Yildiz v. Secretary of State for Social Security  UKSSCSC CIS_6258_1999 (28 February 2001)
(Yildiz v. Secretary of State for Social Security  EWCA Civ 309)
Mr. J. Mesher CIS/6258/1999
CA (Henry, Ward and Buxton LJJ)
Asylum seeker - break in entitlement after Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 came into force - whether transitional protection applies to fresh claim
The claimant was a Turkish national who arrived in the United Kingdom on 7 February 1994 and claimed asylum on 23 February 1994. He received income support at the urgent cases rate from
8 March 1995 as his claim for asylum had not been recorded as either finally determined or abandoned (regulation 70(3A) of the Income Support (General) Regulations 1987). Income support ceased to be paid on 12 August 1998 when he started remunerative employment. The employment ended on 4 September 1998 and he received jobseeker's allowance from 8 September 1998 until 7 March 1999. When that allowance was terminated, he claimed income support. His claim was rejected on the basis that regulation 70(3A) had been amended from 5 February 1996 to require the claim for asylum to be made "on his arrival … in the United Kingdom" and the saving provision in regulation 12(1) only applied to entitlement on the claim which was in existence on 5 February 1996. The tribunal confirmed the adjudication officer's decision and the claimant appealed to the Commissioner with leave from the chairman. The issue had arisen on the same facts in another appeal, CIS/1115/1999, and the question was decided against the claimant after an oral hearing. The Commissioner had followed CIS/3955/1997 and CIS/4609/1997 which also raised the same question but in relation to regulation 12(2).
Held, by the Commissioner, dismissing the appeal, that:
the Commissioners' decisions in CIS/1115/1999, CIS/3955/1997 and CIS/4609/1997 had been reached after full argument at oral hearings and should be followed as the conclusion on the meaning was one which could reasonably have been reached.
The Commissioner indicated that he might not have taken the same view had the question arisen afresh before him. He granted leave to appeal to the Court of Appeal.
Held, by the Court of Appeal, allowing the appeal that:
- transitional protection was not a term of art and nothing followed from the fact that a provision could be labelled as transitional (para. 9), the Court had to apply and construe the legislative language which the Secretary of State did in fact use i.e. the terms of regulation 12, in its different paragraphs, and not any supposed policy that the transitional protection should be minimal;
- unlike R v. Chief Adjudication Officer ex parte B  1 WLR 1695, where the court was driven to its conclusion by the specific words "until such time as his entitlement to that benefit is reviewed" in regulation 12(3), no such words were to be found in regulation 12(1) which addressed not the benefit in general terms but the specific case of a person "who becomes an asylum seeker under regulation 70(3A)(a) of the Income Support Regulations" i.e. a person who submitted a claim for asylum which remained undetermined on 5 February 1996. The effect of disapplying regulation 8(3)(c), was to continue the status of the applicant as an asylum seeker under the existing regulations which conferred on him the right to urgent cases payments under regulation 70. This right was not expunged simply by a period of employment;
- the fact of being entitled to benefit on 5 February 1996 was the precondition of the application of regulation 12(1) to the case (R v. Secretary of State ex parte Vijeikis, unreported 5 March 1998). Once the precondition was established, the operation of the transitional provisions was controlled by their terms and not by the precondition. The terms provided that the applicant continued to be entitled to claim because he continued to have the status of an asylum seeker for the purposes of the 1987 Regulations. The status was not lost by reason of a period of employment. It was lost after his asylum claim was finally determined;
- on the plain wording of regulation 12(1), the claimant's right to urgent cases payments under income support provisions did not disappear for all time as soon as he took employment. Those provisions continued subject to his fulfilling the other qualifying conditions until the determination of his asylum claim. If the Secretary of State had really wished to implement a policy of subjecting asylum seekers to a "life so destitute that no civilised nation can tolerate it" (per Simon Brown LJ in R v. Secretary of State ex parte JCWI  1 WLR at p. 92F), then he would have to use very clear words to that effect (para. 17).
The Commissioner's decision was set aside and a decision substituted to the effect that "between the date of claim and 23 March 2000, the claimant was an asylum seeker with an income support applicable amount of the urgent cases payment rate."
DECISION OF THE SOCIAL SECURITY COMMISSIONER
"(1) Where, before the coming into force of these Regulations, a person who becomes an asylum seeker under regulation 4A(5)(a)(i) of the Council Tax Benefit Regulations, regulation 7A(5)(a)(i) of the Housing Benefit Regulations or regulation 70(3A)(a) of the Income Support Regulations, as the case may be, is entitled to benefit under any of those Regulations, those provisions of those Regulations as then in force shall continue to have effect [(both as regards him and as regards persons who are members of his family at the coming into force of these Regulations)] as if regulations 3(a) and (b), 7(a) and (b) or 8(2) and (3)(c), as the case may be, of these Regulations had not been made."
The words in square brackets were added with effect from 24 July 1996 by virtue of paragraph 5 of Schedule 1 to the Asylum and Immigration Act 1996.
"(2) Where, before the coming into force of these Regulations, a person, in respect of whom an undertaking was given by another person or persons to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled, or is receiving benefit, under the Council Tax Benefit Regulations, the Housing Benefit Regulations or the Income Support Regulations, as the case may be, those Regulations as then in force shall have effect as if regulations 3, 7 or 8, as the case may be, of these Regulations had not been made.
(3) Where, before the coming into force of these Regulations, a person is receiving attendance allowance, disability living allowance, disability working allowance, family credit, invalid care allowance or severe disablement allowance under, as the case may be, the Attendance Allowance Regulations, Disability Living Allowance Regulations, Disability Working Allowance Regulations, Family Credit Regulations, Invalid Care Allowance Regulations or Severe Disablement Allowance Regulations, those Regulations shall, until such time as his entitlement to that benefit is reviewed under section 25 or 30 of the Social Security Administration Act 1992, have effect as if regulation 2, 4, 5, 6, 9 or 11, as the case may be, of these Regulations had not been made."
"In so far as the Commissioners are concerned, on questions of legal principle, a single Commissioner follows a decision of a tribunal of Commissioners unless there are compelling reasons why he should not, as, for instance, a decision of superior Courts affecting the legal principles involved. A single Commissioner in the interests of comity and to secure certainty and avoid confusion on questions of legal principle normally follows the decisions of other single Commissioners (see decisions R(G) 3/62 and R(I) 23/63). It is recognised however that a slavish adherence to this could lead to the perpetuation of error and he is not bound to do so."
In the two decisions referred to it was said that the Commissioners' practice was to follow earlier decisions of the Commissioner unless completely satisfied that they are erroneous, and that weight was given to whether or not the earlier decision was given after an oral hearing at which there was full argument. I take that approach to be incorporated into paragraph 21 of R(I) 12/75. The fundamental principle is as valuable today as it was in 1975 and before. Indeed, with the increase in the number of Commissioners, it may be more valuable in the avoidance of confusion and in the discouragement of attempts to shop around Commissioners in the hope of eliciting some disagreement.
"19. The Government has decided that existing claimants will have their entitlement to benefit protected only until the next relevant decision on their case. Those who receive a final negative determination on their asylum claim will lose entitlement at that point, as is the case at present. However, existing claimants who receive a negative decision (other than a final decision) will lose their entitlement only when the new regulations come into effect. For example, an asylum applicant whose claim for asylum is rejected by the Home Office in November will lose entitlement when the amended regulations are expected to come into force on 8 January. The Government sees no justification for continuing to pay benefits to people who are considered by the immigration authorities not to be refugees."
20. The treatment of new claimants will depend on whether they fall into the in-country applicant or port applicant category. In-country applicants who claim benefit from 12 October, and are not nationals of a country notified by the Home Secretary as having undergone a significant upheaval, will lose entitlement when the new regulations come into force. The entitlement of port applicants and in-country applicants from upheaval countries will be affected by the next decision on their asylum claim. If that decision is made prior to the regulations coming into force, entitlement will cease when the regulations take effect. If the decision is made after the regulations come into force, entitlement will cease at the point when the decision is made."
"29. The Government believes that the inclusion of the original transitional arrangements in the October announcement has therefore served its purpose. The Government has therefore decided to amend substantially the effect of the regulations on asylum seekers who are in receipt of benefits when the regulations come into force. The effect will be that all asylum seekers who are in receipt of income support, housing benefit or council tax benefit when the new regulations take effect will retain entitlement to these benefits up to the point of the next decision on their asylum claim. Therefore, in-country applicants who claimed benefit after October will retain entitlement until an initial negative decision on their case is made by the Home Office, while existing claimants who are awaiting an outcome of an appeal will retain entitlement until the decision on the appeal goes against them.
30. These revised provisions will give those refused refugee status time to make decisions on their future, and will ease the circumstances of those whose journey to the UK and subsequent claim for asylum may have been based on ignorance of the new rules."
Date: 22 June 2000 (signed) Mr. J. Mesher
The claimant appealed to the Court of Appeal. The decision of the Court of Appeal follows.
DECISION OF THE COURT OF APPEAL
Mr. N. Pleming QC & Mr. B. Jaffey (instructed by Leigh Day & Co) for the Appellant.
Miss N. Lieven (instructed by Solicitor to the Department of Social Security) for the Respondent.
LORD JUSTICE BUXTON:
"... all asylum seekers who are in receipt of income support ... when the new regulations take effect will retain entitlement to these benefits up to the point of the next decision made on their asylum claim."
"12(1) Where before the coming into force of these Regulations [i.e. 5 February 1996] a person who becomes an asylum seeker under … the Income Support Regulations … is entitled to benefit under … those Regulations those provisions of those Regulations as then in force shall continue to have effect as if regulation … 8(3)(c) … of these Regulations had not been made.
12(2) [makes similar provision in respect of persons in respect of whom undertakings of support had been given by other persons].
12(3) Where before the coming into force of these Regulations a person is receiving attendance allowance [or other identified medically-related benefits] … the Attendance Allowance Regulations [and the regulations relating to the other benefits dealt with in this sub-regulations] shall, until such time as his entitlement to that benefit is reviewed under section 25 or 30 of the Social Security Administration Act 1992 have effect as if [the provisions in the 1996 Regulations equivalent to regulation 8(3)(c)] had not been made."
"It would be inept to speak of someone who once was, but no longer is, entitled to benefit as a person as regards whom the provisions 'continue' to have effect. For something to continue it must exist. It cannot be something that once existed but no longer exists"
"On my reading of regulation 12, there is a theme that clearly runs through all three paragraphs. Put crudely, it is that protection is given to preserve rights that existed on 4 February 1996, but that protection is brought to an end at the first decent opportunity. That means at the end of the current award of benefits of last resort and at the first review, if earlier, for the other benefits."
LORD JUSTICE WARD:
"Although the impact of these regulations on these particular individuals will plainly be severe - indeed particularly in the case of Vijeikis very harsh, because the effect of the decision is to penalise him and his family for trying to find work and avoid, as is now the current phrase, "dependency" - the proper interpretation of these regulations does not, in my judgment, permit a more generous construction of them than would otherwise be appropriate when their meaning is clear."
"... those provisions of those Regulations as then in force shall continue to have effect as if regulation ... 8(3)(c) ... of these Regulations had not been made."
"... the purpose of the 1996 Regulations is plain and obvious. It is, inter alia," (I emphasise those two words) "to curtail the rights to benefit of asylum seekers."
"The Government has therefore decided to amend substantially the effect of the regulations on asylum seekers who are in receipt of benefits when the regulations come into force. The effect will be that all asylum seekers who are in receipt of income support ... when the new regulations take effect will retain entitlement to those benefits up to the point of the next decision made on their asylum claim."
"On my reading of regulation 12 there is a theme that clearly runs through all three paragraphs. Put crudely, that is that protection is given to preserve rights that existed on 4 February 1996, but that protection is brought to an end at the first decent opportunity."
LORD JUSTICE HENRY:
Order: Appeal allowed with costs; permission to appeal to House of Lords refused. (Order does not form part of approved judgment)