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[1998] UKSSCSC CIS_4117_1997 (11 June 1998)

R(IS) 14/99

Mr. M. Rowland CIS/4117/1997
11.6.98

Person from abroad - urgent cases – asylum seeker – whether asylum claimed "on …. arrival"

The claimant arrived in the United Kingdom on Friday, 2 February 1996 and passed through immigration control before leaving the airport. She claimed asylum at Lunar House on Monday, 5 February 1996. On 6 February 1996, she claimed income support. Her claim was disallowed by the adjudication officer on the ground that she had not claimed asylum on her arrival and so she was not an asylum seeker for the purposes of regulation 70(3A)(a) of the Income Support (General) Regulations 1987 as amended by regulation 8 of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996. A tribunal dismissed her appeal without making any findings as to why she had not claimed asylum until 5 February. She appealed to the Commissioner.

Held, dismissing the appeal, that:

the claimant was not entitled to transitional protection under regulation 12 of the 1996 Regulations: Regina v. Secretary of State for Social Security, ex parte T [1997] COD 487 (paragraph 6);

the term "on his arrival" was used deliberately, instead of any more precise term, in order to maintain a level of flexibility (paragraph 13), the extent of which was to be considered on a case by case basis (paragraph 21);

it was not a universal test that asylum should have been claimed before "clearing immigration control" (paragraph 20);

it was clear that Parliament intended that the words "on his arrival" should be so construed that a person who had arrived at Heathrow airport and claimed asylum at Lunar House three days after clearing immigration control and leaving the airport had not claimed asylum "on …. arrival" (paragraph 23);

the tribunal had rightly regarded the claimant's evidence as to why she did not claim asylum at the airport as irrelevant (paragraph 23).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

This is an appeal, brought by the claimant with the leave of the tribunal chairman, against a decision of the Sutton social security appeal tribunal dated 14 May 1997, whereby they held that the claimant was not entitled to income support because she was a "person from abroad" who did not satisfy the conditions for an award of urgent cases payments. At the hearing before me, the claimant was represented by Mr. Duran Seddon of counsel, instructed by Messrs. Pierce Glynn, solicitors of London SE1, and the adjudication officer was represented by Ms. Julia Hartridge of the Office of the Solicitor to the Departments of Social Security and Health. I am grateful to both advocates for their helpful submissions.

The claimant is an Ethiopian national. She was aged 18 when, on Friday, 2 February 1996, she arrived at Heathrow airport on a flight from Sudan and passed through immigration control before leaving the airport. On Monday, 5 February 1996, she applied for political asylum at Lunar House in Croydon and, on Tuesday, 6 February 1996, she claimed income support. These facts have never been in dispute.

Nor has it ever been suggested that the claimant might be entitled to income support at the usual rate. That is because she is clearly a "person from abroad" within the terms of regulation 21 of the Income Support (General) Regulations 1987. The issue has always been whether she is entitled to urgent cases payments. By regulation 70(2)(a) and (3)(b) of the 1987 Regulations, a "person from abroad" is entitled to urgent cases payments if he or she is "an asylum seeker for the purposes of paragraph (3A)". Until 5 February 1996, regulation 70(3A)(a) provided:-

"For the purposes of this paragraph, a person –

(a) becomes an asylum seeker when he has submitted 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; and

(b) ceases to be an asylum seeker when his claim is recorded by the Secretary of State as having been finally determined or abandoned."

Therefore, until the regulation was amended, there is no doubt that the present claimant was entitled to urgent cases payments on her claim for income support.

However, on 5 February 1996, on the very day on which she claimed asylum, there came into force the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996, regulation 8(3)(c) of which purported to substitute for regulation 70(3A)(a) of the 1987 Regulations the following provisions:-

"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) to the United Kingdom from a country outside the Common Travel Area a claim for asylum to the Secretary of State that 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

(aa) becomes, while present in Great Britain, an asylum seeker when –

(i) the Secretary of State makes a declaration to the effect that the country of which he is a national is subject to such a fundamental change of circumstances that he would not normally order the return of a person to that country, and

(ii) he submits, within a period of three months from the day that declaration was made, a claim for asylum to the Secretary of State under the Convention relating to the Status of Refugees, and

(iii) his claim for asylum under that Convention is recorded by the Secretary of State as having been made; ....."

On 9 February 1996, an adjudication officer decided that the claimant was not entitled to income support in the light of the amended definition on the ground that she had not claimed asylum "on [her] arrival" as required by the new regulation 70(3A)(a). A further claim made on 8 March 1996 resulted in a similar decision being made on 13 March 1996.

On 21 June 1996, the Court of Appeal held the 1996 Regulations to be ultra vires insofar as they amended the 1987 Regulations so as to deny income support to any person who had submitted a claim for asylum to the Secretary of State whose claim had not been finally determined (Regina v. Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275). In the light of that decision, an adjudication officer reviewed the earlier decisions of the adjudication officers and arrears of benefit were paid to the claimant. It is not recorded in the papers before me what consideration, if any, was given to section 69 of the Social Security Administration Act 1992. In any event, the relief was short-lived because, on 24 July 1996, the Asylum and Immigration Act 1996 received the Royal Assent. Paragraph 2(b) of Schedule 1 to the Act provides that regulation 8(3)(c) of the 1996 Regulations (which amended regulation 70 of the 1987 regulations) "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". On 10 August 1996, an adjudication officer reviewed the award of income support on the ground that the coming into force of the Act was a relevant change of circumstances. He or she decided that the claimant was not entitled to income support from 24 July 1996 and revised the award accordingly. There was, of course, no question of any overpayment being recoverable. By letter from her solicitors dated 30 August 1996, the claimant applied for a review of the decision of 10 August 1996 but, not being prepared to review it, the adjudication officer very properly treated the letter as notice of appeal to the tribunal

The first ground of appeal was that the claimant was entitled to transitional protection under regulation 12 of the 1996 regulations but, in the light of the Court of Appeal's decision in Regina v. Secretary of State for Social Security, ex parte T (18 March 1997), that is clearly not so and I need not consider the point further.

The second ground of appeal was that, notwithstanding that it was not made until the Monday after the claimant's arrival on the Friday, the claim for asylum was made "on [her] arrival". This ground was elaborated upon in two written submissions before the tribunal and also orally at the hearing. It was submitted to the tribunal that the phrase "on his arrival" was to be considered flexibly and references were made to statements of ministers made to that effect while amendments to the Asylum and Immigration Bill were being considered following the Court of Appeal's decision in ex parte Joint Council for the Welfare of Immigrants. Evidence was given to the tribunal to the effect that the claimant spoke no English, that she was brought to the United Kingdom by an agent who had her passport and who spoke on her behalf to the immigration authorities in English, that she was not involved in those discussions, that she always intended to apply for asylum, that she did not know that she could or should claim asylum at the airport, that the agent said he would take her to the Home Office but that she was dropped at Stockwell underground station and that she applied for asylum on the first working day after her arrival. On that basis, it was submitted that she had applied for asylum as soon as she could and she should be treated as having done so "on [her] arrival".

The tribunal did not make any findings in relation to the claimant's evidence. They clearly took the view that it was unnecessary to do so because the mere fact that the claimant entered the United Kingdom on 2 February 1996 and did not apply for political asylum until 5 February 1996 was sufficient to show that she did not claim asylum "on [her] arrival". She now appeals on the ground that that approach was erroneous in law. A further ground, arguing that there was a breach of the rules of natural justice in the proceedings before the tribunal, which is now academic, was not pursued before me.

Two slightly different approaches to the phrase "on his arrival" have been taken by Commissioners. In CIS/143/1997, in a case that was indistinguishable from the present one, I said:-

"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."

I did not have the advantage of any argument on behalf of the claimant in that case. Mr. Seddon commented that "clearing immigration control" is not a term used in legislation but I think it has a fairly well understood meaning, implying that any examination by an immigration officer has been completed, that enables it to be applied without difficulty to all but the most exceptional cases.

In CIS/2719/1997, the claimant was represented by counsel. The Commissioner was referred to CIS/143/1997 and to ministerial statements made while the Immigration and Asylum Bill was passing through Parliament. He said, at paragraph 28:-

"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 the process finishes when the person arriving leaves the port of arrival."

In the present appeal, Mr. Seddon submitted that both CIS/143/1997 and CIS/2719/1997 were wrongly decided. He argued that it was clear that the phrase "on his arrival" was used to preserve an element of flexibility mentioned by ministers in the proceedings in Parliament. If Parliament had intended that in all cases asylum had to be claimed while the claimant was being, or could be, examined by immigration officers, he submitted that the Act or the Regulations would have said so in terms that were clearly related to the terms of the Immigration Act 1971. Equally, the Act or Regulations would have said in clear terms that asylum had to be claimed before leaving the port of entry if that was to be the test in all cases. He also pointed to a number of circumstances - people arriving in sealed containers, people arriving on deserted beaches, people arriving through the Channel Tunnel - in which difficulties might arise whichever of the two tests were applied. In the light of those considerations, he submitted that a person was to be regarded as having claimed asylum "on his arrival" if he or she claimed asylum as soon as reasonably practical and that the tribunal in the present case erred in not considering whether it was impractical for the claimant to claim asylum when she was prevented from doing so by the actions of her agent and her lack of English.

Ms. Hartridge submitted that CIS/143/1997 was rightly decided and that, in so far as there was a conflict, CIS/2719/1997 was wrongly decided. However, she conceded that it was not necessary for her to go as far as asserting that CIS/2719/1997 was wrongly decided because, in the present case, the claimant had, three days before claiming asylum, both cleared immigration control and left the port of entry. Ms. Hartridge, too, invited me to consider ministerial statements made in Parliament.

In my view, Mr. Seddon is undoubtedly right when he submits that the relatively vague term "on his arrival" was used deliberately instead of any more precise term, in order to maintain a level of flexibility. As he suggests, more precise terms could easily have been used and I reach this view without recourse to what was said in Parliament although ministers there expressly referred to an intention to allow a measure of flexibility which, if necessary, confirms my view.

However, accepting that first part of his argument, seems to me to militate against accepting the second part which suggests a universal test of practicality. If Parliament had intended that a claimant should be entitled to claim benefits if he or she had claimed asylum as soon as practical, presumably they would have said so rather than using the, at first sight, more restrictive term "on his arrival". That is not to say that the fact that a claimant has acted as soon as practical will not often be a relevant consideration when deciding whether a claim has been made "on ... arrival", but that then raises the question as to what factors are to be taken into account in considering what is practical. In the present case, it was clearly practical for the claimant to claim asylum at Heathrow in the sense that there were both immigration officers and, presumably, interpreters present. Are the actions of her agent and the advice given by her agent to be taken into account in determining what was practical for her? That takes one back to the fundamental question: what did Parliament intend when imposing a requirement that a claim for asylum should have been made "on arrival" if the claimant was subsequently to be entitled to income support ?

Mr. Seddon referred me to a number of difficulties facing genuine asylum seekers. It is, he submitted, important to bear in mind that it is in the nature of an application for political asylum that it must be made after arrival because it is only then that Article 33 of the 1951 Geneva Convention relating to the Status of Refugees applies to prohibit a contracting state from expelling or returning a refugee to the frontiers of territories where his or her life or freedom would be threatened. If the country from which a claimant comes restricts the circumstances in which its citizens may leave or is such that he or she would require a visa or entry clearance certificate in order to be admitted to the United Kingdom, the only practical way of getting to the United Kingdom may be by using false documents or being concealed during the journey. Furthermore, an asylum seeker may, at the time of arrival, be traumatised by his or her experiences. In the light of those considerations, he submitted that it was understandable that some genuine refugees should not claim asylum at a port of entry but wait until they are more obviously safely inside the country, especially if they do not appreciate that there is any disadvantage in doing so (and, of course, there was no such disadvantage as the law stood on 2 February 1996). There is force in that submission and I would add that it seems to me to be understandable that an asylum seeker should enlist the help of an agent and that an agent who has assisted a person to arrive in the United Kingdom with false documents or by concealment should wish to disappear before the would-be asylum seeker discloses that fact. These realities are to some extent recognised by Article 31 of the Convention which forbids the imposition of "penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in [a] territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence". However, the Article raises a number of questions. It is certainly arguable that the refusal of any income support for an asylum seeker is not a proportionate response to the asylum seeker's failure to claim asylum at the port of entry so that it may be regarded as being in the nature of a penalty but, on the other hand, it may be arguable that a person has not presented himself or herself "without delay" to the authorities if, having arrived at a recognised port of entry, he or she did not claim asylum there (there being a distinction between arrival and entry in domestic law in that context - see Regina v. Naillie [1993] AC 674 - but possibly not for the purposes of Article 31) and it is also unclear what would amount to "good cause" for illegal entry. Furthermore, the scope of Article 31 is restricted to those "coming directly from a [relevant] territory". Nevertheless, the points raised by Mr. Seddon are potentially important considerations because, where there is some ambiguity, legislation should generally be construed so that it will work in practice and, other things being equal, legislation should also be construed so as not to be inconsistent with the United Kingdom's international obligations.

In the light of those considerations, Mr. Seddon submitted that a claimant should be treated as claiming asylum "on his arrival" if he did so as soon as practical after arrival and that the information available to the claimant as to how to make the claim was a relevant consideration. That, of course, would mean that, in some cases, a claim for asylum could be held to be made "on ... arrival" even though it was made some very considerable period after the actual date of arrival. Mr. Seddon suggested that the reference to the period of three months in the new regulation 70(3A)(aa)(ii) gave an indication of the degree of flexibility intended where regulation 70(3A)(a) applies. I do not agree. Regulation 70(3A)(aa) is concerned with a wholly different situation. Furthermore, it seems to me to be very unlikely that, if it had been intended that the degree of indulgence under regulation 70(3A)(a) should be of a similar order to that under regulation 70(3A)(aa), a similar clear time-limit would not have been imposed. Indeed, the difficulty of fairly distinguishing between those who had the knowledge of how to claim asylum and those who did not suggests to me that it is unlikely that Parliament would have made that a determining factor although I accept that such difficult issues do arise elsewhere in social security law. In any event, stretching the phrase "on his arrival" to a date three months after the arrival seems to me to go well beyond the natural meaning of the phrase. It is not really necessary for Mr. Seddon to go that far although that it is where his construction of the phrase naturally leads unless some limit is implied. His case need be no more than that "on his arrival" can stretch from Friday to Monday.

I am not sure that I would accept that submission even without looking at the proceedings in Parliament. However, the overriding duty of any judge or tribunal considering the meaning of legislation is to give effect to the intention of Parliament and, for the purpose of determining what Parliament intended in a case where there is otherwise doubt, the judge or tribunal may look at the records of proceedings in Parliament (Pepper v. Hart [1993] AC 593). Like the Commissioner deciding CIS/2719/1997, I am prepared to accept that this is a case in which it is appropriate to look at the statements of ministers in Parliament as an aid to the construction of the legislation. I am, of course, construing the Regulations, rather than the Act, but regulation 8(3)(c) of the 1996 Regulations was only properly given effect by the Act and so it must be construed consistently with the intention lying behind paragraph 2(b) of Schedule 1 to the Act. The proceedings show that Parliament was made well aware of the practical difficulties facing asylum seekers to which Mr. Seddon has referred. Despite that, the House of Commons reversed an Opposition amendment to the bill passed by the House of Lords that would have restricted the power to make regulations excluding entitlement to income support to those who had "made a claim for asylum other than on his arrival in the United Kingdom or within three working days of that arrival".

I need refer to only a few of the ministerial statements. In the House of Lords, where the Government was defeated, Lord Mackay of Ardbrecknish, a Minister of State in the Department of Social Security who led for the Government in the relevant debate, said in reply to an example raised by Earl Russell (HL Vol. 573, col. 1351):

"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."

In the House of Commons, where the defeat was reversed, Mr. Peter Lilley MP, the Secretary of State for Social Security, said (HC Vol. 281, col. 846):-

"Of course people must have access to an interpreter so that they can deal with the immigration authorities. There are interpreting facilities in scores of languages to cope with people arriving from various countries. "The most telling point in the archbishop's letter refers 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 have just arrived and were making an in-port claim although such a claim is made two or three days later. That flexibility will continue when the measure is in force."

Later, he said (ibid.):-

"We do not expect people to know about our benefit regulations or understand the minutiae of bureaucratic detail, as has been suggested. They are simply asked why they are coming to Britain. If they are seeking asylum, they simply have 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."

Later still, he said (ibid. col. 848):-

"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. ... Agents give that advice because it is - or used to be - in the interests 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 the 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 right hon. and 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 a better immigration status by claiming in country."

The background against which the House of Lords' amendment was reversed was the repeated statement by the Secretary of State for Social Security (echoing what had been said by the Minister of State in the House of Lords) that only those who claimed asylum at the port of entry would be entitled to benefits if the Government amendment were accepted. In those circumstances, it is clear that Parliament intended that, in the ordinary case of a person arriving at a recognised port of entry with full immigration control and interpretation facilities, that person's entitlement to social security benefits should depend upon him or her making an application for asylum at that port. The degree of flexibility in the legislation, inherent in the use of the vague words "on his arrival", must be measured in that light. The first of the statements of the Secretary of State that I have cited shows a clear willingness to take account of matters wholly beyond the claimant's control that might make an immediate claim for asylum impossible. However, the last of the statements I have cited, and - more importantly - the very reversal of the House of Lords' amendment, show an unwillingness to take account, in considering what is practical for a claimant, of wrong - or even reasonable - advice received from an agent in whose hands the claimant has put his or her affairs if that advice leads to the claimant claiming asylum otherwise than at the port of entry.

If, as I accept, the words "on his arrival" were used because they may be applied flexibly, it seems wrong to try and find another simple formula which may be applied in all cases. Otherwise the purpose of having the flexibility is liable to be defeated. I would therefore accept that "clearing immigration control" is not a universal test applicable in all cases. It seems to me that one reason for the use of the vague words "on his arrival" is that there are cases - not considered in Parliament - where the method of arrival is unconventional or is not through an ordinary port of entry. A case of a person who was willingly smuggled into the country in a drugged state in a sealed container has already been considered by a Commissioner (CIS/3231/1997) and the cases of Mr. Seddon's hypothetical claimants arriving on a deserted beach or through the Channel Tunnel (which is the subject of special legislation) must be considered when they arise. However, it seems to me that a second reason for the use of the non-technical term "on his arrival" was a willingness to allow adjudication authorities some limited degree of flexibility to enable them to take account of unusual circumstances arising at a port of entry.

The extent of that flexibility must, I think, be considered on a case-by-case basis. Clearly, the flexibility is limited but consideration of how limited it is raises difficult questions. Both Mr. Seddon and Ms. Hartridge expressed the view that there is a limit to the extent that one can properly refer to ministerial statements to determine such questions of detail. As the Commissioner pointed out in paragraph 27 of CIS/2719/1997, Lord Mackay's example ignores any difficulty there might be arising from the fact that a customs officer does not represent the Secretary of State but, leaving that difficulty on one side, his example suggests that a person may claim asylum "on his arrival" when the claim is made after the claimant has been examined by an immigration officer and granted leave to enter the United Kingdom but before he or she leaves the port of entry, whereas Mr. Lilley's example suggests that a claim may be made "on his arrival" after temporarily leaving the port of entry but before examination by an immigration officer is complete. Ms. Hartridge submitted that Lord Mackay's example was inconsistent with Mr. Lilley's and should be ignored. The Commissioner in CIS/2719/1997 considered that Lord Mackay's example might not be one of "a consistent series of answers given by the minister, after opportunities for taking advice from his officials, all of which point to the same way and which were not withdrawn or varied prior to the enactment of the bill" (per Lord Browne-Wilkinson at page 637 of Pepper v. Hart). It may not have been discussed with officials but it was neither withdrawn by himself nor disavowed by Mr. Lilley. However, Lord Mackay's example is clearly different from Mr. Lilley's and may be inconsistent with the general tenor of Mr. Lilley's statements. There are arguments on the both sides. On the one hand, it does seem to me to be arguable that Mr. Lilley's comments that a person must make the claim at the port of entry must be read with his comments that it is expected that such a person will not tell lies in order to gain entry which in turn implies that it was intended that the request for asylum is to be made while being examined by the immigration officer under paragraph 2 of Schedule 2 to the Immigration Act 1971 or, if there is no such examination, before the claimant is allowed to pass beyond immigration control on the basis that leave to enter is not required or has already been granted. Lord Mackay's example would be inconsistent with that approach. On the other hand, it has not been provided that making a false representation for the purpose of obtaining leave to enter prevents a person from obtaining benefit provided the claim for asylum (ie, the "true" reason) is given before it is too late and there exists in paragraph 6(2) of that Schedule a provision allowing an immigration officer to cancel a notice giving leave to enter within twenty-four hours of the conclusion of an examination under paragraph 2, which may leave open the possibility of a person returning to an immigration officer at the port of entry and making a claim for asylum that may properly be treated as made "on his arrival" even though he or she had originally passed beyond immigration control.

However, it is not necessary, for the purposes of the present case, for me to decide whether asylum must be claimed before the claimant first clears immigration control or whether it must be claimed before the claimant leaves the port of entry, or whether neither of those events is necessarily determinative. I therefore do not accept Ms. Hartridge's invitation to choose between the approach I took in CIS/143/1997 and the approach taken in CIS/2719/1997. Indeed, in neither of those cases would it have made any difference which of those tests was applied. I imagine that there are very few cases where it would make any difference. CIS/1137/1997, determined by the Commissioner at the same time as CIS/2719/1997, was one such case but there the tribunal had not made sufficient findings of fact to enable the Commissioner to know what exactly had happened between the claimant being granted leave to enter and his leaving the airport and the case was remitted to another tribunal for them to make appropriate findings and then determine the case in the light of them. The present case is not one where the claimant made any attempt to claim asylum at the airport. I do not have to decide where the line is drawn between claims for asylum made "on ... arrival" and those not made "on ... arrival" any more precisely than is necessary for the purpose of deciding on which side of the line the present case falls.

This is an ordinary case of the type discussed in Parliament. The claimant had both cleared immigration control and had left the airport three days before she claimed asylum. If her evidence is accepted, she put herself in the hands of an agent who got her to the United Kingdom and through immigration control without claiming asylum, probably making false representations to do so. It may be understandable that she did so and she may justifiably have thought that there was no need to claim asylum at the airport but, in my view, it is quite clear that Parliament intended that the words "on his arrival" should be so construed that a person who has arrived at Heathrow airport and who claims asylum at Lunar House only three days after clearing immigration control and having left the airport, has not claimed asylum "on arrival" and so is not entitled to income support. The tribunal were right to take the view that the claimant's evidence as to why she did not claim asylum at the airport was irrelevant.

Accordingly, I dismiss the claimant's appeal.

Date: 11 June 1998 (signed) Mr. M. Rowland
Commissioner