UK Social Security and Child Support Commissioners' Decisions

[2000] UKSSCSC CIS_3418_1998 (07 June 2000)

 


THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CIS/3418/98

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

SOCIAL SECURITY ACT 1998

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

Commissioner: C Fellner

CIS/3418/98

1. This appeal, brought by an adjudication officer, with leave of a Commissioner, succeeds. The social security appeal tribunal's decision allowing an appeal against termination of the income support award to the respondent ("the claimant") as from 19 4 96 was erroneous in law, as explained below, and I set it aside. At the request of the claimant's advisers I held an oral hearing, at which Miss Vicky Bergmann of the DSS Solicitor's Office represented the Department and Mr Simon Cox of counsel the claimant. I am most grateful to both of them for their submissions, written and oral. Having heard full argument, I give the decision the tribunal should have given on the facts it found. This is that the claimant ceased to be entitled to income support as an asylum seeker from and including 24 7 96.
2. The claimant's name appears to be, or before her marriage to have been, Miss Beugre Gaye; but she has been transformed in this office into Miss Gaye Beugre, and has been so termed in the submissions of both parties, so that is what I am calling her.

The factual background to this appeal

3. The claimant arrived in the UK from the Ivory Coast on 14 1 94 and was given 6 months leave to enter as a visitor. She claimed asylum on 7 2 94 and was awarded income support from 15 2 94. Her asylum application was refused by the Home Secretary on 10 5 95, by which time her limited leave to enter had expired. She appealed on 19 5 95, and her appeal was heard by a special adjudicator on 28 3 96. On that day, as it turned out, she was in hospital for emergency surgery. This was not known at the time, but there was an application for an adjournment on medical grounds. The special adjudicator refused an adjournment and proceeded to hear and dismiss the appeal by a decision notified on 19 4 96. The claimant was granted leave to appeal to the Immigration Appeal Tribunal on 3 5 96, arguing that the special adjudicator should have granted the adjournment. At a hearing on 18 6 96 (the result of which was notified on 3 7 96) both parties agreed that the apecial adjudicator had erred in not granting an adjournment and made a joint submission that the Tribunal should remit the matter for a fresh hearing. The Tribunal accordingly allowed the appeal "to the extent that it is remitted for a hearing de novo" before a different adjudicator.
4. This decision of course involved no adjudication on, nor even consideration of, the merits. It was the sort of matter which in social security adjudication would have been dealt with in the first instance by an application to another tribunal at the same appellate level to set aside the decision, under regulation 10 of the then Social Security (Adjudication) Regulations 1995. A successful application would have resulted in another tribunal hearing the matter afresh. However, under the immigration rules an appellant's only recourse is an appeal to the Immigration Appeal Tribunal. Under rule 17(3) of the Asylum Appeals (Procedure) Rules 1993 in force at the date of the Tribunal's decision, the Tribunal might, where it considered it appropriate to do so, (as it did here) remit the case to a special adjudicator instead of determining it itself.
5. The claimant did not report the special adjudicator's adverse decision, nor the successful appeal, to the income support authorities. Her then solicitors appear to have taken the view that she need not do so as long as she had not received a negative decision on the remitted appeal. I do not know what liaison arrangements, if any, were in force between the immigration and the social security authorities; but if there were any, they broke down, because income support continued in payment. On 16 12 96 the claimant submitted an A1 claim form to cover her new husband as well as herself. The Benefits Agency seems then to have discovered that there had been an adverse decision on the asylum appeal, as the original tribunal submissions recite a review on 6 1 97 disentitling the claimant to income support with effect from 24 7 96 (see below as to the reasons for this change of date), though there is no copy of this decision and payment of income support was not terminated until 10 2 97. The claimant appealed the review decision.
6. The next development was the renewed rejection of her asylum appeal by a different special adjudicator, which was notified on 7 5 97. The Immigration Appeal Tribunal on 21 5 97 rejected a second application for leave to appeal. (The original tribunal submissions, and the Department's submissions on this appeal, say that this rejection took place on 5 6 97, but the May date was provided to me by the claimant's representative, who I assume is in the best position to know, and therefore I have adopted it.)

The legislative background

7. Income support is available under s124 of the Social Security Contributions and Benefits Act 1992 to persons in Great Britain satisfying certain conditions, whose income does not exceed their applicable amount. Applicable amounts are prescribed in Schedule 7 to the Income Support (General) Regulations. But certain categories of persons are excluded from entitlement, and among them are, under regulation 21(3), "persons from abroad", whose applicable amount under paragraph 17 of Schedule 7 is nil. To this rule there is an exception under regulation 70(3) and (3A), which provides for urgent cases payments at a reduced rate in favour of, among others, asylum seekers.
8. Asylum seekers were first given identifiable status in the regulations by an amendment having effect from 2 8 93, following the enactment of the Asylum and Immigration Appeals Act 1993. By regulation 70(3A) a person became an asylum seeker when an asylum claim submitted by him was recorded by the Home Secretary, and ceased to be one when his claim was recorded by the Home Secretary as having been "finally determined or abandoned". Under this formulation it did not matter when an asylum claim was made; and, as both parties to this appeal agree, the status continued until appeal procedures were exhausted. The present claimant thus became an asylum seeker when her claim was recorded as made, and in the absence of legislative change she would have retained that status until her appeal was finally determined - in her case on 21 5 97 when her second application for leave to appeal to the Immigration Appeal Tribunal was rejected.
9. The Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 (SI 1996 No 30) (which I will call "SI 30") introduced extensive changes with effect from 5 2 96. The policy background to these changes is dealt with further below. They introduced into regulation 21(3) of the Income Support Regulations a further category of "person from abroad, namely a person who:

(j) while he is a person to whom any of the definitions in sub-pararaphs (a) to (i) applies in his case, submits a claim to the Secretary of State, which is not finally determined, for asylum under the Convention.

The present claimant fell within subparagraph (b) as a person whose limited leave to enter the UK had expired, and so she also fell within subparagraph (j). As a person from abroad, although entitled to asylum seeker status throughout the course of any appeals she might bring (or so I would read the expression "finally determined"), she had a nil applicable amount under paragraph 17 of Schedule 7, save in so far as she fell within "urgent cases" regulation 70(3) She was in principle capable of doing so under subparagraph (b), also newly-introduced, as being an asylum seeker; but only for so long as she was an asylum seeker "for the purposes of paragraph 3A".

10. This paragraph as amended from 5 2 96 provided in subparagraph (a) that an asylum seeker was a person who submitted an asylum claim on arrival. The appellant had not done this; but her position was preserved by the transitional regulation 12(1) of SI 30, which protected persons already entitled to benefit on 5 2 96. However, subparagraph (b)(ii) of regulation 70(3A) provides that a person

(b) ceases to be an asylum seeker -

(ii) in the case of a claim for asylum which is recorded as determined before 5th February 1996 and in respect of which there is either an appeal pending on 5th February 1996 or an appeal is made within the time limits specified in rule 5 of the Asylum Appeals (Procedure) Rules 1993, on the date on which that appeal is determined.

The claimant came within this subparagraph because she had an appeal pending on 5 2 96. But the question at issue in this appeal is, when was that appeal "determined"?

11. The income support appeal was heard on 11 3 98. The tribunal was presented with a decision purporting to terminate income support entitlement from 19 4 96, the date of notification of the first special adjudicator's decision; and its own decision reflects this. But the written submissions made clear that the date contended for was in fact 24 7 96, when the Asylum and Immigration Act 1996 came into effect. This act was passed following the Court of Appeal's majority decision in R v Secretary of State for Social Security, ex p the Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 holding elements of SI 30 ultra vires because, although within the powers conferred by the Contributions and Benefits Act 1992, they rendered nugatory the rights of "genuine" asylum seekers to pursue the appeal rights given to them by the Asylum and Immigration Appeals Act 1993. The 1996 Act therefore re-enacted SI 30, but only as from the date it came into effect, 24 7 96. This extended the claimant's title to income support to that date, whatever might otherwise be the outcome of her appeal.
12. I record here, though it was not raised before the tribunal, that s11(2) of the Asylum and Immigration Act 1996 empowered the making of regulations by which a person excluded from benefit at any stage of his asylum claim but subsequently recorded by the Home Secretary as a refugee might claim income support for the "missing period" as if he had been recorded as a refugee immediately after making his asylum claim. Under this power, regulation 21ZA was added to the Income Support Regulations from 15 10 96 by the Income Support and Social Security (Claims and Payments) (Miscellaneous Amendments) Regulations, SI 1996 No 2431. It indeed gives a person who is notified that he has been recorded as a refugee by the Home Secretary and thus ceases to be a "person from abroad" 28 days to claim urgent cases income support for the period during which benefit was denied. This therefore rectifies for an ultimately successful asylum seeker, provided he has stayed the course and claims in time, the mischief of having been left without benefit.
13. The tribunal identified the issue as being the date the claimant ceased to be an asylum seeker under regulation 70(3A)(b)(ii), but accepted an argument that this was the date not of the first but of the second adverse decision on the asylum appeal. It observed that the first decision, having in effect been set aside by the Immigration Appeal Tribunal, thereby became a nullity, so that the "operative decision" for termination of the income support award was the second one of 7 5 97. The adjudication officer appealed.

The appeal to me

14. This appeal has also been argued on the interpretation of regulation 70(3A)(b)(ii). The adjudication officer in written submissions relied on three Commissioners' decisions and observations by Dyson J in judicial review proceedings in R v Benefits Agency, ex p Vijeikis, Zaheer and Okito, 10 7 97. But none of these decisions was factually identical to the claimant's situation, because none of the claimants had an appeal pending on 5 2 96 from an adverse decision previously recorded by the Home Secretary. They fell, if anything, within the new regulation 70(3A)(b)(i), which provides that a person ceases to be an asylum seeker when, on or after 5 2 96, his claim is recorded by the Home Secretary as having been determined (other than on appeal) or abandoned.

The competing contentions summarised

15. Miss Bergmann argued that the date on which a pending appeal is "determined" in regulation 70(3A)(b)(ii), so that a person ceases to be an asylum seeker, is as soon as the next decision after 5 2 96 is made on that appeal (her emphasis). She sought to limit "that" appeal to the appeal pending to the special adjudicator, excluding the further appeal the claimant had made to the Immigration Appeal Tribunal in order to get her case reheard by another special adjudicator. She submitted this was the literal meaning of the new regulation; but if this did not convince me, she relied on the clear policy intention said to be shown by the Explanatory Memorandum to the Social Security Advisory Committee (SSAC) when the proposed SI 30 was referred to it, the SSAC's report, and the Secretary of State's statement under s174(2) of the Social Security Administration Act 1992 when laying SI 30 before Parliament.
16. Miss Bergmann agreed that the claimant would have continued to be entitled to income support until the Asylum and Immigration Act 1996 took effect on 24 7 96.
17. Mr Cox argued that "an appeal pending" in regulation 70(3A)(b)(ii) can only be interpreted by reference to the provisions governing immigration appeals, since it is an immigration appeal which is referred to. Under s33(4) of the Immigration Act 1971 an appeal continues to pend until it is "finally determined or withdrawn or...abandoned by reason of the appellant leaving the UK" and that an appeal is not to be "treated as finally determined so long as a further appeal can be brought", and determined or withdrawn, to, by or before the Immigration Appeal Tribunal under s20 of the 1971 Act, or the Court of Appeal under s9 of the Asylum and Immigration Appeals Act 1993. Schedule 2, paragraph 4 of the 1993 Act enacted that certain provisions of the 1971 Act should have effect as if s8 of the 1993 Act (appeals to special adjudicators) were contained in Part II of the 1971 Act; s20 of the 1971 Act was one such provision, but s33(4) was not included until 1 9 96, under an amendment made by Schedule 3, paragraph 5 of the Asylum and Immigration Act 1996. However, Mr Cox submitted that this amendment was "merely clarificatory".
18. On the facts of the present appeal Mr Cox submitted that the claimant lost her asylum seeker status and income support entitlement not on 7 5 97 as the tribunal had found, but on and from 21 5 97 when the Immigration Appeal Tribunal refused her leave to appeal from the second special adjudicator's decision. Her appeal was then "determined", because it could go no further. As a fall-back, he submitted that the tribunal's decision was correct, in that only on 7 5 97 was there a valid determination of her pending appeal.
19. Both parties agreed that the transitional provisions in regulation 12 of SI 30 were irrelevant to this appeal except in relation to the claimant's entitlement up to and including 23 7 96. Both agreed that I could look at the pre-Parliamentary materials, and that the amendments effected by SI 30 were properly to be construed with reference to earlier versions of the regulations (Secretary of State for Social Security v McSherry [1995] SLT 371, of which I was provided with a transcript).

The Department's case

20. Miss Bergmann began by comparing the pre-2 8 93, pre-5 2 96 and post-5 2 96 versions of regulation 70. The pre-2 8 93 version protected, among others, people who were awaiting the outcome of an appeal made under Part II of the Immigration Act 1971, expressly "including any period for which the appeal was treated as pending under s33(4) of that Act", ie until all rights of appeal were exhausted But from 2 8 93 asylum seekers became a separate category under regulation 70(3)(b) and (3A). People awaiting the outcome of a Part II appeal (still expressly treated as pending until final determination in accordance with s33(4)) now appeared in regulation 70(3)(c). The new regulation 70(3A) provided that a person ceased to be an asylum seeker "when his claim [was] recorded by the Secretary of State as having been finally determined or abandoned". (The concept of an appeal being "abandoned" figures in immigration law, but neither party was able to point to such a concept in social security law).
21. However, the wording from 5 2 96 made a person in respect of whom an adverse Home Secretary's decision had been recorded before 5 2 96, but who either had an appeal pending on that date or made one within the Asylum Appeals (Procedure) Rules time limit, cease to be an asylum seeker "on the date on which that appeal is determined". Miss Bergmann argued that the omission in regulation 70(3A)(b)(ii) of the word "finally" before "determined" was a material change in wording which demonstrated Parliament's intention to change the effect of the provisions. Further, the reference to "that" appeal limited the meaning to the appeal actually pending to a special adjudicator and not any onward appeal thereafter.
22. Moreover, regulation 70 no longer contained any reference at all to s33(4) of the Immigration Act 1971; this disappeared along with classes (d)-(j) of regulation 70(3).
23. The Court of Session in McSherry, referring to the decision of a Tribunal of Commissioners in R(IS)4/91, agreed that

The normal canon of construction is that a material change from one version of legislation to another evinces an intention of the legislature to make a change to that effect (page 4 of the transcript).

The omission of insurance premiums from the list of housing costs under Schedule 3 to the Income Support Regulations, in contrast to their express inclusion under the previous Supplementary Benefit (Requirements) Regulations, showed that they were intended not to be allowable housing costs (page 13). The tribunal had, as the Commissioner held, been wrong to treat them as analogous to service charges, and the Commissioner had also been wrong in treating them as analogous to the listed housing costs "as a class" on the basis of some supposed common thread running through all of them (page 13). As counsel for the Department argued (page 8)

It is a strange way to legislate to remove something from the 1983 Regulations which the Commissioner himself accepts was a deliberate omission and then put the same item back into the new Regulations but in a form where it is hardly recognisable and which requires some strained construction.

24. The 1996 amendments were, and were meant to be, draconian This is apparent from the pre-Parliamentary materials. The original draft of what became SI 30 regulation 8(d) amending regulation 70(3A), as presented to the SSAC, in referring to "an appeal pending", made clear that asylum seeker status would cease "on the date on which that appeal is determined" (Miss Bergmann's emphasis). This was the wording the SSAC was commenting on, supplemented by the statement in the Explanatory Memorandum (paragraph 11) that the government believed the availability of benefits throughout the asylum process was "an incentive for failed asylum seekers to lodge and prolong unfounded appeals". The SSAC at paragraphs 51 and 53 of its report duly criticised withdrawal of benefit from an asylum seeker "while pursuing an asylum appeal" and "during the appeals process". The government's response at paragraphs 23 and 24 of the Secretary of State's statement under s174(2) was to maintain its refusal to "reward those who lodge and spin out appeals no matter how undeserving or hopeless the case" by allowing benefit. And at paragraph 59 it was stated that asylum seekers in receipt of income support when the regulations came into force on 5 2 96 "will be entitled to retain that benefit unless and until the asylum claim or appeal is next rejected" (again Miss Bergmann's emphasis).
25. Miss Bergmann conceded that the judgments in Vijeikis, both at first instance and in the Court of Appeal, contain observations which appear to support the claimant's case. Judge LJ, for example, said at page 8F of the transcript, in relation to Mr Zaheer whose application had been determined against him by the Home Secretary after 5 2 96, and who was therefore caught by regulation 70(3A)(b)(i),

His appeal against that determination did not preserve his position as an asylum seeker for the purposes of income support. It is true that if the determination had taken place in January 1996 and an appropriate appeal launched in time, income support would have been payable until the final determination of that appeal.

But, said Miss Bergmann, this, like the other observations, was obiter (a point agreed by Mr Cox, though he observed that they were understandable and neither odd nor strange). Moreover, Judge LJ had misused the word "final", which did not appear in regulation 70(3A)(b)(ii); and of course he was right in saying that someone in the claimant's position with an appeal pending would continue to be entitled to income support for longer than someone in Mr Zaheer's position - just not as long as the remark suggested.

26. I asked Miss Bergmann whether, if the 1996 amendments did mean that asylum-seeker status for income support ceased when the next decision was made on a pending appeal, this would apply even where, as here, the "next" decision was in effect set aside by the Immigration Appeal Tribunal and remitted for rehearing before a different special adjudicator. It would then be reheard as the same appeal that had originally been pending. I postulated a first special adjudicator's decision that was entirely devoid of sense. Miss Bergmann submitted that what was envisaged by the next decision was simply a determination by a judicial body, however inadequate and whether right or wrong.

The claimant's case

27. Mr Cox's written submissions helpfully set out the structure of immigration appeals and appended relevant provisions of the 1971 Act, the Asylum and Immigrations Appeals Act 1993 and the 1993 and 1996 Asylum Appeals (Procedure) Rules. As stated above, his argument was that "appeal" in regulation 70(3A)(b)(ii) has no special definition and can therefore only mean an appeal as governed by the immigration provisions, including s9 of the 1993 Act (appeals to Court of Appeal) and ss20 and 33(4) of the 1971 Act.
28. Regulation 70(3) in its pre-2 8 93 form covered in (b)-(d) people seeking leave to remain without a bar on recourse to public funds (including, by implication, asylum seekers) throughout the appeals procedure. The 1993 amendment expressly recognised asylum seekers (whose protection throughout the appeals procedure until the claim was "finally determined" was secured by the new subparagraph 3A) while removing the rest. Reference to s33(4) disappeared from regulation 70 only as a result of the wholesale removal in 1996 of all the immigration-related classes previously in subparagraph 3(a)-(j) and the adding back of asylum seekers (together with certain other people).
29. The only significance of omitting the word "finally" before "determined" in regulation 70(3A)(b)(ii) is the change in terminology from a "claim" in the previous version of subparagraph (3A)(b) to a "pending appeal". A "claim" is not "finally" determined until all avenues, including judicial review, have been exhausted. An "appeal" is limited to appeal rights provided by statute; in this instance the immigration legislation which in s33(4) has its own code for spelling out when an appeal is "determined", and which does not include judicial review. That it is the immigration legislation which the draftsman had in mind is reinforced by the reference to the 1993 Asylum Appeals (Procedure) Rules in regulation 70(3A)(b)(ii) so as to allow those who did not have an appeal pending on 5 2 96 but made one within the prescribed time to be treated on the same footing as those whose appeal was already pending, and therefore to have the benefit of s33(4).
30. That subsection provides that an appeal shall not be treated as finally withdrawn so long as a further appeal can be brought, nor until such further appeal is determined or withdrawn. This means that the initial appeal is treated as the same appeal throughout. It is an appeal from the Home Secretary's determination, not an appeal to any particular level of adjudication.
31. Everyone in respect of whom there was an appeal pending (in the s33(4) sense) on, or an appeal was made within the short permitted time after, 5 2 96 was therefore put on the same footing, in contradistinction to those who received a Home Secretary's determination only on or after that date. If Miss Bergmann's construction of "appeal pending" as referring only to an appeal to a special adjudicator were correct, a person who on 5 2 96 had an appeal pending to the Immigration Appeal Tribunal or the Court of Appeal (or made one within the short permitted time) would not be protected.
32. Miss Bergmann's construction also ignores people whose appeals succeed. Confining "appeal pending" to an appeal to a special adjudicator would create an anomaly for a person whose appeal to a special adjudicator had succeeded shortly before 5 2 96, so that it was no longer pending, and who would be deprived of income support during an appeal made by the Home Secretary to the Immigration Appeal Tribunal which would require leave, and so would not be "pending". And a person who succeeded in an appeal to a special adjudicator after 5 2 96 would also lose asylum seeker status during any further appeal pursued by the Home Secretary. He would cease to be an asylum seeker under regulation 70(3A)(b)(ii) as soon as the favourable decision was made. And under regulation 21ZA(1) he would not cease to be a person from abroad (with a nil applicable amount) under regulation 21(3)(j) until he was notified that the Secretary of State had recorded him as a refugee.
33. Yet another anomaly is demonstrated by a person whose appeal had been dismissed by a special adjudicator shortly enough before 5 2 96 that an appeal would still have been possible under the asylum appeal rules but who did not in fact appeal. Under the previous version of regulation 70(3A) he had his benefit protected until all appeal procedures had been exhausted; but the regulations were changed before this happened and he is not covered under either limb of the new regulation 70(3A)(b), so he never does cease to be an asylum seeker and removing his urgent cases income support would not be warranted.
34. In Mr Cox's submission the pre-Parliamentary materials did not give the unequivocal support claimed for Miss Bergmann's interpretation. The draft of SI 30 put before the SSAC contained no reference to the Asylum Appeals (Procedure) Rules, and it must therefore have been assumed the immigration rules would apply. The government in its Explanatory Memorandum (paragraphs 15 and 41) said nothing clear-cut about when the proposed benefit cut-off should apply to those who claimed asylum after entry. The SSAC at paragraph 6, in saying that those who on the relevant date were already in the process of appeal against a rejection "would remain entitled to benefit until the appeal is determined" look as if they thought this meant they would remain entitled until the appeal was finally determined in the old sense; though at paragraph 65 one of their recommended changes to "cushion some of the harshest effects" of the government's proposals was full transitional protection for people in receipt of benefit at the commencement date "including any period of appeal". The government statement at paragraph 23 equated the position of asylum appellants to that of UK claimants, who also lose their benefit pending appeal. Paragraphs 29 and 59 refer to stopping benefit, but again do not say precisely when. None of these references helps to interpret "appeal pending" in regulation 70(3A)(b)(ii).
35. Mr Cox's fallback position was that the tribunal had been correct in regarding only the second special adjudicator's decision as a valid determination. Once the Immigration Appeal Tribunal had, under regulation 17(3) of the Asylum Appeals (Procedure) Rules 1993, remitted the case instead of determining the appeal itself, the first special adjudicator's decision was "nullified"; the appeal before the second special adjudicator was therefore the same appeal from the Home Secretary's determination as that which was pending on 5 2 96.
36. However, Mr Cox saw problems in supporting this approach rather than his main submission that appeals continued to pend in accordance with s33(4) of the Immigration Act until the possibility of further appeal was exhausted. What if the claimant in this case had obtained leave to appeal to the Immigration Appeal Tribunal a second time, and the case had again been remitted? She would, on the tribunal's view, have ceased to be an asylum seeker on the second special adjudicator's adverse decision, and cesser is a one-off occurrence. But it might be wrong if that decision also turned out to have been defective and had to be remitted. It would be undesirable to have the status of asylum seeker ceasing and then later being restored: R v Home Secretary, ex p Salem [1999] 2 WLR 1.

The Department's response

37. Miss Bergmann's responded that Mr Cox was wrong to say (paragraph 28 above) that reference to s33(4) of the Immigration Act disappeared from regulation 70 only on the wholesale removal of various immigration-related classes from benefit in 1996. It had ceased to apply to asylum seekers in 1993, when they were made a separate category from people awaiting the outcome of an Immigration Act appeal. If his argument that "appeal pending" in regulation 70(3A)(b)(ii) was to be interpreted in the s33(4) immigration sense were accepted, the 1996 amendments would have left the previous position unchanged for existing appellants. This would be contrary to the intentions expressed in the pre-Parliamentary materials and the s174(2) statement. I would be wrong to assume, in the face of the whole trend of legislative history, that the omission from the original draft of SI 30 examined by the SSAC of any reference to the asylum appeal rules meant that s33(4) was intended to apply.
38. The amendments might have created various anomalies as suggested by Mr Cox; but this was simply unfortunate (like various other anomalies which had emerged from other cases such as Vijeikis). Ex p Salem, referred to by Mr Cox, concerned regulation 70(3A)(b)(i), which provides that a person ceases to be an asylum seeker, where his claim is recorded by the Home Secretary on or after 5 2 96 as having been determined (other than on appeal) or abandoned, on the date on which it is so recorded. A refusal of asylum was recorded in the asylum file on 7 5 97 but was never communicated to Mr Salem, and the Home Secretary continued to receive representations from him. The determination was, however, rather belatedly communicated to the Benefits Agency, which stopped Mr Salem's income support. This was the first he knew about it. Nonetheless, the majority in the Court of Appeal held that the 7 5 97 decision taken and recorded on the asylum file adequately "recorded" the asylum claim as having been "determined", so that Mr Salem ceased to be an asylum seeker under regulation 70(3A)(b)(i) and urgent cases income support was validly stopped. The Home Secretary's continuing duty under the Refugee Convention to consider representations made from time to time which might cause him to reconsider his refusal of asylum did not affect the conclusive character of that recorded refusal for benefit purposes under regulation 70. This illustrated, said Miss Bergmann, that cesser of the status of asylum seeker for benefit purposes was independent of the progress of asylum or immigration proceedings.
39. I asked both representatives if they could guide me to any definition of a pending appeal in the social security legislation. They referred me to regulations 37 and 37A of the Social Security (Claims and Payments) Regulations, concerning suspension of benefit while appeals against a favourable decision are being pursued, respectively, in the claimant's own case and in an "identical case". Regulation 37 refers to an appeal and to an application or petition for leave to appeal (depending on what decision is being challenged) and provides that the suspension may continue "until the appeal or the application or the petition and any subsequent appeal have been determined". Regulation 37A, which applies only to appeals from a Social Security Commissioner and upwards, and also expressly covers judicial review, also refers separately to an appeal and to an application or petition for leave to appeal and provides that the suspension may continue, if an application or petition for leave is lodged, until that application or petition and "any consequent appeal" has been determined. The references to a petition would appear to include appeals to the House of Lords.
40. These provisions, though they have given rise to controversy, attempt expressly to prescribe through what stages of appeal a suspension is to last, and therefore I do not find them of any help in construing what the draftsman of regulation 70(3A)(b)(ii) meant by "appeal pending".

Decision

41. I have not found this an easy case to determine. As has become apparent in recent years, SI 30 was not the most happily drafted of statutory instruments, and its alleged unfairness has led to many challenges. But I am satisfied that Miss Bergmann's interpretation of regulation 70(3A)(b)(ii) (subject to the JCWI ruling and the consequent re-enactment of the relevant parts of SI 30 only from 24 7 96) is correct. It preserves the position only of those who had an appeal to a special adjudicator pending on 5 2 96 or who made such an appeal within the time limited by rule 5 of the Asylum Appeals (Procedure) Rules 1993; and it preserves that position only until that appeal is determined by the decision of a special adjudicator (or by being withdrawn or abandoned).
42. It does not escape me that the words I have added in brackets do not appear in the amended regulation, as "abandoned" did (without definition) appear in regulation 70(3A) following the 1993 amendments. The concept of withdrawing an appeal by some positive act requires no special consideration, and did not receive it in 1993. It is specifically provided for in social security adjudication. In immigration adjudication it is not, but it is recognised in case law (Jackson, Immigration Law and Practice, 1996, page 748). "Abandonment" is not a concept recognised in social security adjudication and nor was it defined, so far as I can discover, in immigration adjudication. But rule 9(4) of the Asylum Appeals (Procedure) Rules 1993 provided that a special adjudicator should determine an appeal by hearing unless, inter alia, he was satisfied on the material before him or the appellant's conduct that the appeal had been abandoned by the appellant. This made the question of abandonment one to be decided by the special adjudicator as part of the "determination" of the appeal. There was therefore no need for the 1993 Regulations to have referred to abandonment as a separate concept, and there was no need for the 1996 Regulations to do so. The words "or is abandoned by reason of the appellant leaving the United Kingdom" do appear in s33(4) of the Immigration Act; but they were inserted (under the Asylum and Immigration Act 1996) only with effect from 1 10 96. I am therefore satisfied that the amendment made in SI 30 does not require me to read into it anything that is not there, simply because "abandonment" was mentioned, as mere surplusage, in 1993.
43. It seems inescapable that the omission from the amended regulation 70(3A)(b)(ii) of the word "finally" before "determined" was meant, in accordance with McSherry, to effect some change from the 1993 regime. I further note that regulation 21(3)(j), also introduced by SI 30, which defines when an asylum seeker is a "person from abroad", does still use the expression "finally determined" (though in that context still in relation to the "claim" rather than an appeal). This may be because it is designed to preserve the Schedule 7 nil applicable amount throughout the pursuit of any appeal under the immigration provisions. But I do not think the differing formulations are accidental. Nor am I convinced by Mr Cox's argument that the only reason for omitting "finally" was to reflect the change from "claim" to "appeal" and so to ensure only that benefit should not continue during any judicial review proceedings. He might have drawn some support from regulation 21(3)(j) which still refers to "claim". But his argument seemed reminiscent of the McSherry comment about what is accepted as a deliberate omission being put back in a form "where it is hardly recognisable and which requires some strained construction".
44. I do of course agree with Mr Cox that "that" appeal in regulation 70(3A)(b)(ii) must mean an immigration appeal. It could hardly, from the context, mean anything else; and I note that throughout these proceedings (including in the original decision of the adjudication officer) the immigration practice of dating decisions from their date of dispatch has been adopted. But I cannot accept his argument that this must import the provisions of s33(4) of the Immigration Act. Asylum seekers were divorced from reference to this subsection by the 1993 amendments to regulation 70; and it disappeared altogether from the regulation with the 1996 amendments. Further, it was not until 1 9 96 that s33(4) was included among those provisions of the Immigration Act that were to have effect as if s8 of the Asylum and Immigration Appeals Act were contained in Part II of the Immigration Act. I do not accept Mr Cox's submission that this amendment, made under the Asylum and Immigration Act 1996, was "merely clarificatory".
45. Appeals to the Tribunal under s20 of the 1971 Act were, however, included by 5 2 96; and I wondered whether "appeal pending" in regulation 70(3A)(b)(ii) might cover at least those appeals, or even any appeal that happened to be pending on 5 2 96. Read alone, the expression would be quite capable of doing so. But the latter part of the subparagraph refers only to an appeal brought within the time limits specified in rule 5 of the Asylum Appeals (Procedure) Rules 1993. Rule 5 comes within Part II of the Rules, headed "Appeals to Special Adjudicators". Further appeals are governed by rules in Part III headed "Appeals to Tribunal from Special Adjudicator" and Part IV headed "Appeals from Tribunal". That rule 5 only is referred to persuades me that only an appeal to a special adjudicator was contemplated; and therefore it is overwhelmingly likely that "appeal pending" in the earlier part of the subparagraph has the same limited meaning. It is, then, the determination of "that" appeal to a special adjudicator that would give rise to cesser of asylum seeker status.
46. Mr Cox is right that this construction gives rise to anomalies. The break between the old and the new regime is not as clean as could be wished. People with appeals pending on 5 2 96 other than to a special adjudicator, who might be argued to have had vested rights under the 1993 provisions to have their benefit continued, undoubtedly lose out. An argument might have been mounted under s16 of the Interpretation Act. It might have been argued that the JCWI decision had held the relevant provisions ultra vires and that their re-enactment by the 1996 Act should only be construed adversely to vested rights where such a construction was inescapable.
47. But I have held that it is inescapable. I am fortified in my overall conclusion, if I am wrong to have found that there was no ambiguity in the amended regulations, by the pre-Parliamentary materials. I prefer Miss Bergmann's interpretation of these, and of the s174(2) statement, as set out at paragraph 24 above, to that of Mr Cox at paragraph 34. It seems clear to me that the SSAC at paragraph 65 of its report did realise what the government intended when it called for transitional protection for everyone in receipt of benefit at 5 2 96, including any period of appeal. Paragraphs 29 and 59 of the statement are quite clear that it is the next decision/rejection that will terminate benefit entitlement.
48. Mr Cox urged, with justice, that the interpretation of regulation 70(3A)(b)(ii) which I have adopted could prejudice asylum seekers who succeeded before a special adjudicator, either just before or at some time after 5 2 96, if the Home Secretary appealed. Their asylum seeker status, and hence their benefit, would cease on issue of the special adjudicator's decision, but they would continue under regulation 21(3)(j) of the Income Support Regulations to be persons from abroad with a nil applicable amount until their claim was finally determined. This did cause me concern, though I have no idea how often the Home Secretary does in fact appeal such favourable decisions. But I accept Miss Bergmann's argument, as set out in paragraph 38 above, that this is simply unfortunate; and I must add my voice to the judicial chorus of "hard luck" which has in so many cases, though less crudely expressed, greeted arguments based on "unfairness" to people caught by the 1996 amendments. Even in the JCWI case, although the majority struck down the 1996 amendments as rendering immigration appeal rights nugatory, the court unanimously recognised the right of the Secretary of State for Social Security, in discharge of his responsibility for the benefit budget, to provide by regulation benefits for some categories of asylum seekers and not for others (pages 282, 288-9). And the majority decision in Ex p Salem reinforces the separation of the benefit rules in regulation 70(3A) from the immigration rules.
49. I take comfort from the fact that a person who ultimately succeeds on an appeal brought by the Home Secretary, like any other successful asylum seeker, can now under regulation 21ZA of the Income Support Regulations recover the urgent cases income support of which he has been deprived during the progress of the appeal. But as this regulation was not introduced until 15 10 96, it cannot be invoked as an aid to construing regulation 70(3A).
50. The other anomaly pointed out by Mr Cox was the position of an asylum seeker whose time for appeal against an adverse decision of a special adjudicator was still running at 5 2 96 but who did not appeal, and would therefore never undergo a cesser of his asylum seeker status. This may be so; but I have heard of no appeal being brought on that ground against termination of income support to such a person once his rule 5 time limit expired.
51. I agree with Miss Bergmann that Judge LJ in Vijeikis mistakenly imported the word "final" into regulation 70(3A)(b)(ii) (he made the same mistake at page 3D). His observations were also obiter, as both sides agreed. The same applies to passages in the judgment of Dyson J at pages 8, 13 and 16 of the unrevised transcript, which suggest he was under the same impression as Judge LJ, though he did not import the word "final".
52. I was not invited to consider whether there was a legislative ambiguity requiring me to concern myself with the compatibility of the provisions with the European Convention on Human Rights; and since I have found no ambiguity, either on the literal or the purposive approach to construction, I need not do so.
53. There remains the question of whether in the present case it was the first or the second special adjudicator's decision that brought about the cesser of the claimant's asylum seeker status. I can see why the tribunal was tempted (as I was initially) to regard the second decision as the "operative" one. The first was affected by what everyone agreed was a procedural irregularity, the failure to adjourn, and the appeal was remitted for rehearing without any consideration of the merits. In social security adjudication, the first decision would have been set aside, either by another tribunal under the specific setting-aside provision in the Adjudication Regulations or by a Commissioner on appeal, and thus have ceased to have effect. Commissioners allowing an appeal are expressly required to set aside the tribunal's decision, whether they remit the appeal or substitute their own decision: s23(7) of the 1992 Administration Act, now s14(8) of the Social Security Act 1998.
54. But the immigration adjudication rules contain no such provisions. Adjudicators have no power to set either their own or any other adjudicator's decisions aside. The Immigration Appeal Tribunal exercised its power under rule 17(3) of the Asylum Appeals (Procedure) Rules 1993 to remit the case to an adjudicator "for determination by him", but it was neither required nor empowered to set aside the decision which had been successfully appealed. As Brooke LJ pointed out in Ex p Salem at page 22H, public law no longer recognises the distinction between void and voidable decisions, so that a decision, even if defective, remains in force unless and until it is set aside. It is not "nullified" as the tribunal thought, and as Mr Cox suggested. Therefore it was the first special adjudicator's decision that wrought the cesser of the claimant's asylum seeker status (subject to the extension of that status until 24 7 96). That decision was not affected by the JCWI holding, because it was an immigration, not a benefit, decision.
55. In the absence of set-aside provision in the immigration rules, Miss Bergmann was right in her submission that all that was needed to trigger the cesser of asylum status under regulation 70 was that there should be a decision on an appeal by a judicial body, however inadequate. Hobhouse LJ, who dissented in Ex p Salem, was offended by the idea of cesser being triggered by a file notation, never communicated to the claimant and followed by a chaos of administrative delays and further representations, no substantive decision on leave to enter (to which the asylum decision was only in the nature of a condition precedent) having been taken by the date of the hearing. It may have been this dissent to which Mr Cox was referring when he cited Salem as showing the inconvenience of adopting the second special adjudicator's decision as the operative one in the present case. But the majority took the robust view.
56. This appeal therefore succeeds.
57. I issued a direction to both parties on 16 5 00 asking for a copy of Ex p Salem, which I had not been able to locate. I have managed to obtain one, so there is no need to comply with the direction.

(signed) Christine Fellner

Commissioner

7 June 2000