UK Social Security and Child Support Commissioners' Decisions

[2002] UKSSCSC CIS_2091_2001 (10 October 2002)

 


1. The decision of the Social Security Appeal Tribunal dated 26 January 2001 is erroneous in law. I set that decision aside and, as empowered by section 14(8)(a)(ii) of the Social Security Act 1998, I give my own decision which is that the tribunal of 26 January 2001 had no jurisdiction to hear the claimant's appeal.
2. The Secretary of State appeals, with the leave of the chairman, against the tribunal's decision that the claimant is lawfully present in the United Kingdom for the purposes of regulation 2(1) of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 as read with paragraph 4 of Part I of the Schedule to those Regulations and that the claimant's entitlement to Income Support should be assessed on that basis from 11 July 2000.
3. The claimant is a Polish National who applied for political asylum on the day of his arrival in this country at the airport at which he arrived. He was refused asylum but was granted temporary leave to remain in the United Kingdom while a decision on his appeal against that refusal was pending. He was refused Income Support on the grounds that he was a person from abroad who, having only temporary permission to remain, was not lawfully present in the United Kingdom.
4. The statement of the tribunal's reasons for sustaining the claimant's appeal to it includes the following paragraphs:-

" 2. He had been refused asylum on 19.10.99. The Decision Maker decided on 20.7.00 there was no entitlement from 11.7.00 as he was 'a person from abroad' with an applicable amount of nil. There was no qualification for Urgent Case payments. He appealed on 16.8.00. In the appeal he relied on the fact that Poland had ratified the European Convention on Social and Medical Assistance and was lawfully present in the United Kingdom. The decision was reconsidered on 6.9.00 but was unchanged. New legislation affected the decision from 3.4.00.",

" 5. The Tribunal was directed to the Social Security (Immigration and Asylum) Consequential Amendment Regulations 2000 (SI 2000 No. 636) which came into force on 3 April 2000 and by Article 2 the instrument detailed the persons not excluded from specified benefits under section 115 of the Immigration and Asylum Act 1999. They were specified in Part I of the Schedule to the Regulations and by paragraph 4 a person has to be a national of a State which has ratified the European Convention on Social and Medical Assistance (as is here the case when Poland ratified on 25.6.97) and who is "lawfully present in the United Kingdom.",

" 8. The Immigration and Asylum Act 1999 made clear the position of those claiming benefits. There was no entitlement to a person subject to Immigration Control unless prescribed conditions applied. Section 115 is disapplied in cases that fall within Part I of the Schedule to the 2000 Regulations. Parliament must be taken to have taken pains to safeguard the rights and obligations to those nationals the subject of International Treaty. The wording of paragraph 4 needs to be interpreted in a purposeful way. The phrase "lawfully present" is not as specific as the meaning of "Immigration Control" in section 115(a). [The claimant] is obviously subject to Immigration Control. The purpose of paragraph 4 is to cover a wider group. The House of Lords in the case of Cozens v. Brutus 1973 required ordinary English words to have an ordinary meaning, where the words impact on Treaty obligations they must also be interpreted in a teleological way to ensure Treaty obligations are met in the interests of comity of nations. The Tribunal were satisfied that lawfully present meant that [the claimant] was in the United Kingdom with the knowledge of the State and with a legal permit. [The claimant] was given temporary admission by the Immigration and Nationality Department. They have kept his passport and given him a SAL1 to show to the police and Benefits Agency. He was both present and lawfully present (and requires medical treatment as envisaged by the Convention)." and

" 9. The appeal was allowed and his Income Support should be assessed from 11.7.2000 by the Decision Maker.".

5. The provisions of the Immigration and Asylum Act 1999 relevant to this case are:-

"115. (1) No person is entitled to income based jobseeker's allowance under the Jobseekers Act 1995 or to –

……….

(e) income support,

……….,

under the Social Security Contributions and Benefits Act 1992 while he is a person to whom this section applies.

(2) ……….

(3) This section applies to a person subject to Immigration Control unless he falls within such category or description, or satisfies such conditions, as may be prescribed.

(4) Regulations under subsection (3) may provide for a person to be treated for prescribed purposes only as not being a person to whom this section applies.

(5) ……….  .

(6) In relation to the matters mentioned in subsection (2) (except so far as it relates to the benefits mentioned in subsection (1(f) or (g)), 'prescribed' means prescribed by regulations made by the Department.

……….".

6. The relevant provisions of the 2000 Regulations are:-

" 2. (1) For the purposes of entitlement to income-based jobseeker's allowance, income support, a social fund payment, housing benefit or council tax benefit under the Contributions and Benefits Act, as the case may be, a person falling within a category or description of persons specified in Part I of the Schedule is a person to whom section 115 of the Act does not apply.", and

"SCHEDULE

……….

……….

PART I

……….

……….

……….

……….

4. A person who is a national of a state which has ratified the European Convention on Social and Medical Assistance (done in Paris on 11^th December 1953) or a state which has ratified the Council of Europe Social Charter (signed in Turin on 18^th October 1961) and who is lawfully present in the United Kingdom.".

7. The grounds for appealing the tribunal's decision stated on behalf of the Secretary of State are that the tribunal erred in law in concluding that the claimant is "lawfully present" in the United Kingdom for the purposes of a claim to Income Support as he has only temporary admission to the United Kingdom. In Murat Kaya v. (1) Haringey London Borough Council and (2) the Secretary of State for Social Security, Court of Appeal, 1 May 2001, the Court decided that a national of Turkey, a country which has ratified the European Convention on Social and Medical Assistance, did not qualify for assistance under section 189(1)(a) of the Housing Act 1996 because she did not fall within Class (e) of the classes specified in regulation 3(1) of the Homelessness (England) Regulations 2000 because she was not lawfully present in the United Kingdom. The Court cited as its authority for that decision the House of Lords decision in the case of Bugdaycay [1987] 1 AC 514 in which the House decided that for the purposes of the Immigration Act 1971 a person who was temporarily admitted to the United Kingdom was, by virtue of section 11(1) of the 1971 Act, not lawfully present in the United Kingdom. Section 11(1) provides that:-

"A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to this Act.".

The Court of Appeal, argues the Secretary of State's representative in his statement of grounds of appeal, considered that the same logic as that applied by the House of Lords in the Bugdaycay case applies in the interpretation of the expression "lawfully present" as used in the regulations made under the Immigration and Asylum Act 1999 and the 1996 Housing Act.

8. At the time at which he was writing his submission the Secretary of State's representative did not have a transcript of the Court of Appeal's judgment in Kaya. In fact the relevant paragraph of the judgment is paragraph 27 in which Buxton, L.J., says:-

"I, for my part, see absolutely no reason not to apply that same reasoning to virtually the same wording and virtually the same concept that is to be found in Class E of regulation 3 of the 2000 Regulations. It is not to be expected as a matter of domestic law, and, as I shall shortly demonstrate, cannot be held as a matter of international law, that the same wording addressing a similar saving in respect of the State's obligations should be interpreted differently in different places.".

9. Following on that statement by the Secretary of State's representative there were further written submissions by him and by the claimant's representative. I do not set those submissions out here because the arguments for the Secretary of State and the claimant were fully rehearsed before me at an oral hearing on 20 November 2001 and in skeleton arguments provided in advance of the hearing. At the hearing Mr J. Chang of the Office of the Solicitor to the Secretary of State for Work and Pensions appeared for the Secretary of State and Mr D. Seddon, instructed by Hammersmith Law Centre, appeared for the claimant. I am grateful to both Mr Seddon and Mr Chang for their careful arguments. My decision in this case has been considerably delayed, partly because of the preliminary point which I shall mention below and partly because there were four other appeals by asylum seekers the hearing of which and the post hearing submissions in two of which I thought might reveal arguments relevant to this case. In fact nothing which takes the arguments in this case any further has emerged in the appeals in which there have been post hearing submissions and it now transpires that in the other two cases the oral hearing will not take place until later this year.
10. The preliminary point to which I refer is this. In the appeal papers before me there is a copy of a letter of 16 December 1999 written by a doctor and addressed to a firm of solicitors. The letter explains that at the time of writing the claimant had been a patient in the doctor's practice since only 5 November 1999 but that there was a medical report from a psychiatrist in Poland which stated that the claimant had been treated in hospital for hyperactivity, irritability, aggressive tendencies and was deemed a danger to others. He was diagnosed as suffering from moderate mental retardation with paranoid syndrome. He had undergone psychological assessment which confirmed his mental state and that his mental development was that of a six year old. I said at the hearing that if the claimant is as seriously mentally retarded as stated in that letter he did not have the mental capacity to instruct the conduct of his appeal himself and that a Secretary of State's appointee would be needed. I said also that if the Secretary of State made an appointment, most likely of the claimant's mother, I would follow the practice adopted by Commissioners in cases where an appeal concerning a deceased person's claim had been started before an executor or a Secretary of State's appointee had been appointed. That practice is to regard an appointment which is made before the Commissioner issues a decision as validating any procedure predating the appointment. At the close of the hearing Mr Seddon said that those instructing him would look into the matter of having somebody appointed to act on the claimant's behalf and to instruct the conduct of his appeal. In a letter of 13 February 2001, in response to a direction by me, the claimant's solicitor said that:-

"[The claimant] does not have an appointee for Social Security or other purposes.

His mother looks after his income support order book with his agreement. She generally accompanies him to the post office to cash the book and he gives the money to her to look after. He is able to understand in simple terms the effect of this in the context of his benefit claim. I have advised the Department of Work and Pensions about his mental health condition and the issue was not raised by the presenting officer who was present at the initial appeal last year.".

11. The doctor's letter was in the appeal bundle before the tribunal. The tribunal should, therefore, have considered whether or not it had jurisdiction to hear the claimant's appeal. There was clearly a doubt as to the claimant's capacity to instruct an appeal but there is nothing in the record of the tribunal's proceedings or in the statement of the reasons for the tribunal's decision to show that that matter was considered. That, to my mind, is an error in law which vitiates the tribunal's decision. Rather than render nugatory the work of Mr Seddon and Mr Chang, not to mention wasting the time which I have spent in hearing their submissions, I do not simply set aside the tribunal's decision without further comment. I shall deal with the substantive arguments which have been put to me. However, the question of the claimant's capacity to instruct the case will arise again if an application is made to me for permission to appeal my decision to the Court of Appeal. I shall not be prepared to grant permission to appeal unless either an appointment has been made or I am satisfied that the claimant has the capacity to instruct a case in the Court of Appeal. As matters stand at the moment I am not satisfied that a person with a mental age of six years, whose mother looks after his benefit order book and looks after his money and who has the ability to understand in only simple terms the significance of his signing his name on a benefit claim has the capacity to instruct an appeal in any tribunal or court.
12. In opening his case for the Secretary of State Mr Chang recounted the salient points in the history of the claimant's case. These were the claimant's arrival in the United Kingdom on 8 November 1998, his application for political asylum on the same day, his claim for Income Support for the first time on 23 November 1998, his being refused political asylum on 19 October 1999 and notification on 17 March 2000 that he was a person liable to be detained who had been given temporary admission to the United Kingdom subject to restrictions. The restrictions were that the claimant was required to reside at the address shown on the notification of temporary admission, that he might not enter employment, paid or unpaid, or engage in any business or profession and that he must report to an immigration officer at Terminal 2, Heathrow Airport on 17 March 2001. On 10 May 2000 a firm of solicitors served on the claimant's behalf an appeal against the refusal of asylum. On 11 July 2000 a further application in the claimant's name for an award of Income Support was made. There is no copy of that application on the file but I assume that it was signed by the claimant. On 20 July 2000, said Mr Chang, it was decided that the claimant was not entitled to Income Support from 11 July 2000 because he was not excepted by virtue of regulation 2(1) of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 as read with the Schedule to those Regulations from the exclusion from entitlement to Income Support enacted in section 115 of the Immigration and Asylum Act 1999. The claimant appealed to the Income Support Appeal Tribunal on the grounds that he was within the category of excepted persons described in paragraph 4 of Part I of the Schedule to the 2000 Regulations.
13. Mr Chang said that the issue in this appeal was whether or not the claimant was lawfully present in the United Kingdom for the purposes of his claim for benefit when his permission to remain in the country was only a temporary permission. The appeal tribunal's decision was, he submitted, erroneous in law. It was not disputed that the claimant was subject to immigration control. Therefore, to escape the disentitlement to Income Support enacted in section 115(1)(e) of the 1999 Act he had to show that he came within one of the categories of persons exempt from that disentitlement by the terms of the 2000 Regulations. It was not disputed that the claimant was a national of a state which has ratified the European Convention on Social and Medical Assistance("ECSMA") or the Council of Europe Social Charter. What was disputed was the lawfulness, for the purposes of the 2000 Regulations, of his presence in the United Kingdom.
14. The meaning of "lawfully present" had been considered said Mr Chang, in the case of Kaya. That case concerned a Kurdish couple. In August 1997, before the couple married, Mr Kaya had come to this country and had claimed asylum. Mrs Kaya arrived here on 14 May 2000. They married on 22 May and Mrs Kaya, claimed asylum. They were both granted temporary admission to the United Kingdom. They were evicted from the house in which they were living on 5 October 2000 and sought assistance from Haringey LBC under section 188(1) and (189(1)(a) of the Housing Act 1996 on the grounds that they were unintentionally homeless and that Mrs Kaya's pregnancy constituted a priority need for accommodation. Mr Chang referred me to paragraphs 6 to 10 of the judgment which explains that for the couple to qualify for help under the Housing Act it had to be demonstrated that Mrs Kaya was not excluded from eligibility for such help by section 185(2) of the Act which provides:-

"A person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he is in a class prescribed by regulations made by the Secretary of State.".

Regulation 3(1) of the Homelessness (England) Regulations 2000 enacts a list of classes of persons who are subject to immigration control but are prescribed as being eligible for housing assistance for the purposes of section 185(2) of the Housing Act. One of those classes is class E which reads as follows:-

"A person who is habitually resident in the Common Travel Area and who:-

(i) is a national of a State which has ratified the European Convention on Social and Medical Assistance done at Paris on 11^th December 1953 ………. and is lawfully present in the United Kingdom.".

15. Mr Chang said that the argument for the Secretary of State in the Kaya case was to be found in paragraphs 20 onwards in the judgment. That argument was that the effect of section 11 of the Immigration Act 1971 was that Mr and Mrs Kaya were not present in the United Kingdom at all. Paragraphs 26 and 27 of the judgment concludes that the Kayas were not lawfully present. The domestic law was clear and the court had followed the House of Lords reasoning in the Bugdaycay case. Section 11(1) of the 1971 Act was there because otherwise an applicant for asylum would be a criminal simply by being in the United Kingdom. Mr Chang submitted that the Kaya case was directly relevant to the instant case. The homelessness legislation was in similar terms to those of the regulations relating to immigration and asylum. The refusal to award Income Support to the claimant was in accordance with the intention of Parliament. The claimant should be supported by the voucher system. The claimant's mother had stated that she is in receipt of vouchers.
16. Mr Seddon said that he recognised that the Kaya case was relevant. Where he differed was on the submission that it was binding on the Commissioner. It was a significant hurdle for him to persuade the Commissioner not to apply the Kaya judgment but there would be equally difficult hurdles to be overcome in order to apply it. The Kaya judgment was in conflict with the judgments in Ex parte O and Ex parte Bhika [2000] 4 All ER 590. It had been given, as he would explain, per incuriam.
17. Mr Seddon referred me to paragraph 8 of the statement of the tribunal's reasons for its decision. The tribunal's was the natural interpretation of the words used in the Treaty and Charter and was correct. It was in accordance with the House of Lords judgment in the case of Cozens v. Brutus [1973] AC 854 and accorded also with the law relating to the interpretation of international treaties.
18. For the framework of immigration control under domestic law Mr Seddon referred me to the Immigration Act 1971. Section 3 provided that those who were not British citizens required leave to enter the United Kingdom and that the leave could be subject to conditions. Section 4(1) provided that leave to enter is given by immigration officers and leave to remain is given by the Secretary of State. Paragraph 2 of Schedule 2 to the Act dealt with the procedure at Immigration Control. Asylum seekers for whom an immediate decision could not be given could be detained during the process of examination and decision making or, as happened to the claimant in this case, could be temporarily admitted pending a decision. It was to the person detained or temporarily admitted that section 11 applied. Such a person was deemed not to have entered the United Kingdom notwithstanding his actual presence here. That situation could last for years. The 1971 Act included a set of provisions giving specific technical meanings to "enter" and "entered". In none of those provisions was there a reference to "presence" or "absence" from the United Kingdom. He submitted that where additional controls are being superimposed on the existing framework of control one could not apply different meanings to "enter" or "entered".
19. There was nothing in the domestic provisions, said Mr Seddon, which confirmed a concept of illegality but the immigration control legislation had provisions which created illegality and a right to imprison or deport. Section 10 of the Immigration and Asylum Act 1999 provided for administrative removal of people who had overstayed a period of temporary admission, obtained leave to remain by deception or in respect of whom directions for their removal had already been given. The people to whom that provision applied were in the United Kingdom unlawfully but none of the circumstances specified in that section subsisted in the claimant's case. The claimant had never obtained leave to remain. The other crime against immigration control was illegal entry. In R v. Governor of Pentonville Prison Ex parte Akhtar, QBD, 22 December 1992 [1993] IMMAR 44 a person who had breached the conditions on which temporary admission had been granted and who had deceived the immigration officer at the time of entry was an illegal entrant and had committed an unlawful act even if refused entry. None of that would apply in the case of the claimant. But in Akhtar the Master of the Rolls said "so long as he obeys the conditions he is not an illegal entrant;". An asylum seeker was subject to statutory provisions relating to legality but those provisions did not apply to a person who applied for asylum on entry to the country and abided by the conditions on which entry was allowed. All of the forms of illegality were criminal offences under section 24 of the 1971 Act.
20. Mr Seddon said that it therefore followed that asylum seekers in particular found themselves in prolonged periods of temporary admission. It was obvious from the facts of the case of Regina v. Uxbridge Magistrate's Court and Another Ex parte Adimi [2000] 3 WLR 434 that it was impossible for a person to obtain clearance by Immigration Control before arrival in this country. That case concerned the prosecution of an illegal entrant. At H on page 439 Simon Brown, L.J., refers to the undiminished need for Article 31 of the United Nations Convention and Protocol on the status of Refugees of 1951 and 1967 and, for refugees, the well nigh impossibility of travelling to countries of refuge without false documents. The claimant's case had to be considered in the light of the fact that there was an obligation on the State to deal with an application for asylum. On page 454 of the report of the Adimi case, at paragraph F, Mr Justice Newman quoted Lord Keith of Kinkel, in the judgment of the House of Lords in Regina v. Secretary of State for the Home Department, Ex parte Sivakumaran [1988] A.C. 958, as saying:-

"The United Kingdom having acceded to the Convention and Protocol, their provisions have for all practical purposes been incorporated into United Kingdom law.".

Mr Justice Newman was not persuaded by that. Lord Keith's dicta needed to be read with the proposition that a person was a refugee even before he was recognised as such by the country of refuge. As soon as a person fulfilled the definition of "refugee" he was one. In paragraph 35 of his judgment in the Kaya case Lord Justice Buxton said:-

"For my part, although I entirely accept the general obligation recognised in the jurisprudence of this country, that since refugee status is recognised by the courts of this country but not created by them the authorities have to consider a claim for refuge before taking a step towards expulsion, that is a long way from saying that that obligation is created or assumed in international law by the Geneva Convention to the extent of creating a particular lawfulness in a person's presence here whilst his case is being investigated.".

Refugee status was therefore, argued Mr Seddon, not created by but recognised by the country of refuge. The purpose of demonstrating that the claimant did nothing unlawful was to coincide with Mr Seddon's submission that the object of the ECSMA and the European Social Charter was to protect those in the claimant's position.

21. The principles governing the interpretation of ECSMA and the Social Charter as international treaties were, said Mr Seddon, set out in the House of Lords judgments in the cases of Regina v. Secretary of State for The Home Department, Ex parte Adan and Regina v. Same, Ex parte Aitseguer, [2001] 2 WLR which was referred to in Kaya. At D of page 153 of the report Lord Steyn refered to the need to determine the autonomous meaning of the treaty to ensure that guarantees provided by the treaty were not undermined by domestic actions. That was to say that the technical words of the 1971 Act should not govern the interpretation of ECSMA or the Social Charter. Lord Steyn pointed out in that part of his judgment that the rules governing the interpretation of Treaties were to be found in Articles 31 (general rule of interpretation) and 32 (supplementary means of interpretation) of the Vienna Convention on the Law of Treaties (1980) (Cmnd 7964). Those articles codified the existing public international law on the topic.
22. Mr Seddon spoke to the purpose of the ECSMA and the Social Charter. He referred to the first consideration specified in the preamble to the Social Charter which was:-

"Considering that the aim of the Council of Europe is the achievement of greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and of facilitating their economic and social progress, in particular by the maintenance and further realisation of human rights and fundamental freedoms;".

Mr Seddon asked which were the rights in that common heritage and referred me to the Universal Declaration of Human Rights of 1948. The second reason for the making of the declaration was stated in the preamble thereto thus:-

"Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law;".

Article 14 of the Declaration was:-

" 1. Everyone has the right to seek and to enjoy another country's asylum from persecution.

2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.".

That right to asylum, said Mr Seddon, was further developed by the United Nations Convention relating to the status of refugees. The first consideration specified in the preamble to the Convention is:-

"That the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination,".

The principle of the right to asylum is, therefore, rooted in the Universal Declaration of Human Rights.

23. Given all of that material, argued Mr Seddon, the lack of any taint of illegality affecting the claimant's presence in the United Kingdom, the Government's obligation to determine his claim for asylum, the requirement to recognise the existing right of asylum and having regard to the European Social Charter's derivation of its authority from the European Convention on Human Rights, it was inconceivable that the Social Charter excluded from its protection a person who was seeking to exercise the right to asylum conferred by the Convention. That was particularly so in the absence of any illegality in the actions of that person. The relevant provision of the Social Charter was Article 13.4:-

"To apply the provisions referred to in paragraphs 1, 2 and 3 of this Article on an equal footing with their nationals to nationals of other Contracting Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11 December 1953.".

The word "presence" is derived from a reference back to Article 1 of Section 1 of the ECSMA itself which refers to "lawful presence". The domestic legislation takes its meaning from the Social Charter and a proper interpretation of the Treaties informs the interpretation of the legislation. The issue of the standard Form SAL1 to the claimant indicated that it was the case that he had claimed asylum on arrival in this country. Otherwise he would have been issued with Form SAL2. The temporary permission to remain was on form IS96, page 1D of the appeal bundle. That permission was valid for a year and was renewable thereafter.

24. Mr Seddon developed his argument that the decision in Kaya should not be followed. Firstly, it was inconsistent with and conflicted with the decision in the O and Bhika cases. There were two issues in those cases. Those were firstly the construction of section 21(1)(A) of the National Assistance Act 1948 (of no relevance to this case) and secondly what constitutes lawful presence in the United Kingdom. On page 600 of the report at F and G Simon Brown, L.J. quoted Moses J who, in R v. Brent London BC, Ex parte D (1997) 31 HLR 10, said –

"………. Illegal entrants and illegal immigrants fall into a different category from asylum seekers. Asylum seekers have no established right to remain, but pending the determination of their claim for status of refugee, they cannot be said to be here unlawfully in the same way that an illegal entrant or overstayer could be said to be here unlawfully. They have committed no crime. ……….".

In the O and Bhika cases the Court of Appeal had to decide if that was a viable interpretation of the law. On page 603 of the report, below F, Simon Brown LJ said –

"True it is that section 24(1) of the 1948 Act refers to 'the authority in whose area the person is ordinarily resident'. Subsection (3), however, requires no more than that the applicant be in the local authority's area with an urgent need of residential accommodation.

Overriding all these arguments is to my mind the consideration I have already stressed, that section 21(1) of the 1948 Act affords the very last possibility of relief, the final hope of keeping the needy off the streets. Not even illegality should to my mind bar an applicant who otherwise qualifies for support.".

Mr Seddon submitted that the court's analysis, in the course of deciding whether illegality does bar access to support, considered the distinction between lawful presence and illegality. It was part of the reasoning process and part of the decision in the case. The court firmly placed in the category of those lawfully in the country asylum seekers who applied straightaway for asylum at the port and who had been granted temporary permission to remain. The decision applied to a statutory context in which the person, to qualify for benefit administered by the local authority, required to be in the area of the local authority. The decision, contrary to Mr Chang's argument, was not simply authority in relation to the question of legality but also authority as to the interpretation of 'presence'. If he, Mr Seddon, was wrong asylum seekers on temporary admission would fall foul of section 24 and not be entitled to assistance even although they had done nothing unlawful. Just as 'within' and 'presence' were used interchangeably in ECSMA the word 'in' in the Act had to be construed as meaning 'physically in'. That was apparent from Lady Justice Hale's opinion at page 608 of the O and Bhika report.

25. Mr Seddon argued that on the authority of the decision of the High Court in the case of the Minister of Pensions v. Higham [1948] 2KB 153 and in Colchester Estates (Carter) v. Carlton Industries PLC., [1986] 1 Ch.81 I would be entitled to follow the Court of Appeal's decisions in the O and Bhika cases rather than its decision in Kaya. In Colchester Estates Nourse J followed the general rule enunciated by Denning J in Higham that where two cases had been decided differently in courts at the same level the later decision was to be followed if in the later case the court, in arriving at its decision, had considered fully the decision in the earlier case. Kaya's case was decided later than O and Bhika but included no full consideration of the earlier case. He submitted that if Kaya has been correctly decided the decision had far reaching consequences for the operation of the Social Security, National Assistance and Immigration Control schemes.
26. Mr Seddon said that Mr Chang's main point had been to suggest that "presence", "lawful presence" and "present" for the purposes of Social Security Legislation were distinguishable from those expressions as used in the National Assistance Act. That would turn the decision in Kaya on its head because under section 11 of the Immigration Act, according to the Kaya decision, a person was not being treated as present in the United Kingdom. Therefore how could a claimant be present for the purposes of the provisions of the National Assistance Act and the British Nationality Act 1981. He referred to paragraph 26 of the transcript of the Kaya decision. The fact that it was impossible to lead a way from that decision through those legislative provisions indicated that Kaya had been wrongly decided. He had nine reasons for that submission.
27. Firstly, referring to paragraphs 22 to 26 of the skeleton arguments submitted for the claimant by Mr Simon Cox, of Counsel, Mr Seddon said that, as argued there, "entry" was a term of art in the 1971 Act and it was not possible to relate it to the concept of physical presence but that is what the Court of Appeal seemed to have attempted in Kaya.
28. Secondly, one of the requirements for naturalisation as a British citizen specified in Schedule 1 to the British Nationality Act 1981 was specified in paragraph 1(2)(a) of Schedule 1 to that act and was that the applicant for naturalisation has been in the United Kingdom for 5 years and has not been absent from the country for more than 450 days in that period. According to paragraph 26 of the Kaya judgment the applicant would not be able to satisfy that condition because he was to be treated as not present in the country at all. Also the concept of disqualifying absence was not consistent with the concept of a deemed lack of presence. The person who had temporary admission to the United Kingdom was to be treated as not in the country and absent from it during the period of qualifying residence. The rational for that was in paragraph 9 of Schedule 1 to the 1981 Act which deemed people to be absent from the country even although they were in the country. Under sub-paragraph (1)(b)(iii) of that paragraph a person detained under the immigration laws of the United Kingdom was deemed to be absent from the United Kingdom and under head (d) a person who was authorised to be detained under the immigration laws but was at large, and for that reason liable to be arrested, was deemed to be absent. Under section 11 of the 1971 Act a person detained was deemed not to have entered the United Kingdom, just like the person with temporary admission. It was clear, therefore, that if a person to whom section 11 applied was not to be treated as being in the United Kingdom for the purposes of the British Nationality Act it would not be necessary to have the Schedule's 1 provisions deeming absence from the United Kingdom. It must follow that for the purposes of the British Nationality Act a person with temporary admission was in the United Kingdom. That submission was not made in the Kaya case. It was an interpretation of statutory provisions which bore on the interpretation of "lawful presence" and showed that Kaya was decided per incuriam.
29. Mr Seddon's third reason for his assertion that Kaya was wrongly decided was drawn from the House of Lords decision in the cases of the Chief Adjudication Officer v. Wolke and Remilien v. Secretary of State for Social Security [1997] 1 WLR 1640. In that case nationals of the European Union came to the United Kingdom. They were regarded as a burden on public funds. An adjudication officer refused Income Support and the Home Office required them to leave. It was held that a person was not "required to leave" the United Kingdom by the Secretary of State so as to be a "person from abroad" for the purposes of regulation 21 of and Schedule 7 to the Income Support (General Regulations) 1987 unless he was put under an obligation to leave by the Secretary of State in the exercise of some legal power enabling him to impose that obligation. Lord Slynn dissented from the judgment, saying (page 1647 of the report at F):-

"but the exclusion from income support applies also to categories of persons whose presence in the United Kingdom would not seem to be ex facie unlawful. Thus in (e) and (f) persons granted temporary admission are excluded; as are persons whose immigration status has not been determinated by the Secretary of State.".

Lord Slynn's point was not taken by the other Law Lords. Clearly it did not carry enough weight to change the other judgments but it was a good indication that temporary admission equated to lawful presence. It could not be assumed that Lord Slynn did not have ECSMA in mind because at page 1656 of the report at A to B Lord Hoffman refers to ECSMA. The judgment in the Wolke and Remilien case was not before the Court of Appeal when it dealt with Kaya. It was not mentioned in the Secretary of State's skeleton argument and, more importantly, it was not mentioned in the arguments put by the appellants who could have been expected to rely on it. It was not mentioned in the Kaya judgment. Kaya was, therefore, wrongly decided.

30. (1) Mr Seddon's fourth reason for regarding Kaya as wrongly decided was to be found in the Income Support Scheme itself. Section 124 of the Social Security Contributions and Benefits Act 1992 provided that the claimant must be in the United Kingdom to be entitled to Income Support. Section 137(2)(a) provided for the making of regulations as to the circumstances in which a person was to be treated as in the United Kingdom or not in the United Kingdom for the purposes of section 124. If Kaya had been correctly decided and people on temporary admission to the United Kingdom were simply not here there would need to be regulations under section 137 deeming those on temporary admission to be in the United Kingdom in order for them to be entitled to benefit. There were no such regulations. Therefore, anyone with temporary admission was, on the basis of the Kaya judgment, not in the United Kingdom and not entitled to benefit. That proposition was wholly contrary to the Income Support scheme. For example, under the Persons from Abroad Regulations, as they previously stood, persons who had temporary admission were treated as persons from abroad with no applicable amounts. Regulation 21(3) would not have been needed because there were no regulations deeming the people covered by paragraph (3) to be in the United Kingdom. Also, those asylum seekers who had claimed on arrival and had been granted temporary permission had, like the claimant in this case, been given permission to remain until a decision could be made on the application for asylum. Under the Income Support Regulations they were entitled to Urgent Cases Payments until the asylum decision had been made. The regulations were amended from April 2000 but were continued transitionally for those who were covered by the earlier regulations. Again, if Kaya was correctly decided, in the absence of any regulations under section 137 deeming their presence in the United Kingdom asylum seekers awaiting a decision on their applications to the Home Office would not be in the United Kingdom for the purposes of section 124 and, contrary to the regulations as applied by the Secretary of State, would not be entitled to Income Support at all.

(2) There was, said Mr Seddon, a similar provision about a claimant's presence in Great Britain in section 113(1)(a) of the Contribution and Benefits Act 1992. That provision disqualified anyone from receiving any benefit under Part II to V of the Act while he is absent from Great Britain. The general exclusion of persons subject to immigration control from Social Security benefits was in section 115 of the Immigration and Asylum Act 1999. The benefits specified in subsection (1) of that section were all non-contributory benefits. There was no general intention in the legislation to exclude all persons subject to immigration control from entitlement to any Social Security benefit whatsoever. Parliament could have excluded those on temporary admission from entitlement to contributory benefits but had not done so and there was no such exclusion in practice. Many asylum seekers were working and paying National Insurance Contributions. If Kaya was correctly decided those on temporary admission would have to be treated as not in Great Britain and, therefore, excluded from contributory benefits by virtue of section 113(1)(a) of the 1992 Act.

31. Mr Seddon's fifth criticism of the Kaya decision was that the judgements contained no analysis of the interrelationship of the Social Charter, the European Convention on Human Rights and ECSMA. He referred to paragraph 27 of the first judgment. Therein Lord Buxton said that there was no reason not to apply the reasoning of Lord Bridge of Harwich in the Bugdaycay case to the Housing Regulations. Mr Seddon submitted that there was every reason not to apply it. He referred to page 521 of the Bugdaycay report which quotes articles 32 and 33 of the Convention. A state could expel a refugee not lawfully in its territory to any country where he will not be ill-treated (Article 33) but it could not expel a refugee lawfully in its territory to anywhere else. If every asylum seeker granted temporary admission could obtain the benefit of Article 32 there would be no real distinction between Articles 32 and 33. It would mean that there was no ability to return to a safe country those who had come here through a third country. It would drive a coach and horses through "the first safe country" principle. That matter had not been addressed in the Kaya judgment.
32. His sixth criticism of the Kaya decision Mr Seddon founded on paragraphs 29 to 31 of Lord Justice Buxton's judgment. There it could be seen that the Court was happy to adopt the House of Lords' approach to the construction of an international convention enunciated by Lord Steyn at page153D of the report on the Adan and Aitsegeur cases. However, Lord Justice Buxton said that there was no clear indication of how the broad general principles of interpretation expressed there would apply in Kaya's case. He said there was no authority on the "autonomous" meaning of the ECSMA and no settled international meaning of the term "lawfully", not merely in international but in national law. One reason why his, Mr Seddon's, analysis was not considered in the Kaya case was that the Kaya case was focused on the ECSMA rather than on the Social Charter. Turkey was a signatory to both documents so the Kayas could have put up an argument based on the Charter but almost everything in the case related to ECSMA.
33. Explaining his seventh criticism of the Kaya decision, Mr Seddon said a Committee of Independent Experts monitored the working of the European Social Charter. The Committee's reports were a body of case law and the Committee's conclusions went to the state representatives who were supposed to ensure the state's conformity with the Charter. In 1996 the Committee reviewed the operation of Article 13. Paragraph (4) of Article 13 covered those staying in the territory of a state, including refugees. Clearly a broad meaning was given to "lawfully within". Mr Seddon submitted that the reference to refugees had been extended to asylum seekers. At page 197 of the Committee's report (document 112 of the bundle) there was a consideration of the provisions made in Norway for assistance to refugees and asylum seekers. The Committee noted that Norway had extended the benefit of its act on social services to foreign nationals who were lawfully within her regional territory and waiting to be issued with residence permits. Also, stateless persons residing in Norway had access to social assistance under the same conditions as other residents. Special provisions were made for asylum seekers who did not qualify for such assistance. The Committee wanted to know what those provisions were. The implication of the Committee's interest in Norway's compliance with the Social Charter could only be consistent with the Committee having the view that asylum seekers fell within the scope of Article 13 pending admission to the country. On page 198 of the Committee's report it was noted that in Sweden a 1988 Act conferred benefits on asylum seekers which were compliant with Article 13(4). The implication of the Committee's investigation of the Swedish arrangements was that the committee was of the opinion that Article  13(4) applied to temporary admittees. In other words there was international agreement as to the meaning of lawfully present. Also the Committee's examination showed that, at least in the case of Norway and Sweden, Article 13(4) was applied to asylum seekers. That state practice was relevant as an indication of the proper interpretation of the treaty. None of those materials were before the Court in the Kaya case and Lord Justice Buxton points to the lack of it.
34. Mr Seddon referred to the judgment of the European Court of Justice in the case of The Queen v. The Secretary of State for the Home Department ex parte Gloszczuk and Gloszczuk which was issued on 27 September 2001 for his eighth reason for suggesting that I should regard the Kaya decision as having been wrongly decided. The case concerned an agreement between the European Communities and Poland about the rights of establishment of companies. Article 44(3) of the Association Agreement between the European communities and the Republic of Poland provided for equality of treatment between the companies and nationals of the member states and the companies and nationals of Poland established in the territories of the member states. Article 58(1) of the agreement provided that the domestic immigration law of the member states will not be used to nullify or impair the benefits accruing to any party under the terms of a specific provision of the agreement. Rule 322 of the Immigration Rules set out the grounds on which an application to vary leave to enter or remain in the United Kingdom was to be refused. Mr and Mrs Gloszczuk, both Polish nationals, were granted leave on 15 October 1989 and 19 January 1991 respectively to enter the United Kingdom as tourists for a period of six months. They said that they were to be in the United Kingdom for six days and four days respectively. They overstayed their period of leave. They made no application for permission to work. They did not seek to regularise their position until 1996. They were refused a variation on their leave to enter or remain on account of their having made false representations about their intentions when they arrived. The question for the Court was whether or not the Association Agreement conferred a right of establishment on persons whose presence was unlawful under domestic law. In paragraphs 70 and 75 of the Court's judgment it was stated that where the requirement of a prior request for leave to remain for the purposes of establishment in the host country had not been met the host country was in principle entitled to refuse that leave to a national of another country who sought to invoke Article 44(3) of the Association Agreement irrespective of whether the other substantive conditions laid down by the domestic legislation of the host country had been met and that a Polish national who got round the relevant national controls by falsely declaring that he was entering the host member state for the purpose of tourism placed himself outside the protection afforded to him under the Association Agreement. Mr Seddon said that it was obvious that the Gloszczuk case had not been drawn to the attention of the Appeal Court in the Kaya case.
35. The Home Office, said Mr Seddon, described as lawfully present in the United Kingdom any person who applied for leave to enter the country at the port of arrival without any illegality. That was the basis of his nineth criticism of the Kaya decision. He referred to paragraph 3.2 of the Immigration and Nationality Directorate's instruction on the handling of claims to political asylum. According to that paragraph persons who had been granted temporary admission were lawfully present in the United Kingdom. That instruction was consistent with all of the submissions which he had made. That was another piece of information which was not before the Court in the Kaya case. The indications in the Kaya judgment itself were that, had that information been available to the Court, it could have made a difference because the Court took the view that the reason for the use of such a wide term as "lawfully present" in the ECSMA was that the contracting parties had wished to reserve to themselves the right to determine conditions of entry, at least in cases not covered by the refugee Convention, and that if the parties to the ECSMA had intended anything different they would have had to say so. If that was the case, argued Mr Seddon, there was no better indication that the United Kingdom regarded asylum seekers as lawfully present than the Directorate's instructions.
36. For all those reasons, submitted Mr Seddon, the Secretary of State's appeal should be dismissed. The case was important and if I felt that I was bound by the decision in Kaya I had the power to grant leave to appeal without an application (CI/4421/00). He reminded me that the test as to whether or not leave to appeal should be granted was explained in R(DLA) 6/01.
37. Mr Chang said that he reiterated his submission that the decision in Kaya was not in conflict with that in O and Bhika. In the Kaya judgment reference was made to O and Bhika. He did not think that Mr Seddon could say that in Kaya the Court had ignored a decision which was before it. The Court had determined the case before it and its decision in Kaya should be followed. He referred to paragraph 5 of the written submission of 1 October 2001 for the Secretary of State (document 95 of the bundle). To the extent that the O and Bhika decision was relevant it was so merely as a passing reference and not as an essential of the decision. As he had said in opening the case for the Secretary of State, the effect of section 11 of the 1971 Act was simply that a person with temporary permission to remain in the United Kingdom was not committing a crime. The effect of the provision went no further than that. His submission as to the relevance of the O and Bhika case applied also to Wolke and Remilien. That case was before the Court of Appeal but no reference was made to it in the submissions. There was a reference to it in the skeleton arguments. The fact that it was not mentioned in the judgment was not to be taken as meaning that it was not considered. In this matter the claimant's case relied on a dissenting judgment. The fact that the majority of the Law Lords did not take up the point, in Lord Slynn's dissenting judgment, that the exclusion of persons from abroad from entitlement to Income Support extended to those with temporary permission to remain and to those awaiting determination of asylum appeals, should not be taken as an indication that they agreed with Lord Slynn. The Wolke and Remilien case did not concern people with temporary admissions and the issue of whether or not they were lawfully present in this country did not arise. Lord Slynn's remark was not part of the House of Lords judgment and the most that could be attributed to it was the status of a passing comment.
38. Mr Chang said that it was not the case that a distinction between lawful and presence and physical presence would turn the judgment in Kaya on its head. It was the inherent conclusion of that decision. There had to be a difference between the concept of lawful presence and the concept of physical presence otherwise there was no point in section 11 of the 1971 Act. That was a deeming provision which recognised that the person concerned was in the country but deemed him not to be. Kaya was not to be taken to mean that section 11 said that a claimant was not actually in the country. The Court was saying in Kaya that despite her actual presence in this country the claimant was deemed not to be in the country. The proper approach to the understanding of the Kaya judgment was not to apply the rules of statutory interpretation to it. The decision had to be read in context.
39. There was, said Mr Chang, a reference to the Bugdaycay decision in the Kaya judgment. It was concerned with Article 32(1) of the Geneva Convention. The argument had been put to the House of Lords (see the passage above B on page 526 of the report) that temporary admission to the United Kingdom under Schedule 2 to the 1971 Act rendered the admittee's presence lawful for the purposes of the Convention. Lord Bridge's judgment noted, at E on the same page, the concession by Counsel for one of the admittees concerned in the case that that argument, if correct, had to apply equally to any person arriving in this country at a regular port of entry and presenting himself to the immigration authorities irrespective of how he was dealt with. It followed that the effect would be to confer on any person who could establish that he had the status of a refugee from the country of his nationality, but who arrived from a third country, an indefeasible right to remain here since directing his return to the third country would involve the expulsion of "a refugee lawfully in their territory" contrary to Article 32.1. The House of Lords found that the conclusion that a temporary permission to remain meant that the admittee was lawfully in the United Kingdom to be untenable. The Court of Appeal considered itself bound by the Bugdaycay decision. The terms being considered were similar and, importantly, paragraphs 36 and 37 of Kaya endorsed the judgment of the Divisional Court of the Queens Bench Division in the case of Regina v. Central Criminal Court ex parte Bright and Others [2001] 1 WLR page 662 which referred to the continuing force of the principle of stare decessis and that decisions of the House of Lords and the Court of Appeal did not fall to be re-examined for consistency with judgments of the European Court or for susceptibility to a continuing gloss.
40. Referring to Mr Seddon's point that in Kaya the Court was unaware of any guidance as to the meaning internationally of "lawfully" because the focus was on the ECSMA rather than on the Social Charter, Mr Chang said that nowhere in any of the materials suggested as a guide to the meaning of that expression, and certainly not in Article 13(4) of the Social Charter, was there any specification of the means by which the signatory states have to fulfil their obligations. A grant of Income Support was not the only way in which the United Kingdom could decide to ensure the effectiveness of the Article 13 right to assistance. As he had already submitted, the United Kingdom has provided assistance to asylum seekers through the voucher system and, in this particular case, the claimant's mother received vouchers. Therefore, the materials referred to were relevant only if Income Support was the only provision for asylum seekers which the United Kingdom could make. At page 214 of the report of the Committee of Independent Experts (document 135 of the appeal bundle) what was being said by the committee was that the United Kingdom had a choice of method for the provision of assistance.
41. Mr Chang said that in paragraph 31 of Kaya the Court asked why the ECSMA employed such a wide term as "lawfully" and said itself that the obvious explanation was that well before any concepts such as community citizenship and membership of the European Union were available to them the contracting parties had wished to reserve to themselves the right to determine conditions of entry, at least in cases not covered by the Refugee Convention. Mr Chang submitted that the ECSMA did not set out any rules as to entry to a host country. It did not affect the interpretation of section 11 of the 1971 Act. In paragraph 33 of Kaya the Court of Appeal dealt with the argument before it which was that under the ECSMA they would have to look at the fact that the claimant was physically in the United Kingdom and the further necessary element of lawfulness was that he had been allowed into the country in circumstances under which he broke no law. The Court of Appeal rejected that argument and said that section 11 was a device to prevent an admittee from being rendered a criminal by virtue of his presence in the United Kingdom. Therefore section 11 went to the lawfulness of the admittee's presence. That, Mr Chang submitted, was the correct approach and there was a distinction between being physically present and being lawfully present in the country.
42. Referring to paragraph 35 of the Kaya judgment Mr Chang said that Mr Seddon had argued for two different approaches to the terms of the Geneva Convention and the ECSMA. However, what the Court of Appeal had said about stare decessis was relevant. The terms of the two instruments had been drafted in a very similar manner and the Court of Appeal was therefore bound by the House of Lords decision in Bugdaycay. The Gloszczuk decision did not assist the claimant. It would not have assisted the claimant in Kaya had it been before the Court of Appeal in that case. It suffered from the same lack of relevance to the case in issue as did the Wolke and Remilien case. The National Immigration Directorate's Guide did not assist the claimant's case. All that the paragraph in the guide relied on by Mr Seddon meant was that a person granted temporary admission was not committing a crime by his presence in the United Kingdom and the guidance did not amount to an explanation of what was meant by "lawfully present" in relation to section 11.
43. Mr Seddon said that for the claimant's case to succeed he did not need to say that the United Kingdom was in breach of the Social Charter. The relevance of the Charter was simply that the test of lawful presence had been taken from the Charter and the ECSMA. It was relevant to the interpretation of regulation 2 of the Immigration and Asylum Regulations that there was under the Charter material from which the regulations were taken.
44. I have considered Mr Seddon's detailed arguments on behalf of the claimant carefully and have come to the conclusion that they fail on a number of short points. Firstly, although it would be open to Counsel in the Court of Appeal to argue, by reference to the Higham and the Colchester Estates cases, that the Court should follow its decision in the O and Bhika cases in preference to its decision in Kaya it is not open to me to say that in the Kaya case the Court misdirected itself through not having considered the O and Bhika case or not having had addressed to it the argument put in the earlier case. That would amount to my saying that the Court of Appeal had decided Kaya wrongly and it is not open to me to do that (Lane v. Willis [1972] 1 All ER 430).
45. In any case, I do not think that the Court of Appeal's decision in Kaya is wrong. The Court applied the reasoning of the House of Lords in the Bugdaycay case, as expressed by Lord Bridge of Harwich at pages 525H to 526G, to arrive at its conclusion that the deeming provision of section 11(1) of the Immigration Act 1971 rendered untenable the argument that an asylum seeker with temporary permission to remain in this country pending the determination of his appeal against refusal of leave to enter is lawfully present in this country. Further, I do not think that the decision in the O and Bhika case would have been in point in this appeal even if the Kaya case had not been decided after it. The ratio of the O and Bhika decision is that the illegality of a claimant's presence in the United Kingdom is no bar to his entitlement to assistance under section 21(1) of the National Assistance Act 1948 which is the last protection against destitution for any person who is excluded from all other forms of assistance. There is nothing in the O and Bhika judgments to suggest that such exclusion from all other benefits is illegal or contrary to any of the treaties or conventions on which Mr Seddon has relied in argument. Indeed, in the last paragraph of her judgment in that case Hale L J, having said that the task of deciding upon a refugee's need for health, education or social services should be left to the provider of those services and the task of deciding whether or not a person should be allowed to remain in the United Kingdom to take advantage of those services should be left to the immigration authorities, went on to say that her opinion was subject to:-

"………. the power of Parliament expressly to limit eligibility to those services where eligibility has previously depended solely on need. That is what Parliament has now done in the 1999 Act. Significantly, Parliament might have gone even further in denying such services completely, but chose to limit that denial to those whose need arose 'solely' from destitution.".

That passage from the judgment refers to the effect of section 116 of the 1999 Act on section 21(1) of the 1948 Act but what is said is equally applicable to Parliament's right to restrict entitlement to Income Support under the Social Security Contributions and Benefits Act 1992. In saying that I am not forgetting that in R v. Secretary of State for Social Security, ex parte JCWI Simon Brown L J, in the leading judgment of the majority of the Court, described the effect of the exclusion of in country asylum seekers from Income Support by the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 as rendering nugatory the appeal rights conferred on asylum seekers by the Asylum and Immigration Appeals Act 1993. However, I do not think that too much significance should be given to the use of the word "nugatory" in that judgment. The ratio of the Court's decision was that the 1996 regulations which were purported to be made under the Social Security Contributions and Benefits Act 1992 were ultra vires of the minister's powers under that act because the denial of Urgent Cases payments to all asylum seekers seriously impeded the recourse of asylum seekers to the appeal rights conferred on them by the 1993 Act. However, an asylum seeker who qualified for no other form of public assistance could apply for assistance under the 1948 Act and in his judgment Lord Justice Brown acknowledged that the Government was entitled to place restrictions on the level and method of support given to asylum seekers and could, as the Governments of other countries had done, restrict that assistance to the provision of shelter and necessary goods or vouchers for the purchase of such goods. In the course of his argument before me Mr Chang made the point that in this case the claimant's mother is supported in that way. In my view, therefore, section 115 of the 1999 Act and regulation 2 of the 2000 Regulations are not, in principle, contrary to any of the United Kingdom's obligations to asylum seekers under any of the treaties or conventions referred to by Mr Seddon.

46. A further reason for rejecting Mr Seddon's argument that the claimant should, despite his undetermined refugee status, be treated as lawfully present in the United Kingdom is this. None of the judgments in the cases cited are exhaustive of the meanings which may legitimately be attributed to what Buxton L J describes as the "notoriously slippery expression 'lawfully'". It is not, as has been acknowledged in those judgments, limited to non-criminality. Under the Immigration Act 1971 a person who enters the United Kingdom without permission from an immigration officer or who obtains that permission by deception has breached the fundamental provision of that Act which is that anybody without British nationality requires permission to enter the United Kingdom. If such a person does enter without that permission his presence in the country is unlawful because it is in breach of the requirement to obtain permission and it would be unlawful even if the 1971 Act did not provide that unpermitted entry is a punishable offence. The asylum seeker who has been given temporary permission to enter and remain is, as stated in the judgments in Bugdaycay and Kaya, not lawfully present in the United Kingdom because he is by virtue of section 11(1) of the 1971 Act, to protect him from the consequences of having entered without permission, deemed not to have entered the country at all. As he is not present he cannot be lawfully present. In addition to that, however, if a claimed need for asylum is the applicant's justification for entry to the United Kingdom it is only if that claim is genuine that his presence in the United Kingdom will be lawful. The genuiness of the claim is, as Hale LJ and others have said, to be determined by the immigration authorities. If the immigration officer has to grant the claimant temporary leave to enter while he investigates the genuineness of the application or pending determination of the applicant's appeal against a refusal of permission, the claimant's presence in the United Kingdom will not be lawful because until the completion of the immigration officer's inquiries or the determination of the appeal the propriety for the purposes of the 1971 Act of the applicant's presence in the country will not have been established. In that state of affairs the applicant's presence in the country cannot be lawful, because its lawfulness is, as yet, inchoate and would be so even if that lawfulness fell to be decided only by reference to the treaties and conventions referred to above.
47. For the reasons given in paragraph 11 above the Secretary of State's appeal succeeds and had it not succeeded for that reason would have succeeded for the reasons given in paragraphs 44 to 46 above. My decision is in paragraph 1 above.

(Signed) R J C Angus

Commissioner

(Date) 10 October 2002