UKSSCSC CIS_4117_1997 (11 June 1998)
Mr. M. Rowland CIS/4117/1997
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  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
"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.
"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.
"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.
"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."
"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."
Date: 11 June 1998 (signed) Mr. M. Rowland