite language, the provision would be complied with if the claim is made at the first opportunity.  But I do not accept that where a person is smuggled into the country and makes his claim at the Immigration Office a day or so later he can be said to have done so “on his arrival”.  That seems to me to be the very sort of “mischief” at which the new draconian provision was directed.

11.	The tribunal said that “on his arrival” meant “as soon as reasonably practical after entry to the United Kingdom”.  Their reason for taking that view was that they could not accept that the provision could have been intended to have the dire consequences contended for by the authority.  However, Parliament has, as the history of the legislation shows, made it clear that such consequences were indeed intended.  The meaning given to the provision by the tribunal is in my view wrong.  I must therefore allow this appeal and set aside the tribunal’s decision.  The facts in this case are clearly established.  I see no reason to remit the case to another tribunal for rehearing.  My decision, in substitution for that of the tribunal, is that, for the purposes of his claim to income support (urgent case payments) the claimant is not an “asylum seeker” within the meaning of regulation 70(3A)(a) of the 1987 Regulations.

					(Signed)	R A Sanders
							Commissioner

					(Date)	12 March 1998