UK Social Security and Child Support Commissioners' Decisions

Shah v. Secretary of State for Social Security [2002] UKSSCSC CIS_6608_1999 (20 February 2002)

 


R(IS) 2/02

(Shah v. Secretary of State for Social Security [2002] EWCA Civ 285)

Mr. E. Jacobs CIS/6608/1999
18.12.00

CA (Pill and Mummery LJJ, and Hale LJ)

20.2.02

Applicable amount – person from abroad – whether sponsor's undertaking relates to grant of leave on re-entry to the United Kingdom – whether Social Security (Persons From Abroad) (Miscellaneous Amendments) Regulations 1996 ultra vires

The claimant was given leave to enter the United Kingdom as a visitor in 1993. His nephew subsequently signed a sponsor's undertaking to be responsible for the claimant's maintenance and accommodation. The claimant was given indefinite leave to remain in 1994. He left the United Kingdom in 1995. In 1996 the Social Security (Persons From Abroad) (Miscellaneous Amendments) Regulations 1996 implemented a change of Government policy aimed at excluding people covered by sponsorship undertakings from income support. This was achieved by prescibing the applicable amount for "persons from abroad" as nil for a period of 5 years. Soon after that the claimant returned to the United Kingdom and was given leave to enter as a returning resident. He also left for a short time in 1997, and again returned and was given leave to enter under the same terms. He then made the first of three claims for income support. They were all rejected by an adjudication officer on the basis that the 5-year period had not elapsed, and the claimant's appeal to a tribunal was dismissed. The claimant appealed to the Commissioner, who decided inter alia that leave granted to enter the United Kingdom under paragraph 18 of the Immigration Rules is fresh leave, reflecting the fact that the immigrant has previously been granted indefinite leave to enter or remain in the United Kingdom. The sponsor's undertaking was a continuous one, and it applied to leave granted under paragraph 18. The Commissioner also decided that the amendments made by the 1996 Regulations were authorised by sections 135(1) and (2), and 175(3)(a) of the Social Security Contributions and Benefits Act 1992. The claimant appealed to the Court of Appeal.

Held, dismissing the appeal, that:

this particular undertaking is offered by the sponsor for the benefit of the immigrant and it should be construed in the light of the immigration scheme as a whole;

the Commissioner was right to reject a strict approach to construction when deciding that the undertaking was a continuing one, which related to grant of leave on the claimant's subsequent return to the United Kingdom;

the the use of the word 'upon an undertaking' in regulation 21(3)(i) of the Income Support (General) Regulations 1987 is to be construed so that the leave granted on the claimant's return to the United Kingdom was on the basis of the undertaking;

section 135(2) of the Social Security Contributions and Benefits Act 1992 specifically permits an applicable amount of nil to be prescribed, so it is not arguable that the use of that enabling power in the Social Security (Persons From Abroad) (Miscellaneous Amendments) Regulations 1996 renders those Regulations ultra vires.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Decisions:

CIS/1077/1999

1. My decision is as follows. It is given under section 14(8)(a)(i) of the Social Security Act 1998.
2. .1 The decision of the Whittington House social security appeal tribunal held on 13 March 1998 is erroneous in point of law.
3. .2 Accordingly, I set it aside and, as I can do so without making fresh or further findings of fact, I give the decision that the tribunal should have given.
4. .3 My decision is to confirm the decision of the adjudication officer that was the subject of the appeal to the social security appeal tribunal.

CIS/6608/1999

5. .4 My decision is that the decision of the Birmingham social security appeal tribunal held on 30 September 1998 is not erroneous in point of law.

Reservation of determination of entitlement to damages for breach of Convention right under Article 6(1)

6. .5 With the agreement of the parties to both appeals, I reserve to myself or to another Commissioner the issue of whether the claimants are entitled to damages for breach of their Convention right to a fair hearing under Article 6(1) by reason of the delay in the handling of their cases or otherwise, if a Commissioner is held to have jurisdiction over this issue.

The issues arising for decision

7. These appeals raise four sets of issues. All concern the limitations imposed by immigration law and social security law on access by immigrants to public funds. They are dealt with in separate appendices:

Appendix A Immigration law from paragraph 29

Appendix B Transitional protection from paragraph 86

Appendix C Validity from paragraph 128

Appendix D Human rights from paragraph 152.

The facts of the cases

CIS/1077/1999

8. In this case, the claimant entered the United Kingdom in November 1993.
9. He was given limited leave. Conditions could have been imposed on the limited leave under the authority of section 3(1) of the Immigration Act 1971. However, I do not know what conditions, if any, were imposed.
10. Later, on 21 June 1994, the claimant was granted indefinite leave to remain in the United Kingdom by the Secretary of State acting through the Immigration and Nationality Directorate of the Home Office. That leave was not, and could not be, subject to any condition. There is no statutory authority for attaching conditions to indefinite leave; section 3(1) of the Immigration Act applies only to limited leave. The claimant's daughter was asked to give, and on 19 May 1994 gave, an undertaking in pursuance of the Immigration Rules.
11. The relevant parts of the undertaking by the claimant's daughter are paragraphs 2 and 3. They are in the then standard form and read:

'2. I [the sponsor] hereby undertake that if [the claimant] is granted leave to enter or remain in the United Kingdom I shall be responsible for his/her maintenance and accommodation in the United Kingdom throughout the period of that leave and any variation of it.

'3. I understand that this undertaking shall be made available to the Department of Health and Social Security in the United Kingdom who may take appropriate steps to recover from me the cost of any public funds paid to or in respect of the person who is the subject of this undertaking.'

Paragraph 3 refers to the powers of prosecution and recovery under sections 105 and 106 of the Social Security Administration Act 1992.

12. The claimant was awarded income support from 5 May 1995. It was paid until 17 July 1997, despite a period of absence in Turkey. The award was terminated on review with effect from 20 December 1996.
13. The claimant made a fresh claim for income support on 11 August 1997. His sponsor had become unemployed and unable to maintain him. The adjudication officer decided that the claimant was a person from abroad, with the result that the applicable amount used to calculate his entitlement to income support was nil. The result was that he was not entitled to income support and the claim was refused.
14. The claimant appealed against that decision, but the tribunal confirmed the refusal of the claim.
15. At the first oral hearing, Ms. Bergmann conceded on behalf of the Secretary of State that the decision of the tribunal was erroneous in law in that (a) it had wrongly decided that the claimant's indefinite leave to remain had not lapsed when he left the common travel area and (b) it had not properly considered the definition of 'person from abroad'. The oral hearings of this appeal were conducted on the basis that the decision was agreed to be wrong in law and the argument concentrated on how the law should have been interpreted and applied.
16. The claimant has now been awarded income support. That award takes place from the earliest date to which the claimant would be entitled under my decision, and possibly from an earlier date. A list of his absences from the United Kingdom is at page 105.

CIS/6608/1999

17. In this case, the claimant entered the United Kingdom in February 1993.
18. I assume that he was at first given limited leave. Conditions could have been imposed on the limited leave under the authority of section 3(1) of the Immigration Act. However, I do not know what conditions, if any, were imposed.
19. I do know that on 16 June 1994, the claimant was granted indefinite leave to remain in the United Kingdom by the Secretary of State acting through the Immigration and Nationality Directorate of the Home Office. As in CIS/1077/1999, that leave was not, and could not be, subject to any condition. The claimant's nephew was asked to give, and on 6 December 1993 gave, an undertaking in pursuance of the Immigration Rules. The relevant parts of the undertaking are the same as in CIS/1077/1999.
20. The claimant was in receipt of income support at some time in 1995, but on 4 February 1996 he was not receiving income support and had no claim outstanding. The evidence is a little uncertain, but I have dealt with the case on the assumption that he did receive income support in 1995, which is to the claimant's advantage.
21. The claimant made fresh claims for income support in 1997 and 1998, which were considered together. The claimant's sponsor had fallen on hard times and there is evidence that the claimant may have been subjected to domestic violence. The adjudication officer decided that the claimant was a person from abroad, with the result that the applicable amount used to calculate his entitlement to income support was nil. The result was that he was not entitled to income support and the claims were refused.
22. The claimant appealed against that decision, but the tribunal confirmed the refusal of the claims.
23. The claimant has now been awarded income support. There is some evidence of his absences, but I do not have a precise list.
24. The Secretary of State did not concede in this case that the tribunal's decision was erroneous in law. Mr. Cox accepted that if his arguments were rejected, the appropriate decision was that the tribunal's decision was not wrong in law.

The oral hearings

25. I directed an oral hearing of the appeal in CIS/1077/1999. The first hearing was held in London on 10 March 2000. The claimant did not attend, but was represented by Mr. S Cockain of the North Kensington Law Centre. The Secretary of State was represented by Ms. V. Bergmann of the Office of the Solicitor to the Departments of Health and Social Security. At the end of this hearing, Mr. Cockain agreed to provide a list of the dates when the claimant had been out of the country and I gave Ms. Bergmann a chance to make further written submissions on specific issues. Mr. Cockain commented in writing on those submissions. In view of the written submissions, I directed that the oral hearing be resumed. I provided the representatives with a draft decision setting out my provisional views in order to identify issues that were in dispute and to focus discussion.
26. In the meantime, a Legal Officer to the Commissioners had directed an oral hearing of the appeal in CIS/6608/1999. It was listed before Mr. Commissioner Lloyd-Davies, but when it was discovered that I was dealing with similar issues in CIS/1077/1999, he released the case to me. The hearing took place in London on 13 October 2000. The claimant was represented by Mr. S. Cox of counsel, instructed by Eric Bowes and Co., Solicitors. The Secretary of State was represented by Mr. S. Cooper of the Office of the Solicitor to the Departments of Health and Social Security.
27. The oral hearing in CIS/1077/1999 was resumed on 18 October 2000. Mr. Cockain again represented the claimant. However, the Secretary of State was represented by Mr. S. Cooper.
28. At this stage, I agreed to reach a conclusion on the immigration law issues. Depending on that conclusion other issues might or might not arise. On 20 October 2000, I told the parties that I had decided the immigration issues adversely to the claimants. As a result, other issues arose and the oral hearings were resumed.
29. They were held together at the Lands Tribunal in London on 11 December 2000. Mr. Cox and Mr. Cockain represented the claimants and Mr. Cooper represented the Secretary of State.
30. I am grateful to all the representatives who have appeared before me in these appeals for their written submissions and oral arguments.
31. I have set out the arguments on the immigration issues in some detail in Appendix A. They were made at different hearings by different representatives and Mr. Cockain's were entirely oral. The arguments on the other issues were made with all parties present at the same time and their gist appears from the skeletons provided in advance by Mr. Cox and Mr. Cooper. As those arguments are more readily available should they be relevant on appeal, I have concentrated on my conclusions without setting out the details of all the arguments presented and the various shifts in those arguments that took place as the discussion progressed.

Conclusions

32. My conclusions on the various issues as they affect the outcome of the claimant's appeals are set out in

Appendix A paragraph 85

Appendix B paragraphs 126 and 127

Appendix C paragraph 151

Appendix D paragraphs 169 to 172.

33. The tribunal's decision in CIS/1077/1999 was wrong in law. The result of my conclusions is that, although the tribunal's reasoning was defective, the tribunal came to the correct result. In the case of CIS/6608/1999, the tribunal's decision was not wrong in law.

Date: 18 December 2000 (signed) Edward Jacobs

Commissioner

APPENDIX A

Immigration law

Immigration law

Access to public funds

34. Quotations from, and references to, the Immigration Rules are to the current Rules. Some of the actions in these cases may have been taken under previous Rules, but it was accepted that there was no material difference between the present and former Rules for the purposes of these cases.
35. Immigration law limits access by immigrants to public funds in three ways.
36. .1 It may be a requirement that must be satisfied before leave is granted that the immigrant 'can, and will, be maintained and accommodated adequately, together with any dependants, without recourse to public funds in accommodation which the sponsor owns or occupies exclusively'. A requirement is a matter on which the immigration officer or Secretary of State has to be satisfied before leave is granted. It does not of itself mean that leave is conditional upon the requirement continuing to be satisfied, although the same matter may be made the subject of a condition or an undertaking.
37. .2 It may be a condition attached to limited leave to enter or remain in the United Kingdom that the immigrant 'maintain and accommodate himself, and any dependants of his, without recourse to public funds': see section 3(1)(c)(ii) of the Immigration Act 1971 as amended by the Asylum and Immigration Act 1996 (section 12(1) and paragraph 1(1) of Schedule 2). A condition attached to leave applies to and affects the immigrant personally.
38. .3 Leave to enter the United Kingdom will normally be refused if 'a sponsor of the person seeking leave to enter the United Kingdom [refuses] to give, if requested to do so, an undertaking in writing to be responsible for that person's maintenance and accommodation for the period of any leave granted': see paragraphs 320(14) and 322(6) of the Immigration Rules. Provision for an undertaking by a sponsor is made by paragraph 35 of the Rules. An undertaking applies between the sponsor and the Secretary of State. The immigrant is not a party to the undertaking.

Leave to enter after leaving the common travel area

39. Leave lapses if the immigrant leaves the common travel area and needs leave to enter the United Kingdom on return: see section 3(4) of the Immigration Act. That provision is plain in its terms and I can see no reason to give it any different interpretation.
40. The Immigration Act has been amended by the Immigration and Asylum Act 1999, which inserts sections 3A and 3B. These new sections authorise the making of provision for leave not to lapse when a person leaves the common travel area: sections 3A(2)(d) and 3B(2)(c). Article 13 of the Immigration (Leave to Enter and Remain) Order 2000 has been made under the authority of these amendments and came into force on 30 July 2000. That does not affect this case. However, the amendments would not have been necessary if the grant of leave somehow survived departure from the common travel area. This is confirmed by the explanatory notes to the 1999 Act, which were produced by Mr. Cockain.
41. In these cases, both the claimants left the common travel area. On return, they needed leave to enter the United Kingdom, as they did not come within any of the exceptions that might apply. Leave to enter was granted by an immigration officer. The leave was indefinite.
42. On return to the United Kingdom from outside the common travel area, paragraph 18 of the Immigration Rules applies. It provides that a person seeking leave to enter as a returning resident may be admitted if the immigration officer is satisfied that the person

'(i) had indefinite leave to enter or remain in the United Kingdom when he last left; and

(ii) has not been away from the United Kingdom for more than 2 years; and

(iii) did not receive assistance from public funds towards the cost of leaving the United Kingdom; and

(iv) now seeks admission for the purpose of settlement.'

43. Ms. Bergmann argued that leave to enter that is granted under paragraph 18 is in some way a continuation of leave previously granted. This is the view taken in the Social Security Decision Makers Guide. Note 3 to paragraph 071896 in Volume 7 reads:

'The five year period is not broken by absences that do not cause the person to lose their indefinite leave, ie two years or less.'

44. Ms. Bergmann put her argument into writing like this:

'If leave to enter is granted as a returning resident, conditional upon the indefinite leave to remain which was pursuant to an undertaking made within the immigration rules then each entry continues to be bound by the undertaking. The leave granted as a returning resident is not a new status, it is leave granted conditionally upon, amongst other things (another of which is that the person has not been absent for more than two years), the original leave. Another way of putting it is that although it is accepted that it is not all the same leave it is leave under the same conditions. This is consistent with the approach of Commissioner Angus. That being said, the authorities do have some discretion to grant entry after an absence of more than two years and in such a case the person entering would still remain within regulation 21(3)(i) as a returning resident with indefinite leave pursuant to an undertaking.'

The reference to Commissioner Angus is to his decisions in CIS/3955/1997 and CIS/4609/1997.

45. In support of this argument, Ms. Bergmann produced evidence provided for another case by the Immigration and Nationality Directorate of the Home Office. It reads:

'Paragraph 18 of HC395 is a general provision for the admission of persons who had indefinite leave to remain (ILR) in the UK when they left and who are returning to resume their residence within two years of their embarkation.

'Leave to enter under paragraph 18 is not a fresh grant of indefinite leave. The applicant must satisfy the Immigration Officer at the port of entry that he has previously been granted indefinite leave and that he is seeking admission to resume his residence in the UK i.e. the indefinite leave already granted.

'With regard to the passport stamps, ... normally, on admission to the UK as a returning resident, the passport would be endorsed with an open date stamp. If the applicant produced a new passport and, amongst other things, satisfactory evidence that he had ILR when he left, then it would be endorsed with indefinite leave to enter. Again this would not be a fresh grant of leave but would serve to transfer the original grant of indefinite leave to his new document.'

46. With respect to Ms. Bergmann, her argument is confused. At least, the terms in which it is expressed are confused. First, indefinite leave is not, and cannot be, conditional on anything for the simple reason that there is no statutory authority that permits conditions to be imposed on this category of leave. Second, by relating the continuing effect of the undertaking to the 'conditional' nature of the leave granted on return, Ms. Bergmann confuses conditions and undertakings. A condition is imposed on the immigrant and affects the relationship between the immigrant and the State. An undertaking is made between the sponsor and the State; the immigrant, although affected by the undertaking, is not a party to it.
47. I accept the evidence of the Immigration and Nationality Directorate as correctly stating how the officials of the Directorate see the operation of paragraph 18 of the Immigration Rules. However, I am concerned with the law rather than with how it is understood by the officials. As a statement of law, the evidence is defective. First, it is not worded in the terms of paragraph 18, referring as it does to resumption of residence rather than to settlement, although the Directorate's instructions (produced by Mr. Cockain) also equate residence and settlement. Second, the grant of leave is a fresh grant, because the leave previously granted has lapsed. This evidence is obviously concerned with the practical operation of paragraph 18 and with the evidence of indefinite leave that is provided by the stamps in an immigrant's passport.
48. My understanding and interpretation of section 3(4) of the Immigration Act and paragraph 18 of the Rules is this. Leave granted under paragraph 18 is fresh leave. That paragraph is a practical provision reflecting the fact that the immigrant has previously been granted indefinite leave to enter or remain in the United Kingdom. This makes it unnecessary for an immigrant to be subjected to as full an examination as would otherwise be required. Paragraph 18 allows the immigration officer to concentrate on proof of the previous grant of indefinite leave and on any relevant changes that might make the case no longer an appropriate one for indefinite leave, or even for leave at all. The writer of the Decision Makers Guide has misunderstood immigration law on this point.

A new status?

49. Both Mr. Cockain and at the first hearing Ms. Bergmann also referred to paragraph 18 as creating a new or special status of 'returning resident'. The same point was made by Mr. Cox. On this basis, leave to enter could only be refused under the terms of paragraph 18 or under the general grounds for refusal of leave in Part 9 of the Rules. The effect of this argument is that an Immigration Officer does not have a residual discretion to refuse leave on the ground that one of the original requirements for the grant of indefinite leave (specifically the access to public funds requirement) is no longer satisfied.
50. It is not necessary to deal with this argument, as it is not relevant to the determination of these cases in view of my conclusion on the interpretation of the undertakings given by the sponsors and their operation. However, I note the three points.
51. First, it is arguable that the attempted entry by a sponsored immigrant otherwise than under the sponsor's undertaking, and not for any other purpose under the Rules, would justify refusal of leave to enter under paragraph 320(1) of the Rules, which permits refusal if 'entry is being sought for a purpose not covered by these Rules'.
52. Second, even if I am wrong about paragraph 320(1), the lack of a provision may reflect the continuing effect of the undertaking.
53. Third, even if paragraph 18 does not recognise a new or special status, I accept that it is inherent within it that there is an element of practical continuity in the claimant's immigration status. Its operation is based on the assumption that at some time the immigrant has been granted leave under the Immigration Rules and limits the extent of the examination of a person subject to immigration control.

Did the undertaking apply to the new grant of leave?

54. Mr. Cockain argued that the undertaking by the sponsor did not apply to the leave to enter that was granted on the claimant's return to the United Kingdom. He referred to the wording of paragraph 2 of the undertaking, arguing that it only referred to the leave (or a variation of it) that was granted around the time that the undertaking was given.
55. My conclusion is that the undertaking was a continuing one and it applied to leave granted under paragraph 18. The terms of the undertaking are very wide, but clear. They are not limited to a particular application for leave, to a particular grant of leave or to a particular point or period in time. On its wording, the undertaking applies afresh each time leave is granted. Although the analogy is not entirely apt, it is like a standing or continuing offer to make a contract that remains in force to be accepted time and again until it is withdrawn.
56. Mr. Cox argued that the undertaking should be given a narrow interpretation, as a breach could give rise to criminal liability. I do not consider it appropriate to adopt a narrow interpretation for four reasons.
57. First, on my reading of the undertaking, it is only open to one meaning.
58. Second, if on a narrow reading the undertaking were not a continuing one, it would produce this strange result. An immigrant could render the undertaking redundant by leaving the common travel area for a short time, for example on a day's shopping trip to Calais. That would prevent any further reliance on the undertaking by the Secretary of State and take the claimant outside the definition of a 'person from abroad' in income support law. It would be astonishing if the undertaking could be so easily evaded. It may be appropriate to adopt a narrow interpretation of an undertaking that could lead to criminal liability, but that approach should not be taken to a point which produces an absurd result. I also find confirmation for my interpretation of the undertaking that this result is avoided.
59. Third, sections 105 and 106 of the Social Security Administration Act 1992 give power for the prosecution of, and recovery of the amount of benefit from, a sponsor who fails to maintain a claimant under an undertaking with the result that the claimant becomes entitled to benefit. These sections contain sufficient protections for the sponsor. Further protection by a narrow interpretation of the undertaking is not necessary.
60. Fourth, I accept Mr. Cooper's argument that a narrow interpretation of the undertaking is not appropriate. The interpretation approach relied on by Mr. Cox is appropriate to criminal statutes. The undertaking is not a statute and does not itself create criminal liability.

Social security law

Access to public funds

61. Social security law limits access by immigrants to public funds in two ways.
62. .1 An immigrant claimant may be a person from abroad as defined in regulation 21(3) of the Income Support (General) Regulations 1987. The significance of classifying a claimant as a 'person from abroad' is that the applicable amount used to calculate the amount of any entitlement to income support is nil (see paragraph 17 of Schedule 7 to those Regulations), thereby depriving the claimant of any entitlement to that benefit.
63. .2 The effect of classification as a person from abroad is mitigated in some cases by allowing a limited urgent cases payment to a claimant whose entitlement would otherwise be nil. See Part VI of the Income Support (General) Regulations 1987.
64. The relevant definition of person from abroad is contained in regulation 21(3)(i):

'"person from abroad" means a person, who––

(i) has been given leave to enter, or to remain in, the United Kingdom by the Secretary of State upon an undertaking given by another person or persons in writing in pursuance of immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation; and he has not been resident in the United Kingdom for a period of at least 5 years beginning from the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later'.

65. A claimant may qualify for an urgent cases payment if the sponsor has died. Regulation 70(3)(c) provides for a payment

'to a person from abroad within the meaning of regulation 21(3) (special cases) who––

(c) is a person to whom sub-paragraph (i) of that definition (sponsored immigrant) applies and the person or persons who gave the undertaking to provide for his maintenance and accommodation has, or as the case may be have, died'.

As far as I know, the claimants' sponsors in these cases are alive.

The tenses in regulation 21(3)(i)

66. Regulation 21(3) uses a variety of tenses in different provisions. My understanding of the tenses used is this.
67. It would not be appropriate to refer to a claimant who 'has leave upon an undertaking', as that would come very close to suggesting that the leave was conditional upon the undertaking, which it could not be. The undertaking is linked not to the leave but to the granting of leave. That is how the undertaking is worded – it comes into operation if leave is given. So, the provision had to relate to the giving of leave rather than to its existence. As the granting of leave is an event rather than a continuing state of affairs, it is inevitable that a past tense is used.
68. Although the granting of leave is an event, the use of 'has' rather than 'was' or 'had' captures the notion that the immigrant's leave, which derives from the grant, is still founded on the undertaking.

Leave to enter and the undertaking

69. In each case, the claimant's sponsor gave an undertaking in pursuance of the Immigration Rules. The claimant was granted indefinite leave to remain in the United Kingdom. That leave was given upon that undertaking. On the claimant's return, he was granted indefinite leave to enter the United Kingdom.
70. On the basis of my analysis, the undertaking applied to the indefinite leave to enter granted to the claimant on his return.

Was leave 'given ... by the Secretary of State'?

71. Indefinite leave to remain is granted by the Secretary of State. However, indefinite leave to enter is granted by an Immigration Officer. The definition of 'person from abroad' would have been better drafted if it had reflected this division of responsibility. However, that does not affect the interpretation of the sub-paragraph (i) of the definition. If it were read literally, the words 'leave to enter' would be redundant, as leave would not be granted by the Secretary of State. This would be a random and irrational distinction between claimants according to whether the indefinite leave granted was leave to enter or leave to remain. The provision must be interpreted to include leave to enter granted by an Immigration Officer. No doubt that Officer acts on behalf of the Secretary of State, although I do not know of any statutory provision to that effect.

Was leave 'given ... upon an undertaking'?

72. Yes, it was.
73. It is very difficult to capture precisely in words the relationship between the grant of leave, the leave itself and the undertaking. Regulation 21(3)(i) uses 'upon'. That is a vague word of wide scope. I do not consider it appropriate to give it a meaning that undermines the operation of the provision. In this context, it means that when leave was granted an undertaking was in operation in respect of the claimant. In those circumstances, the undertaking 'covered' the grant of leave which was 'supported by' it. It is not necessary for the officer to know of the undertaking or to rely on it when granting leave. The undertaking is a continuing one and it operates automatically each time leave is granted. There is no need for there to be a conscious link, present to the mind of the Immigration Officer, between the undertaking and the giving of leave.
74. So, each claimant's authority to reside in the United Kingdom at the date of his claim for income support was given upon his sponsor's undertaking.
75. Mr. Cockain and Mr. Cox argued that the claimants were granted leave on entry because the requirements of paragraph 18 of the Immigration Rules were satisfied, not because of the undertaking. That may be correct, but if I am correct so far, it is irrelevant. The fact that the Immigration Officer's investigations are limited by paragraph 18 does not mean that leave given by the Officer was not granted 'upon' the undertaking.
76. Both Mr. Cockain and Mr. Cox also argued that the instructions to Immigration Officers did not advise or authorise them to ask for evidence of financial support from a returning resident. Mr. Cockain made the additional point that it would be unlawful to ask for this evidence. I have already commented on the nature of paragraph 18 and the action of Immigration Officers under that paragraph.

When does the 5 year period begin?

77. Does the 5 year period begin to run from the original grant of leave to enter or remain, or does it begin afresh each time leave is granted? The first part of regulation 21(3)(i) refers to 'leave to enter or remain'. The second part, which determines the date from which the period of 5 years runs, refers to 'the date of entry'. That suggests the claimant's original entry into the United Kingdom rather than subsequent entries after leaving the common travel area. Any other result would be anomalous. Why should a day trip to France affect the period? This also makes sense of the structure of sub-paragraph (i) of the definition, which does not link the commencement of the period of 5 years to the grant of leave under which the claimant's residence in the United Kingdom is presently authorised.
78. So, my conclusion is that the 5 year period begins to run as follows. If the claimant was given leave to enter the United Kingdom before an undertaking was given, the relevant date is the date of the undertaking. If the undertaking was obtained before the claimant entered the United Kingdom, the relevant date is the date of entry under paragraph 317 of the Immigration Rules.
79. If I am wrong and the language used is unclear, I am entitled to consider the report of the Social Security Advisory Committee on the legislation which introduced the definitions with which I am concerned. That legislation was the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 and the report is Cm. 3062 (1996). This report confirms my interpretation. So, my conclusion would be the same even if the wording were unclear.
80. The proposed legislation as originally drafted effectively imposed an absolute bar on entitlement to income support for a person who 'has been allowed admission into the United Kingdom by the Secretary of State upon an undertaking given by another person', unless the sponsor had died, in which case an urgent cases payment would be available. The Committee commented that this proposal was unduly harsh as the majority of persons affected would be elderly and they would be deprived of benefit in circumstances that were beyond their control. In response, the Secretary of State made a limited concession:

'46. The Government recognises that the longer the time since a sponsorship agreement was made the harder in practice it is to hold sponsors to their obligation.

'47. For these reasons the Government have decided that if a sponsorship agreement breaks down after a period of five years from the date when the arrangement was made, the sponsored immigrant should then be entitled to the full range of benefits so long as they [sic] fulfil the appropriate entitlement conditions. This concession will be made regardless of whether the sponsored immigrant eventually applies for naturalisation in the UK.'

81. Those paragraphs show that the legislation was designed to introduce a bar on entitlement for a limited period and that the key date from which time was to run was 'the date the arrangement was made'. That must mean the sponsorship arrangement. It found more formal expression in the legislation as the later of (i) the giving of the undertaking or (ii) the date of entry. That identifies the date from which the undertaking came into force. If it was given after leave to enter was granted, it would come into force immediately, whereas if it were given before leave to enter was granted, it would not come into force until entry was granted. It would be inconsistent with this if time began to run afresh each time leave to enter was given upon the undertaking.

Period of residence

82. The claimant is excluded from income support for a period of 5 years.
83. Only time during which the claimant was resident in the United Kingdom counts towards that period. A claimant who is outside the United Kingdom may or may not remain resident here. For example, a claimant who takes a week's holiday in Spain would remain resident in the United Kingdom while away, although leave to enter would be needed on return. On the other hand, a claimant who has spent a year abroad would probably have ceased to be resident here. It is possible that the claimants in these cases may not have been resident during part of their time abroad.
84. The definition refers to 'a period of at least 5 years'. Must this be a single period or can shorter periods be aggregated? At the last oral hearing, Mr. Cooper submitted that

'As a matter of language one period of five years can be made up of several shorter periods.'

85. Both Mr. Cockain and Mr. Cox accepted that submission. So, do I.

CIS/3955/1997 and CIS/4609/1997

86. These and other issues were considered in these cases by Mr. Commissioner Angus. The decisions contain a detailed account of the arguments put to the Commissioner, which on some issues were different from the arguments before me. His approach produces the same result as mine on the facts of these cases. In CIS/4609/1997, paragraph 26, he set out four questions of fact which were before the tribunal:

'(1) Had the claimant at any time been given leave to enter or to remain in the United Kingdom?

'(2) Had any person at any time given to the Immigration Authorities an undertaking ...?

'(3) If such an undertaking had been given at any time, was the leave to remain granted on that account? and

'(4) Had the claimant, at the date of the claim relevant to the appeal, been resident in the United Kingdom for a period of at least 5 years from whichever was the later of the date of her entry to the country or the date of the undertaking?'

87. On that analysis, it is irrelevant whether the undertaking still applied in immigration law. It is sufficient that an undertaking had come into force sometime in the past five years. The Commissioner made this point in CIS/3955/1997, paragraphs 20 and 21.
88. Although this approach produces the same result as mine on the facts of this case, I was concerned that in other cases they might produce different results. I used this example:

A claimant comes to the United Kingdom from Somalia to join relatives in year 1 and is given indefinite leave to remain on an undertaking by a sponsor. The relatives and the claimant do not get on, with the result that almost immediately the claimant returns to Somalia. In year 4, the claimant returns to the United Kingdom because of unrest in Somalia. The claimant is given exceptional leave to remain, which I am told is common in the case of immigrants from Somalia.

(The original example used in the discussion concerned an asylum seeker, but Mr. Cox drew attention to the special provisions for those circumstances in regulation 21ZA of the Income Support (General) Regulations 1987. He helpfully suggested the modified version that I have used instead.)

89. Answering the questions set out by Mr. Commissioner Angus produces this result in my example. The claimant had been given leave upon an undertaking and had not been resident for 5 years. So, the claimant is still a person from abroad.
90. My analysis is different and produces a different result. The claimant's authority to reside in the United Kingdom following the grant of exceptional leave was no longer based on leave that was given on an undertaking. The use of 'has been given leave' suggests that the leave continues to be upon the undertaking. That no longer pertains, as leave has been given for a new purpose under the Immigration Rules and, therefore, in circumstances that are not upon the undertaking. The result is that the claimant is not a person from abroad under regulation 21(3)(i).
91. I realise that Mr. Commissioner Angus formulated his questions in the context of the facts of a particular case, which were different from those in my example. They may or may not have been intended as an authoritative statement of the correct approach to all cases. However, that is how his questions have been relied on by the Secretary of State.
92. My conclusion is supported by the report of the Social Security Advisory Committee, which shows that the legislation was not designed to prevent the claimant in my example from obtaining an award of income support. The memorandum submitted to the Committee to explain the original draft linked the bar on entitlement to benefit with the presence of a sponsorship agreement.

'36. The Government proposes to address the situation where people who are granted indefinite leave to remain in this country on the basis that they will be maintained and accommodated by a sponsor become a charge on the benefits system. The Government does not believe that the taxpayer should be responsible for providing support which should be provided by sponsors.'

'39. The Government proposes that a barrier to claiming benefits will therefore be imposed. People covered by sponsorship agreements will henceforth be excluded from entitlement to income-related and non-contributory benefits.'

93. The claimant in my example has been granted indefinite leave to remain on the basis of a sponsorship agreement and had been covered by that agreement, but only as a matter of history. At the date of the claim for income support, the claimant did not have leave on the basis of a sponsorship agreement.
94. Ms. Bergmann argued that in my example the claimant's 'original status will have expired and the immigration authorities will specify new entry terms and conditions' which will create a 'new status'. This assumes that the claimant has somehow maintained an original status through the operation of paragraph 18. On my analysis, this argument is unnecessary.

Conclusion

95. The claimants arguments that their leave to re-enter the country was free of their sponsors' undertakings are misconceived.

APPENDIX B

Transitional Protection

The issue

96. This issue concerns the interpretation and application of regulation 12 of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996. Those Regulations removed the entitlement of a sponsored immigrant to income support, except for urgent cases payments if the sponsor died. However, regulation 12 contained savings provisions.

The legislation

97. In R v The Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants and ex parte B [1996] 4 All England Law Reports 385, the Court of Appeal held that some of the regulations were not authorised by statute. Regulation 12 was not one of those regulations. As only part of the 1996 Regulations had been held to be invalid, the remainder of those Regulations (including regulation 12) were validly made and it was unnecessary for the Regulations to be made and laid before Parliament again.
98. The validity of the other regulations was rectified by the inclusion of provisions in the Asylum and Immigration Act 1996. Section 11 provided the necessary enabling authority for the amendments to the Income Support (General) Regulations 1987. The 1996 Act also inserted additional words into regulation 12(1) with effect from 24 July 1996.
99. The date on which the Regulations came into force was 5 February 1996. This remains the relevant date for the purposes of regulation 12(1): see the decision of the Court of Appeal in R v Secretary of State for Social Security, ex parte T given on 18 March 1997.
100. The current text of regulation 12, with the words inserted into paragraph (1) shown in brackets, reads:

'Savings

'12.-(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.

'(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.'

The decisions of the Court of Appeal

101. The Court of Appeal has considered regulation 12(1) and (3). So far, it has not considered regulation 12(2), which is the one in issue in this case. However, the reasoning used in respect of the other paragraphs has some relevance to paragraph (2).

Regulation 12(1)

102. This paragraph was considered by the Court of Appeal in R v Secretary of State for Social Security, ex parte Vijeikis, Vijeikeine and Zaheer, in which judgments were given on 5 March 1998. The issue was whether the protection given by the paragraph extended to a claimant who was not entitled to benefit on 5 February 1996 but who later claimed benefit. The Court held that it did not. It emphasised that the use of the word 'continues' suggested that entitlement had to exist on 5 February 1996. And it found support for that conclusion in the reference to entitlement, which can only be established under a claim. See page 10 of the transcript.
103. Mr. Commissioner Mesher has given leave to appeal to the Court of Appeal in a paragraph (1) case in CIS/6258/1999 [R(IS) 9/01].

Regulation 12(3)

104. This paragraph was considered by the Court of Appeal in R v Chief Adjudication Officer, ex parte B [1999] 1 Weekly Law Reports 1695. The issue was whether the protection given by the paragraph continued into an award of a disability living allowance made on a fresh 'renewal claim' after 5 February 1996. The Court of Appeal held that it did not. Although the paragraph expressly provides for the protection to end when the claimant's entitlement is reviewed, the Court held that it also terminated when the award under which the claimant was receiving disability living allowance on 5 February 1996 came to an end. The Court emphasised the reference to 'his' entitlement, reasoning that that entitlement had to be related to the award under which benefit was being received on 5 February 1996.
105. I gave leave to appeal to the Court of Appeal in a paragraph (3) case (CDLA/1041/1998), in order to allow a possible challenge to ex parte B in the House of Lords. The Court of Appeal dismissed the appeal, but the claimant has now been given permission to appeal to the House of Lords. Confusingly, that case is also now known as B. [later M, R(DLA) 7/01]

My approach to the interpretation of regulation 12(2)

106. I approach the interpretation of regulation 12(2) like this.

The nature and function of savings provisions

107. Regulation 12 provides for the transitional effect of the amendments introduced by the 1996 Regulations. In CIB/559/2000, paragraph 18, I described the function of a transitional provision as being 'to manage the change between the old and new legislation.'
108. Savings provisions are a particular form of transitional provision. Their function was described by Lord Justice Judge in Vijeikis (page 9 of the transcript) as being to preserve existing rights. The nature of a savings provision was relied on by Lord Justice Peter Gibson in ex parte B (at page 1706):

'It is characteristic of transitional relief that it preserves entitlements existing at the date when the measure comes into force. It would be uncharacteristic of transitional relief to extend such relief to new rights coming into existence after the coming into force of the measure.'

And this passage was repeated by Lord Justice Schiemann (at page 1707). I respectfully agree with these statements.

The different language of the three paragraphs

109. The three paragraphs of regulation 12 are expressed differently. Fortunately, I do not have to solve all the difficulties that arise in the regulation. I admit that, although I have tried to find a way of explaining all those difficulties, I have failed. However, all I have to do is to interpret paragraph (2).
110. Given the different ways that the three paragraphs are expressed, it would be wrong to rely too closely on the precise textual analysis undertaken by the Court of Appeal for paragraphs (1) and (3).

The different benefits covered

111. Paragraphs (1) and (2) deal with council tax benefit, housing benefit and income support. These are a package of benefits of last resort. In his skeleton argument on a different issue, Mr. Cox described them as comprising the 'UK's social assistance system'. (He included income-based jobseeker's allowance, but that benefit did not exist when these regulations were made.)
112. In contrast, paragraph (3) covers benefits that are not of last resort. The protection given for those benefits is capable of coming to an end earlier than that given to the benefits of last resort. Their protection can be brought to an end when a review is conducted, as well as on the termination of an award. This lesser protection is understandable, given that the benefits are not ones of last resort and that some of them could run for life.

Time-limited benefits

113. Another feature of the benefits covered by paragraphs (1) and (2) is that they are time-limited. Paragraph (1) deals with asylum seekers, whose claims for asylum will eventually be determined. Paragraph (2) deals with sponsored immigrants, who become entitled to benefit under the new rules after 5 years. So, the duration of the protection given by these paragraphs is not potentially open-ended.
114. This point is relevant in this way. The argument for the claimants was that the protection given by paragraph (2) vested in a claimant who had been receiving income support at any time before 5 February 1996 and continued for its natural life (i.e. until the determination of the claim for asylum or the passage of 5 years for a sponsored immigrant). If that was what the provision was intended to achieve, it is drafted in a very convoluted way to achieve it. Mr. Cox argued that any attempt to convey the supposed intention in different words would have resulted in a longer and more complicated provision. I disagree. I do not suggest that the following rewrite of paragraph (2) is perfect, but it conveys the essence of the interpretation argued for by the claimants and it does so succinctly:

'Where a sponsored immigrant has at any time before 5 February 1996 been in receipt of income support, the Income Support Regulations as in force on 4 February 1996 shall continue to apply to him until he becomes entitled under the amendments made by these Regulations.'

115. It is not always safe to interpret a provision by reference to other ways that it might have been drafted. But I consider that I am entitled to take this into account in this case, as the claimants are arguing for an interpretation that is so different from the wording.

A general theme?

116. 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.
117. This is more of a conclusion from my reading of the regulation than a reason for my interpretation, but the fact that my reading identifies a coherent theme gives support to my conclusions. I respectfully differ from the view of Lord Justice Schiemann in ex parte B (at page 1708) that

'The policy behind regulation 12(3) is difficult to establish.'

The language of regulation 12

118. The natural focus in time for a savings provision is the day before the changes come into force. Looked at in that way, the use of tenses in regulation 12 makes sense. In this respect, I respectfully differ from the Court of Appeal in both Vijeikis (page 6 of the transcript) and ex parte B (at page 1707), where the judges found the use of the tenses unclear and confusing.
119. The present tense is used to refer to the position on the day before the changes come into force. So, 'is entitled' (paragraph (1)), 'is entitled, or are receiving' (paragraph (2)) and 'is receiving' (paragraph (3)).
120. The past tense is used to refer to something that happened before that date. So, 'an undertaking was given' and 'claimed benefit' (paragraph (2)). There is one exception to this – 'becomes an asylum seeker' (paragraph (1)). This is explained by the fact that those words reproduce the wording, including the tense, in regulation 70(3A)(a) of the Income Support (General) Regulations 1987.
121. When the tenses are viewed from the natural point of focus in a savings provision, it is easy to understand why the word 'immediately' could not be used in the expression 'before the coming into force of these Regulations'. That word would be appropriate if only events or circumstances on the day before the Regulations came into force were relevant and might be used to avoid any misunderstanding. But the word cannot be used where events or circumstances before that day are also specified.
122. The future tense ('shall') is used to refer to the future consequences of satisfying the condition set out at the start of each paragraph.

Protection for the claim or for the claimant?

123. Mr. Cox argued that the protection given by regulation 12(2) was not protection for the claim or award current at 5 February 1996, but for the claimant. He drew support from ex parte B, in which there was said to be some difficulty with the literal meaning of regulation 12(3). In this respect, I respectfully differ from the Court of Appeal.
124. The structure of all three paragraphs is 'Where X, then Y, until Z.' 'Where' means 'in the following circumstances.' So, X is those circumstances. Y is the protection given. Z is the condition that terminates that protection.
125. So, the structure of each paragraph is this: 'in the following circumstances, the former law continues to apply, until some specified event occurs.' Obviously that means that the former law continues to apply to those circumstances. If the claimant is receiving a benefit, that means that the former law continues to govern that payment until the terminating condition is satisfied. The emphasis is obviously not on the claimant, but on the award or claim. That to me is the literal meaning of the words.
126. I am aware that I have now differed on three matters from the views of judges of the Court of Appeal. I trust that on none of those matters was I bound by what the judges said. My difference of opinion may merely be evidence of the truth of the remark by Prince Philip that: 'if you can keep your head while all around are losing theirs, it just goes to show that you have not understood the scale of the problem.'

Outstanding claims and ongoing awards

127. Regulation 12(2) applies if a person 'claimed benefit to which he is entitled, or is receiving benefit'.
128. The natural reading of those words in the social security context is this. The first clause deals with a claim that was made before 5 February 1996, but was only determined in the claimant's favour after that date. The second clause deals with an award that was made and put into payment before that date. Mr. Cox at first argued for a different analysis, but later agreed that my interpretation (later also put forward by Mr. Cooper) was correct.
129. On my analysis of the tenses used, the protection of paragraph (2) does not apply if the claimant was not receiving benefit on 4 February 1996 and did not have an outstanding claim at that date. This is consistent with the decision of the Court of Appeal in Vijeikis.

When does protection end?

130. My analysis is that the protection given by regulation 12(2) attaches to the claim or award that was current on 5 February 1996. It follows that the protection ceases when that claim or award ends. So, the protection does not benefit a claimant who was in receipt of benefit on 4 February 1996, but who has to reclaim after a later break in entitlement. This is consistent with the decision of the Court of Appeal in ex parte B on regulation 12(3).

The amendment to regulation 12(1)

131. Mr. Cox at first relied in part on the words inserted into paragraph (1) by the 1996 Act. I put it to him that I should interpret regulation 12 as originally made and that the words later inserted into paragraph (1) could not change the meaning of paragraph (2). He accepted this, as did Mr. Cooper.
132. If authority is needed for this proposition, it is to be found in authorities from both the Court of Appeal and the House of Lords. In Bate v. Chief Adjudication Officer, in which judgments were given by the Court of Appeal on 30 November 1994, Lord Justice Glidewell said at page 17 of the transcript that

'an amendment cannot affect the interpretation of the initial phrase which is based on the normal meaning of that phrase in the English language.'

Also, Lord Slynn in his speech in the House of Lords in Chief Adjudication Officer v Quinn [1996] 4 All England Law Reports 72 at page 82 said that a later amendment was not relevant to the interpretation of a provision as it stood before that amendment. I am grateful to Mr. Cooper for the references to these authorities.

133. Mr. Cox then argued that the inserted words made patent what was already latent in paragraph (1) and that they were also latent in paragraph (2). I disagree. The inserted words are intended to extend the protection given by paragraph (1) to the family of asylum seekers, to whom the asylum claim would also relate. The insertion is not felicitously worded, but its meaning is clear and the draftsman had to start with the language already there. For the reasons I have given, the protection under paragraph (2) relates to the claim, not to the claimant. I do not find any other meaning latent in the words, or even in what I take to be the policy, of paragraph (2).

The Secretary of State's interpretation for housing benefit purposes

134. Mr. Cox told me that the Secretary of State's advice was that the protection given by paragraph (1) at least (and perhaps also that given by paragraph (2)) extended throughout repeat claims. He did not know of any decisions on that view. Mr. Cooper told me that he had heard of the advice, but did not know the basis on which it was made.
135. This advice and the implementation of it in awards of housing benefit cannot affect the interpretation of the legislation.

How does this apply to the claimants?

136. The claimant in CIS/1077/1999 was receiving income support on 4 February 1996, but there was a later break in his entitlement and he made a fresh claim. The tribunal was concerned with the refusal of that fresh claim. The protection of regulation 12(2) originally applied, but as there was a break in entitlement, the protection did not apply to the fresh claim.
137. The claimant in CIS/6608/1999 was in receipt of income support before 4 February 1996, but not on that date. He made a claim for income support after 4 February 1996. The tribunal was concerned with the refusal of that claim. As the claimant was not receiving benefit on 4 February 1996 and did not have an outstanding claim at that date, the protection of regulation 12(2) did not apply from 5 February. Nor did it arise later.

APPENDIX C

Validity

The issue

138. This issue concerns the validity of the amendments to the income support scheme made by the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 in respect of sponsored immigrants.

The JCWI case

139. There is an argument that the 1996 Regulations were not valid in view of the reasoning of the Court of Appeal in R v The Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants and ex parte B [1996] 4 All England Law Reports 385. The basis of that case was that an enabling provision in one statute could not authorise the removal by subordinate legislation of a right given by another statute. That effect could only be achieved by amending the other statute.
140. I dealt with, and rejected, an argument based on that case in CIS/5275/1999. I have given leave to appeal to the Court of Appeal against that decision.
141. Mr. Cox did not rely on that case as the basis of his argument on validity, although he did refer to it in the context of other arguments. His argument was based on the interpretation of the enabling provisions in the context of the 1992 social security legislation.

Mr. Cox's argument

142. Mr. Cox argued that the amendments to the income support scheme made by the 1996 Regulations could only properly be made by statute. This has now been done by section 115 of the Immigration and Asylum Act 1999, but only from 3 April 2000.
143. I agree with Mr. Cox that the relevant income support amendments must have been made under section 135, as extended by section 175(3)(a), of the Social Security Contributions and Benefits Act 1992. (I do not agree with Mr. Cooper's argument that they were made under section 137(2)(a), for the reasons given by Mr. Cox at the last oral hearing. I do not need to set out those reasons, as Mr. Cox's argument is the same whether it is based on section 135 or 137.)
144. The key enabling provision is section 135. The relevant provisions read:

'(1) The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit.

'(2) The power to prescribe applicable amounts conferred by subsection (1) includes power to prescribe nil as an applicable amount.'

145. Read alone, those provisions are wide and unqualified enough to authorise the amendments. However, Mr. Cox argued that their scope was impliedly limited by sections 105 and 106 of the Social Security Administration Act 1992.
146. Section 105 makes it a criminal offence for a sponsor to fail to maintain the sponsored immigrant, if income support is paid to or in respect of the immigrant as a result of the failure. Section 106 gives the Secretary of State power to apply to a court for an order that the sponsor pay to the Secretary of State some or all of the income support paid to the immigrant. The court has a discretion whether or not to make an order and, if it does, as to the amount.
147. The sections are not limited to sponsored immigrants. Their scope is fixed by reference to section 78(6) of the Act. It has been limited by the child support legislation, but that was primary legislation. If the 1996 Regulations are valid, the scope has been further limited.
148. Clearly those sections presuppose that the immigrant would be entitled to income support if the sponsor failed to honour the undertaking given to the Secretary of State. The issue for me is whether the immigrant's entitlement to income support was entrenched by virtue of sections 105 and 106 so that only primary legislation could remove it.

Is the 1992 legislation to be read as a whole?

149. Yes, but.
150. The Social Security Administration Act 1992 and the Social Security Contributions and Benefits Act 1992 were consolidation Acts. The enabling provisions relied on by Mr. Cooper are now in the Social Security Contributions and Benefits Act 1992. The other provisions relied on by Mr. Cox are in the Social Security Administration Act 1992. But all the provisions had their origin in the same legislation – the Social Security Act 1986. It is obviously appropriate that the Acts should be read as a whole.
151. However, the two Acts deal with different aspects of social security. The Social Security Contributions and Benefits Act 1992 deals with substantive entitlement and the Social Security Administration Act 1992 deals with the machinery of administration. That is relevant in pointing to the nature and subject matter of sections 105 and 106. They are enforcement provisions and, even in the 1986 Act, they were nothing to do with substantive entitlement. So, the fact that the two Acts have to be interpreted as a whole does not mean that the different natures of their provisions have to be overlooked, any more than they could be overlooked when the provisions were all in the same Act.

Are the amendments compatible with sections 105 and 106?

152. Yes, they are.

Policy

153. First, to me the clear policy that emerges from sections 105 and 106 is that the public purse should, if possible, not foot the bill for the sponsor's failure to maintain the immigrant. That is exactly the same policy as underlies the 1996 Regulations. That is obvious from the terms of the amendments. If there could be any doubt about this, it is put beyond doubt by the Secretary of State's Report on the Regulations to the Social Security Advisory Committee (1996 Cm. 3062). So, the policy behind the amendments is compatible with the policy behind the primary legislation.

Rights and assumptions

154. Second, sections 105 and 106 are powers that are made available to enforce the duties to maintain.
155. The sections were based on an assumption that income support would be available to sponsored immigrants if the sponsor refused to maintain. At the time when the 1986 Act was passed, that was an assumption about the provision that the Secretary of State might make when introducing the income support scheme. At the time when the legislation was consolidated in 1992, income support for sponsored immigrants was part of the scheme and it was no doubt assumed that it would continue to be part of the scheme, at least for the time being. I am aware of nothing at the time when either the 1986 Act or the 1992 legislation was passed that suggested that entitlement to income support for sponsored immigrants would remain unchanged, let alone that it would remain unchanged apart from primary legislation. The income support scheme is largely implemented in subordinate legislation made under broad enabling powers. It is inherent in the nature of schemes that are set up in that way that they are subject to change through further subordinate legislation, so long as it is authorised by statute.
156. Mr. Cox's argument tries to overcome this difficulty by implying a limitation into section 135 and relies on sections 105 and 106 to do that. But those sections are based on assumptions and assumptions do not confer rights. Mr. Cox's argument elevates an assumption into a right and not only into a right, but into an entrenched right that can only be removed by amending primary legislation. There is nothing in the 1986 or 1992 legislation that justifies that effect. There is nothing in sections 105 or 106 that dilutes the scope of sections 135.

The Fire Brigades case

157. Mr. Cox relied on the reasoning of the House of Lords in R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 All England Law Reports 244. That case concerned the criminal injuries compensation scheme. The original scheme was made under prerogative powers. A new scheme was set out in a statute containing a standard form of commencement provision under which the Secretary of State was given power to bring it into force. Instead of bringing the Act into force, the Secretary of State announced that the statute would not be brought into force and would eventually be repealed. A new scheme would be introduced under the prerogative powers. The House of Lords held that the commencement provision gave the Secretary of State a power, but not a duty, to bring the Act into force. However, there was an implied duty to keep the possible exercise of this power under review. It was a breach of that duty to surrender or release the power. It was also a breach to procure circumstances that rendered it inappropriate to exercise the power, thereby rendering it redundant.
158. The provisions in this case are different from those in that case. I find no relevant analogy between the cases. A commencement power is made upon the assumption that it will be exercised when, if at all, circumstances are appropriate. The powers in sections 105 and 106 are ones that were made on assumptions, but they were different assumptions from those underlying a commencement provision. In the case of the 1986 legislation, the assumption was about the likely future form that the income support scheme would take. In the case of the 1992 legislation, the assumption was about the likely continuance for the time being of the current form of that scheme. Neither of those assumptions contains any built-in limitation. That is in contrast to the commencement power which is based on an assumption that it will be exercised when circumstances are appropriate.
159. I do not have to decide whether there is any implied duty on the Secretary of State in respect of sections 105 and 106. Whatever duty there may be does not elevate the assumption on which those sections are based into an entrenched right that can only be removed by primary legislation.

Private prosecution

160. There was some discussion of the possibility of a private prosecution by an immigrant whose sponsor was in breach of the undertaking and the duty to maintain. That is obviously a very limited right, if it exists at all. More importantly, as Mr. Cox acknowledged, it was of little possible relevance to immigrants before the 1996 amendments, because income support was potentially available. So, this power cannot be used as a foundation for an entrenched right that existed before the amendments.

Conclusion

161. So, my conclusion is that the amendments made by the 1996 Regulations were authorised by sections 135(1) and (2) and 175(3)(a) of the Social Security Contributions and Benefits Act 1992.

APPENDIX D

Human Rights

The issues

162. The issues concern the commencement of the Human Rights Act 1998, the scope of the Convention right in Article 8, and a Commissioner's possible jurisdiction to award damages for delay.

Commencement of the Human Rights Act 1998

The arguments

163. I have found the argument of all the representatives that have appeared in these cases of great help. Unfortunately, speaking comparatively, their arguments on this issue were the least helpful and I have had to rely largely on my own devices.

The scheme of the Act

164. The Human Rights Act 1998 were brought fully into force on 2 October 2000. A similar effect had earlier been achieved as part of the devolution measures in the Government of Wales Act 1998 and the Scotland Act 1998.
165. The Act introduces a dramatic change in the constituent parts of the central and devolved constitutions that govern England, Wales and Scotland.
166. Section 3(1) deals with the interpretation and application of primary and secondary legislation:

'So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.'

That provision is in general terms and applies regardless of the nature of the parties or the nature of the proceedings.

167. In addition, there is special provision for public authorities and for relying on the unlawfulness of their acts in 'proceedings'. The Secretary of State in his decision-making function, the appeal tribunals and the Commissioners are all obviously public authorities for this purpose. Section 6(1) provides:

'It is unlawful for a public authority to act in a way which is incompatible with a Convention right.'

This is subject to a defence in section 6(2):

'Subsection (1) does not apply to an act if––

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.'

168. Proceedings involving public authorities are covered by section 7. A distinction is drawn between two different types of proceedings. Under section 7(1):

'A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may––

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.'

169. The appeals to the tribunals and the appeals to the Commissioner in these cases were both brought against the Secretary of State, who is a public authority. However, they were not brought 'under this Act' within section 7(1)(a). They were brought under the Social Security Administration Act 1992 or the Social Security Act 1998. Even if they had been brought after the commencement of the Human Rights Act 1998, they would still not be 'proceedings under this Act'. Nor would they be brought in an 'appropriate court or tribunal' within section 7(1)(a). That expression is defined by section 7(2) as meaning:

'such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.'

And 'rules' is defined by section 7(9)(a) and (b) as meaning for England and Wales 'rules made ... for the purposes of this section or rules of court' and for Scotland 'rules made ... for those purposes'.

170. The only civil rules that I know of are made by the Civil Procedure (Amendment No. 4) Rules 2000, which provide for 'claims' under section 7(1)(a). Claims in respect of a judicial act must be brought in the High Court, while other claims may be brought in any court. Also, no rules have been made 'for the purposes of this section' so far as appeal tribunals or Commissioners are concerned.
171. So, the proceedings before the social security appeal tribunal and before me were not under section 7(1)(a).
172. However, the proceedings are within section 7(1)(b). This paragraph does not contain the limitations that apply under paragraph (a), although it is necessary for the person relying on the Convention right to be 'a victim of the unlawful act'. (This condition is obviously satisfied.) Although paragraph (b) applies regardless of who has commenced the proceedings, its commencement depends on whether they were brought by or at the instigation of a public authority. This is governed by section 22(4), which provides a comprehensive code for the commencement of section 7:

'Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section.'

173. As the proceedings before the social security appeal tribunals and before me were not brought under by or at the instigation of the Secretary of State, the first limb of section 22(4) does not apply. The proceedings are governed by the second limb. That means that the claimants may not rely on the unlawfulness (under section 6(1)) of an act that took place before 2 October 2000.

Mr. Cox's argument

174. Mr. Cox's argument ignored these difficulties and concentrated instead on me as a public authority under section 6. He argued that I was under a duty not to act in a way that was incompatible with the claimants' Convention right under Article 8(1). I reject that argument.
175. A judge who deals with proceedings under section 7(1)(b) on or after 2 October 2000 is a public authority and must follow a procedure that does not violate the Convention right to a fair hearing under Article 6(1). But in deciding whether the public authority who is a party to the proceedings violated a Convention right before 2 October 2000, the judge cannot be bound by section 3. Otherwise, the commencement code in section 22(4) would be bypassed.

Case law

176. In view of my reasoning, it is not necessary to consider the case law on the commencement of section 3. Nor do I need to refer to the Parliamentary debates.
177. Mr. Cox referred me to the starred decision of the Immigration Appeal Tribunal in Selvaratnam Pardeepan v Secretary of State for the Home Department [2000] INLR 447. The decision is consistent with my conclusion, but was based on the terms of legislation that only applies to immigration and asylum adjudication.

CG/2356/2000

178. I have had the benefit of reading this determination by Mr. Commissioner Lloyd-Davies in which he refused leave to appeal to a claimant. His conclusions on the commencement of the Human Rights Act 1998 are in line with mine and have the advantage of being stated more succinctly. I respectfully agree with them.

Conclusion

179. So, my conclusion is this. The appeals to the social security appeal tribunal were both made by the claimants; they could not be made by the Secretary of State. The appeals to the Commissioner were both made by the claimants. In those circumstances, the proceedings fall within section 7(1)(b). In challenging the decision of the adjudication officer or the Secretary of State, the claimants cannot, by reason of section 22(4), rely on the violation of a Convention right in respect of any act before 2 October 2000. In other words, they can only show that a decision of an appeal tribunal was erroneous in law by relying on a violation of a Convention right in a decision of the Secretary of State made on or after that date. If the appeal to the tribunal was made after the passing of the Social Security Act 1998, the tribunal and the Commissioner will not be able to take into account circumstances not obtaining at the date of the decision under appeal. This has the result that the effect of a claimant's Convention right under the Human Rights Act can only be considered on a fresh claim or on a revision or supersession.
180. This means that the claimant in CIS/6608/1999 cannot rely on a breach of his Convention right to show that the decision of the tribunal was erroneous in law or that the adjudication officer was wrong to refuse his claims for income support.
181. The position in CIS/1077/1999 is more complicated. The Secretary of State has accepted that the tribunal's decision was wrong in law. I am giving my own decision. I have considered whether that means that I am bound to take into account the claimant's Convention right to respect for his private life. I have concluded that I am not entitled to take this into account. My reason is this. I am giving the decision that the tribunal should have given on the findings that it made. That means that I must consider the case as at the date of the hearing, which was before 2 October 2000.
182. One other point is relevant to CIS/1077/1999. As the appeal to the tribunal was made before the passing of the Social Security Act 1998, the tribunal had to consider the case down to the date of its hearing. At that date, it was correct to decide that the claimant was still not entitled to income support. By the date of this decision and, indeed, before 2 October 2000, the claimant had been awarded income support. So, there is no period in issue after the commencement of the Human Rights Act.
183. I do not have to decide whether the position would be different if an appeal to the Commissioner is made by the Secretary of State. That will depend on what constitutes the 'proceedings' under section 22(4). On one view, the appeal to the appeal tribunal and the appeal to the Commissioner are separate proceedings. If that is correct, an appeal brought to a Commissioner by the Secretary of State falls within the first limb of section 22(4).
184. However, in R v DPP, ex parte Kebilene [1999] 4 All England Law Reports 801 at page 832, Lord Steyn said that:

'a construction which treats the trial and the appeal as parts of one process is more in keeping with the purpose of the Convention and the Act of 1998.'

That can be used as the foundation for an argument that the appeals to the appeal tribunal and to the Commissioner are part of one proceedings. If that is correct, all proceedings can only be started by claimants and, even if the appeal to the Commissioner is brought by the Secretary of State, the case falls within the first limb of section 22(4).

185. This issue was touched on by the Immigration Appeal Tribunal in Selvaratnam Pardeepan (paragraphs 8 and 9 of the judgment), where it is suggested that an appeal to the Tribunal by the Secretary of State would constitute proceedings instigated by the Secretary of State. However, that point was not part of the binding decision and there is no report of the argument at the hearing. In particular, I do not know whether Lord Steyn's remark was discussed.

Article 8

186. Mr. Cox argued that a broad interpretation of section 135 of the Social Security Contributions and Benefits Act 1992 was incompatible with the Convention right of each claimant 'to respect for his ... private life' under Article 8(1). He did not rely on the 'family life' aspect of Article 8(1), nor on any other Convention right.
187. Mr. Cox's argument was, he admitted, based on an extension of existing case law and relied in part on the European Social Charter. He summarised his argument in these passages from his skeleton argument for the last oral hearing:

'39. C does not contend that Article 8 requires a state to have a particular scheme of social assistance, or to apply the same scheme to everyone, let alone to provide a universal minimum income.

'40. C simply contends that Article 8 requires the state to maintain a social assistance scheme which enables poor people to enjoy respect for family and private life and home.'

188. In view of my conclusion on commencement, it is not necessary to deal with his argument.
189. Following the last oral hearing, Mr. Cox sent to me a short report of the decision of the Court of Appeal in R v Secretary of State for the Home Department, ex parte Amjad Mahmood, given on 8 December 2000. He said that it was relevant to the Article 8 issue and invited me to defer determination in order for him to obtain a copy of the full judgments and for me to receive submissions on them. I am grateful to him for drawing this case to my attention, but, as I have not had to deal with the Article 8 issue, I did not defer determination.
190. Although I do not deal with the Article 8 issue, two possible difficulties with Mr. Cox's argument have occurred to me and I record them in case they are helpful in later cases.

National assistance

191. Mr. Cox defined the social assistance system as consisting of income support, income-based jobseeker's allowance and council tax benefit. That overlooks the (admittedly limited) national assistance scheme. I am not persuaded that the National Assistance scheme does not satisfy Article 8.
192. Section 21(1)(a) of the National Assistance Act 1948 authorises the provision of

'residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them'.

And section 21(5) defines accommodation as 'including board and other services, amenities and requisites in connection with the accommodation'.

193. This provision was widely interpreted by the Court of Appeal in R v Hammersmith and Fulham London Borough Council, ex parte M to allow needs to be anticipated if a person is destitute and likely to become in the need of care and attention. It is not necessary to wait until the care and attention is actually needed.
194. The Immigration and Asylum Act 1999 amended section 21. Those amendments do not affect this case, but may be relevant in the future. The amendments apply to persons subject to immigration control. They provide that that accommodation cannot be provided if a person's

'need for care and attention has arisen solely––

(a) because he is destitute; or

(b) because of the physical effects, or anticipated physical effects, of his being destitute.'

See section 21(1A) of the 1948 Act.

195. This has been restrictively interpreted by the Court of Appeal. In R v Wandsworth London Borough Council, ex parte O [2000] 4 All England Law Reports 590. The Court's interpretation of the new restrictions was set out by Lord Justice Simon Brown at page 599:

'if an applicant's need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include, of course, age, illness and disability ...'

196. The 1948 Act and its amendments, as interpreted by the courts, will have to be considered in order to determine whether there is a violation of Article 8.

Allocation of limited resources

197. In R v North West Lancashire Health Authority, ex parte A, in which judgments were given on 29 July 1999, the Court of Appeal was concerned with an application for judicial review of the Health Authority's decision to refuse to fund gender re-assignment surgery. Lord Justice Auld said of Article 3:

'It is plain, in my view, that art 3 was not designed for circumstances of this sort of case where the challenge is as to a Health Authority's allocation of finite funds between competing demands.'

198. The decision in that case was made without reference to Convention rights. So, that remark was not part of the decision that is binding on me. It was also made in relation to very different circumstances. However, it is relevant for two reasons.
199. First, as Lord Mustill pointed out in Secretary of State for Social Security v Fairey [1997] 3 All England Law Reports 844 at page 850 [R(A) 2/98]:

'the entire shape of the social services legislation represents a strategy about the deployment of limited funds ...'

200. Second, Article 3 is concerned with the unqualified prohibition of torture and inhuman and degrading treatment. If financial considerations are not relevant in that context, then the argument is stronger against them being relevant in the context of the right that only requires 'respect' for private life under Article 8(1), with the further qualifications under Article 8(2).

Damages

201. At the first oral hearing of CIS/6608/1999, Mr. Cox made a tentative argument that a Commissioner had jurisdiction to award monetary recompense or compensation (he scrupulously avoided calling it 'damages') for the delay in the handling of the claimant's claim.
202. In summary, his argument was this. Section 3 of the Human Rights Act requires legislation to be interpreted if possible to comply with a claimant's Convention rights. Commissioners have power to do what tribunals have power to do. The appeal to the tribunal is governed by what is now section 12 of the Social Security Act 1998. That section and those that it replaced do not set out the tribunal's powers – they merely refer to appeals. Taken with section 3 of the Human Rights Act, that allows scope for a Commissioner to decide that section 12 includes power to award monetary recompense or compensation for a claimant whose case has been delayed to the point where there is a breach of Article 6(1).
203. At the last oral hearing, Mr. Cox said that he thought that the correct forum for a claim for (what he now called) damages was likely to be the High Court or a county court. However, he wanted to preserve the claimants' position in case it turned out that I did have jurisdiction. So, he asked me to reserve the issue of damages in case I did have jurisdiction. He was supported in his argument by Mr. Cooper.
204. I was concerned that, with that reservation, my decision might not be final so as to allow an appeal to the Court of Appeal. Both Mr. Cox and Mr. Cooper argued that my decision on the appeal against the tribunal's decision would be final on that issue so as to allow an appeal to the Court of Appeal.
205. I do not understand their reasoning. Apart from a small original forfeiture jurisdiction, my jurisdiction is appellate and, like all appellate jurisdiction, entirely statutory. My appellate jurisdiction is limited to dealing with appeals against tribunal decisions. I do not know of any provision or argument that would confer on me the power to award damages. Nor do I know of any reasoning that would allow me to reserve some other issue to be dealt with outside an appeal. There is a slightly controversial and limited power to reserve a liberty to restore in order to challenge the mathematical working out of a decision, but that is quite different from what I was asked to do.
206. However, I do not want the claimants to be prejudiced and deprived of a remedy if I am wrong. So, I have reserved in both cases the power for the claimants to ask me or another Commissioner to deal with a claim for damages, if it is decided that the Commissioner is the proper forum.

DECISION OF THE COURT OF APPEAL

Mr. A. Nicol QC and Simon Cox (instructed by Messrs. Eric Bowes & Co.) appeared for the Appellant.

Miss. N. Lieven (instructed by the Treasury Solicitor) appeared for the Respondent.

Judgment

207. LORD JUSTICE PILL:

Lady Justice Hale will give the first judgment.

208. LADY JUSTICE HALE:

This is an appeal from a decision of Mr. Social Security Commissioner Jacobs which was communicated by a letter dated 3 January 2001. The Commissioner himself gave permission to appeal because of the complexity of the issues. These concern the effect of an undertaking given by an immigrant's sponsor to maintain the immigrant upon the immigrant's entitlement to income support, in particular after the immigrant has left the country and later returned. The difficulty arises because of changes in policy and regulations since the relevant undertaking was given in this case. Those changes are therefore part of the background history to these proceedings.

209. The appellant is a Pakistani citizen who was born in 1921 and so is now over 80 years old. He was given leave to enter this country as a visitor in February 1993. On 6 December 1993, his nephew, Hameed Hussain Shah, signed a sponsor's undertaking to be responsible for his maintenance and accommodation. I shall return to the precise wording of that undertaking in due course.
210. On 16 June 1994, the appellant was given indefinite leave to remain. The basis of that indefinite leave to remain is contained in paragraphs 139, 56 and 52 of HC 251, the Statement of Changes in Immigration Rules which was then in force. At that date the undertaking, in itself, had no effect upon the appellant's entitlement to income support or other means-tested benefits. If he did claim such support, a sponsor who had persistently refused or neglected to maintain him would be guilty of a criminal offence under section 105 of the Social Security Administration Act 1992 and the monies paid might be recouped from the sponsor under section 106 of that Act.
211. The appellant left the United Kingdom on 1 January 1995. The Government then decided to change the policy. The Social Security Commissioner quoted from paragraphs 36 and 39 of the memorandum submitted by the Government to the Social Security Advisory Committee to explain their original draft:

"36. The Government proposes to address the situation where people who are granted indefinite leave to remain in this country on the basis that they will be maintained and accommodated by a sponsor become a charge on the benefit system. The Government does not believe that the taxpayer should be responsible for providing support which should be provided by sponsors.

...

39. The Government proposes that a barrier to claiming benefits will therefore be imposed. People covered by sponsorship agreements will henceforth be excluded from entitlement to income-related and non-contributory benefits."

212. This was originally planned to be an absolute ban until the sponsor died. It was, however, modified in response to representations from the Social Security Advisory Committee so that it would last only for five years. The Social Security Commissioner quoted the Government's response to the Committee as follows:

"46. The Government recognises that the longer the time since a sponsorship agreement was made the harder in practice it is to hold sponsors to their obligation.

47. For these reasons the Government have decided that if a sponsorship agreement breaks down after a period of five years from the date when the arrangement was made, the sponsored immigrant should then be entitled to the full range of benefits so long as they [sic] fulfil the appropriate entitlement conditions. This concession will be made regardless of whether the sponsored immigrant eventually applies for naturalisation in the UK."

213. The outcome of that policy change was the Social Security (Persons From Abroad) (Miscellaneous Amendments) Regulations 1996, made under various enabling powers of the social security legislation. Two points are relevant to these proceedings. First, regulation 8 amended the Income Support (General) Regulations 1987, regulation 21(3), to add another category to the definition of "persons from abroad". The effect was to remove their entitlement to income support. Income support is payable, roughly, where a person's income, as defined in the regulations, is less than his or her requirements as prescribed in the regulations. By schedule 7 to the 1987 regulations, paragraph 17, the requirements of certain people, including single people, who fall within the definition of "persons from abroad" are prescribed as nil.
214. The additional category of such persons introduced by regulation 8 is in regulation 21(3)(i). (There was also a paragraph (j) which does not concern us in this case.) Paragraph (i) covers a person who:

"...has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking given by another person or persons in writing in pursuance of immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation; and he has not been resident in the United Kingdom for a period of at least 5 years beginning from the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later..."

215. Secondly, regulation 12 of the amending regulations contained transitional provisions, including, in regulation 12(2), a saving for certain people who had already claimed or were in receipt of benefit. The Commissioner held that this saving did not apply to this appellant, and grounds of appeal in relation to that have not been pursued in the light of the decision of the House of Lords in M (A Minor) v. Secretary of State for Social Security [2001] 1 WLR 1453.
216. Those amendment regulations came into force or 5 February 1996. Soon after that, on 8 March 1996, the appellant returned to the United Kingdom. He was given leave to enter as a returning resident. By this time, HC 251 had been replaced by the Immigration Rules, HC 395, although they were to much the same effect. Paragraph 18 provides for the conditions under which returning residents may be given leave to enter, and I will return to those later in this judgment.
217. The appellant left again in April 1997 and returned in July 1997. On return he was again given leave to enter under paragraph 18. Shortly after that, he made the first of three claims for income support which are the subject of these proceedings. They were all rejected in June 1998, on the ground that he fell within regulation 21(3)(i) and five years had not yet elapsed. His appeal to the Social Security Appeal Tribunal was dismissed, and Mr. Social Security Commissioner Jacobs dismissed his further appeal in December 2000.
218. Meanwhile, on 30 June 1999, the Secretary of State accepted that he was now entitled to income support as five years had elapsed, in fact, since the date that leave was first given on the basis of the undertaking. So the actual claim with which we are concerned relates to the two years between the claim in July 1997 and the grant of income support on 30 June 1999. There will be many other people similarly affected, although they will be diminishing in number because of changes made to the law by the Immigration and Asylum Act 1999.
219. There are three issues on this appeal: first, whether the undertaking given by the nephew covered the later periods of leave to enter as a returning resident; second, whether that leave was granted "upon an undertaking" within the meaning of regulation 21(3)(i); and third, whether the 1996 amended regulations were validly made - that is, within the powers granted by the enabling legislation. The first two issues are to some extent inter-related in that they depend upon very similar arguments, although conceptually they are quite distinct.

1. The scope of the undertaking

220. Mr. Nicol QC, on behalf of the appellant, argues that the undertaking must be construed in the context of the scheme of immigration law as it existed at the time. The Immigration Act 1971, in section 3(1)(b), provides that people not otherwise entitled to enter or remain here may be given leave either to enter or to remain, either for a limited or an indefinite period. Section 3(1)(c) provides that limited but not indefinite leave may be granted subject to conditions. Section 3(3) provides that limited but not indefinite leave may be varied and that any conditions continue to apply during a period of absence from the United Kingdom. Section 3(4), which for the purpose of his argument is the crucial one, provides that a person's leave to enter or remain in the United Kingdom shall lapse on his going to a country outside the common travel area. Hence, the argument is that, when the applicant left the United Kingdom in 1995, his initial indefinite leave to remain lapsed and, when he returned in 1996, he was granted a new leave to enter; and the same happened when he left again in 1997 and returned later that year. The Social Security Commissioner accepted that argument (paragraph 40 of his decision) and rejected an argument that leave to enter as a returning resident is not a fresh grant of leave. So thus far there is common ground between the parties.
221. I now turn to the form of the undertaking. So far as it is material, it reads as follows:

"I hereby undertake that if [the appellant] ... is granted leave to enter or remain in the United Kingdom I shall be responsible for his/her maintenance and accommodation in the United Kingdom, throughout the period of that leave and any variation of it."

222. The argument is that the context of that undertaking was a particular application by the appellant for leave to remain. The reference to "if [the appellant] ... is granted leave" must therefore refer only to leave granted in response to that application. Hence, the undertaking only lasts for the period of that leave and does not apply to any subsequent leave which may be granted. If it did apply to that, the words "any variation of it" would have no purpose. That interpretation is supported by the argument that, because a failure to observe that undertaking might, in certain circumstances, result in criminal liability under section 105 of the Social Security Administration Act 1992, it should be construed as strictly as a criminal statute.
223. The Social Security Commissioner concluded in paragraph 47 of his decision:

".... the undertaking was a continuing one and it applied to leave granted under paragraph 18. The terms of the undertaking are very wide, but clear. They are not limited to a particular application for leave, to a particular grant of leave or to a particular point or period in time. On its wording, the undertaking applies afresh each time leave is granted...."

224. He also rejected the argument for a narrow approach to construction for four reasons:

(1) In his view the undertaking only had one meaning.

(2) Otherwise it would produce an absurd result. Any immigrant sponsored in this way could render an undertaking redundant by taking a day trip to Calais.

(3) There were adequate safeguards for the sponsor in sections 105 and 106.

(4) The undertaking was not in the statute and does not create criminal liability in itself.

225. In my judgment, there is no reason to adopt the narrow construction suggested. The undertaking simply says "if the appellant is given leave." It does not say "if the appellant is given leave in response to the application currently before you". Words would have to be read into it to limit it in that way, whereas no additional words are necessary to give it the meaning given it by the Social Security Commissioner. I acknowledge, of course, that this is the Secretary of State's own wording and is not prescribed by regulations. It could have been put differently, out of an abundance of caution. But that is not the same as saying that it means something different from what it does say.
226. Mr. Nicol made a considerable amount, in answer to the points made by the Commissioner in rejecting a strict approach to construction, of the analogy with an undertaking given to a court, breach of which can be enforced by penal sanctions. This analogy is not exact. Undertakings given to a court are extracted in the context of legal proceedings where other (possibly more draconian or unwelcome) remedies may otherwise be granted. This particular undertaking is in the nature of a contractual promise, freely and voluntarily offered in order to secure a benefit desired by the immigrant. I accept Miss. Lieven's argument that it is unlikely in the extreme that either party to the agreement thought that it could be set at naught by the simple expedient of a short trip outside the common travel area. If it has to be construed in the light of the immigration scheme (and I accept that that is the context in which the undertaking was given), it should be construed in the light of the scheme as a whole; and part of the package involved in granting indefinite leave to remain is the favourable treatment given to people with such leave who do go outside the United Kingdom and return. The Secretary of State's purpose in obtaining the undertaking was to grant indefinite leave to remain, with all its consequences, and that included the right (albeit a qualified right) to go and return under the then paragraph 58 of HC 251.
227. For those reasons, therefore, I would reject this ground of appeal.

2. Was leave to enter given upon the undertaking?

228. The argument here is that the 1997 leave to enter was not granted "upon" the undertaking. It was granted as a returning resident. Paragraph 18 of the Immigration Rules HC 395 provides that a person seeking leave to enter as a returning resident may be admitted if the immigration officer is satisfied that the person:

"(i) had indefinite leave to enter or remain in the United Kingdom when he last left; and

(ii) has not been away from the United Kingdom for more than 2 years; and

(ii) did not receive assistance from public funds towards the cost of leaving the United Kingdom; and

(iv) now seeks admission for the purpose of settlement."

229. It is common ground now, as I have said, that these people are given fresh leave each time, but fresh undertakings are not required of them or their sponsors. Further enquiries are not made. Therefore, it is argued that the fresh grant of leave is not made "upon" the original undertaking and is not in response to that undertaking at all. Indeed, there is some suggestion, despite the use of the word "may" in paragraph 18, that there would be no power to refuse leave and no power to require a further undertaking. The Commissioner decided that he did not have to determine that point.
230. The Commissioner at paragraph 63 of his decision held that the leave to enter was "upon the undertaking" and he stated:

"That is a vague word of wide scope... In this context, it means that when leave is granted an undertaking was in operation in respect of the claimant. In those circumstances, the undertaking 'covered' the grant of leave which was 'supported' by it. It is not necessary for the officer to know of the undertaking or to rely on it when granting leave. The undertaking is a continuing one and it operates automatically each time leave is granted."

231. Mr. Nicol argues in effect that there must be an immediate connection between the undertaking and the grant of leave. How can there be such a connection when the rule does not require such an undertaking and none is looked for or looked at? All that is relevant for the purpose of the rule is the previous grant of indefinite leave to remain. There are other people who have indefinite leave to remain who can take advantage of this rule who will not have a sponsor's undertaking. There are other people with indefinite leave to remain where the circumstances may have changed since that leave was granted. He gave the example of a spouse with indefinite leave to remain who was later widowed or divorced but would still be able to take the benefit of that paragraph. Thus he says that the undertaking is irrelevant for the grant of leave to enter under paragraph 18.
232. The contrary argument is that indefinite leave to remain is a necessary precondition of the grant of leave to enter as a returning resident. The indefinite leave to remain in a case like this was granted because of the undertaking. There is, therefore, a clear cause and effect, not only between the original indefinite leave to remain but also between the indefinite leave to remain and the later grant of leave to enter as a returning resident. Thus, even if "upon" requires a cause and effect relationship, that is fulfilled here. The argument would only suffice if it meant an immediate and proximate cause and effect. The word "upon" is much wider than that.
233. In my view that is correct. The word "upon" suggests a basis or foundation, and that was clearly in existence here. The cause and effect is comparatively straightforward and I would therefore reject this ground of appeal as well.
234. Before leaving the matter, however, I should refer to a particular argument raised by Mr. Nicol. This was that the Secretary of State's position in relation to regulation 21(3)(i) was inconsistent. This was because of the later part of that regulation, defining the five-year period "beginning with the date of entry or the date upon which the undertaking was given in respect of whichever date was the later." The Secretary of State has accepted that the appellant is entitled to benefit since 1999. If the "date of entry" refers to the date in 1997 when leave to re-enter was given, then the Secretary of State has been paying benefit ultra vires since 1999 because the five years have not yet elapsed.
235. It is not entirely clear how this argument assists the appellant's case. The "date of entry" could have one of three possible meanings. The first would be that it referred back to the current leave to enter, with the consequence just stated. The second would be that it referred to an initial date of entry, a date different from that of the current leave to enter. That is the meaning contended for by the Secretary of State, with obviously beneficial consequences to the claimant, and it is the meaning accepted by the Commissioner. A third possibility is that the "leave to enter" to which reference is made at the beginning of paragraph (i) was itself the original leave to enter or the original indefinite leave to remain and thus the same as the "date of entry" referred to at the end of paragraph (i).
236. The Commissioner appears to have rejected that interpretation. Miss. Lieven is not anxious to assert it; nor, for that matter, would Mr. Nicol be anxious to assert it, because there can be no doubt that that initial grant of indefinite leave to remain was "upon" the undertaking. So we are left with an argument which does not appear to assist us greatly in the interpretation of the regulation, and the answer to which is not directly before us because neither party wishes us to answer it directly. I, for my part, would not wish to express any view at all upon which of those three possible interpretations is correct. I am very conscious of the fact that in social security legislation there are so many inter-related complexities that, if one expresses a view on a point upon which one is not required to express a view, one risks doing untold harm to untold claimants, to the Secretary of State and indeed to tribunals and commissioners who are much more familiar with the complexities of the scheme than I could ever be.
237. For the reasons I have expressed, the argument does not, to my mind, assist Mr. Nicol at all. In fact the whole argument under regulation 21(3)(i) appears to be standing the purpose of paragraph 18 on its head. The Secretary of State does not require further enquiries and a further undertaking because he is still relying upon the earlier one. If he were not doing so, any prudent Secretary of State would have to make fresh enquiries and seek a fresh undertaking each time a resident with indefinite leave to remain returned to this country. Life would become extremely difficult and embarrassing for all returning residents. It would be doing them no favours at all to expect more enquiries to be made at airports and other ports of entry on this basis.
238. For those reasons I reject this ground of appeal.

3. Is the regulation ultra vires?

239. Regulation 8 of the 1996 regulations must have been made, it is common ground, under section 135(1) of the Social Security Contributions and Benefits Act 1992 which reads:

"The applicable amount, in relation to any income- related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit."

240. Related to sub-section (1), however, is sub-section (2):

"The power to prescribe applicable amounts conferred by subsection (1) above includes the power to prescribe nil as an applicable amount."

241. One can quite see how, in regulations which concern benefits necessary for minimum subsistence, it might otherwise be difficult to justify regulations providing that certain categories of people should have no entitlement and thus be denied the safety net of state benefits altogether.
242. The argument here is that the social security legislation should be construed as a whole. It was all consolidated in 1992. By amending the prescribed requirements for sponsored immigrants, the regulations deprived sections 105 and 106 of the Social Security Administration Act 1992 of all relevant effect. If no income support is ever payable, then it cannot be a criminal offence to fail to maintain so that it does become payable. If no income support is ever payable, then none can be recouped under section 106. This is primary legislation and secondary legislation should not be used to deprive it of any effect.
243. The Commissioner put the argument this way in paragraph 138:

"The issue for me is whether the immigrant's entitlement to income support was entrenched by virtue of sections 105 and 106 so that only primary legislation could remove it."

244. The Commissioner agreed that the scheme is to be read as a whole. But he pointed out, first, that these are two different consolidation acts. One deals with entitlement to benefits and the other deals with administration. Secondly, the policy underlying both of them, and the 1996 amendments, was that the cost of maintaining sponsored immigrants should not fall upon the state. The liable relative provisions tried to recoup those benefits from liable relatives. Later amendments withheld the benefit altogether, but they were not inconsistent in policy terms. Thirdly, the 1992 provisions may have been based on the assumption that benefit would be payable, but an assumption does not give rise to entitlements, let alone to entrenched rights.
245. One might also comment that the relevant provision are not sections 105 and 106 of the Social Security Administration Act 1992, because they have plenty of purpose, quite apart from sponsored immigrants. Historically they have been used to enforce the obligations of spouses to maintain one another and obligations of parents to maintain their minor children. The argument must be that the regulations deprived section 78(6)(c) of that Act of effect. That is the provision which added immigrants' sponsors to the list of liable relatives.
246. In my view, the answer to this argument is simple. Entitlement to income support depends on section 124(1) of the Social Security Contributions and Benefits Act 1992 which sets out four conditions that must be fulfilled for the person to be entitled. Those conditions are, for relevant purposes, to be prescribed by regulations. Power to prescribe by regulations is contained in section 135. I have already quoted section 135(1) and (2). As I have already said, one could quite see why, if section 135(2) were not there, the courts might be disinclined to permit the Secretary of State to use this regulation-making power to deprive people of all entitlement to minimum subsistence. But it is there and it is clear that that is what it does. To use a scheme involving ancillary powers, not directly related to the qualifications for entitlement, to hold that the Secretary of State cannot use the regulations in a way which is clearly contemplated by the enabling powers seems to me to be taking the arguments far too far.
247. I would therefore hold that the regulations were not ultra vires and I would reject this ground as well.
248. LORD JUSTICE MUMMERY:

I agree that this appeal should be dismissed for the reasons given by Lady Justice Hale. I only wish to add short comments on the two principal questions of construction.

249. First, on the construction of the undertaking, the maintenance undertaking dated 6 December 1993 was given "in pursuance of Immigration Rules". The form of the undertaking is not prescribed by the Immigration Rules. The undertaking is a voluntary conditional promise given by Mr. Hameed Shah in relation to his uncle, Mr. Mohammed Shah. The promise became unconditional and contractually binding on Mr. Hameed Shah when his uncle was granted indefinite leave to enter and remain in the United Kingdom on 16 June 1994. The duration of the undertaking depends on the application of the rules for the construction of contracts, seen, of course, in the setting of the Immigration legislation.
250. The rules of construction require one first to look at the language of the undertaking. The undertaking is expressly stated to endure "throughout the period of that leave, or any variation of it". "That leave" clearly refers to the indefinite leave to enter and remain which was granted. As the leave was granted for an indefinite period, so the linked undertaking was similarly of indefinite duration.
251. When Mr. Mohammed Shah was admitted to the United Kingdom as a returning resident in March 1996 and in July 1997, it was on the basis of the prior indefinite leave granted on 16 June 1994. On those occasions of re-entry nothing was expressly or impliedly said or done which operated to curtail the indefinite duration of the promissory undertaking given in connection with the earlier grant of indefinite leave. As Mr. Mohammed Shah relied on the indefinite leave originally granted as a basis for returning to the United Kingdom from overseas, so the Secretary of State was entitled to rely on the linked promissory undertaking. The undertaking remained contractually cemented to the original indefinite leave to re-enter. Whatever further leave was required and given to Mr. Mohammed Shah as a returning resident on subsequent occasions, the original indefinite leave to enter and remain remained an essential pre-condition for obtaining subsequent leave to enter as a returning resident under the provisions of rule 18(1) of the Immigration Rules HC 395.
252. Second, concerning the construction of the regulations, the relevant regulations are the Income Support (General) Regulations 1987. My Lady has already read from the provisions of regulation 21(3), which contains definitions of the expression "person from abroad" and, in particular, the terms of the definition in regulation 21(3)(i). Mr. Mohammed Shah was a person from abroad within the meaning of regulation 21(3)(i) because he had been given leave to enter and remain in the United Kingdom. That leave was given "upon an undertaking" given by Mr. Hameed Shah on 6 December 1993. The word "upon" simply indicates, in my judgment, a temporal causal connection between the giving of the leave to enter and remain and the giving of the undertaking in connection with it. That causal connection might be direct and immediate (as it was in June 1994); it might also be indirect in order to satisfy the requirements of Immigration Rule 18(1) HC 395 (as in the case of 1997).
253. I agree with my Lady's judgment on the further question raised as to payments by the Secretary of State under regulation 21(3)(i), and, like her, I expressly say that no decision is made on it. It is not an issue on this appeal.
254. I agree with the reasons given for rejecting Mr. Nicol's arguments on the ultra vires point.
255. I would, for these reasons, also dismiss the appeal.
256. LORD JUSTICE PILL:

I also agree that the appeal should be dismissed. I agree with Lady Justice Hale in her conclusions on each of the three issues. I also agree with Lord Justice Mummery's stress upon the importance of a contractual approach to the undertaking which was given. The undertaking had a continuing effect, notwithstanding the temporary departures of Mr. Mohammed Aziz Shah from the United Kingdom and his subsequent re-entries. It would still have been effective, but for the statutory alleviation introduced into regulation 21(3)(i) of the Income Support (General) Regulations 1987. It had the effect of narrowing the definition of the expression "persons from abroad" in schedule 7, to whom the Secretary of State does not pay income support, as explained by Lady Justice Hale.

257. The introduction of the five-year period mentioned in the sub-paragraph followed the Government's response to the Social Security Advisory Committee Report 1996. Paragraph 47 indicates a part of the Government's response to two proposals and provided:

"For these reasons the Government have decided that if a sponsorship breaks down after a period of five years from the date when the arrangement was made, the sponsored immigrant should then be entitled to the full range of benefits so long as they [sic] fulfil the appropriate entitlement conditions. This concession will be made regardless of whether the sponsored immigrant eventually applies for naturalisation in the UK."

258. Regulation 21(3)(i), as applicable at the material time, provides:

"...'person from abroad' means a person who ––

(i) has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking given by another person or persons in writing in pursuance of immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation; and he has not been resident in the United Kingdom for a period of at least 5 years beginning from the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later."

259. It is implicit in the Commissioner's reasoning, though not stated in terms in that reasoning, that, for the purposes of construing the expression "upon an undertaking" in that paragraph, the relevant entry is the most recent occasion on which leave to enter has been given. However, the Commissioner went on to hold that the five-year period referred to in the sub-paragraph begins upon the initial entry. In doing so, he referred to the "day trip in France" point which Miss. Lieven has relied on to defeat the argument of Mr. Nicol QC for the appellant.
260. As to the five-year period, the Commissioner concluded in paragraph 68:

"So my conclusion is that the five-year period begins to run as follows. If the claimant was given leave to enter the United Kingdom before an undertaking was given the relevant date is the date of the undertaking. If the undertaking was obtained before the claimant entered the United Kingdom the relevant date is the date of entry under paragraph 317 of the immigration rules."

261. The Secretary of State has been applying the Income Support Regulations in that sense. Income support has been paid to Mr. Mohammed Aziz Shah since June 1999; that is, the fifth anniversary of the first grant of indefinite leave to remain.
262. On behalf of the claimant, Mr. Nicol submits that the relevant date for the purpose of considering whether the entry was upon an undertaking is the most recent date of entry; that is, the date in 1997. Miss. Lieven for the Secretary of State does not dissent from that view, and the case has largely been argued before the court on that basis, although an alternative view was put to counsel for the purposes of argument.
263. I should not wish to leave the case without some comment upon that construction of regulation 21(3)(i) upon which the case has been argued by counsel. Mr. Nicol has rightly, in my view, referred to a possible inconsistency in the approach of the Secretary of State accepting the view he has on the five-year period while accepting that the relevant date of entry for the purpose of the sub-paragraph is the later date. I have difficulty in accepting that the date contemplated in the second part of the sub-paragraph is different from the date contemplated in the first. Argument on the point has, for the reason I have given, been limited but it appears to me strongly arguable that the expression "the date of entry or the date on which the undertaking was given" refers to the date of "leave to enter or remain upon an undertaking" stated in the first part of the paragraph. The five-year period began, on that argument, upon the grant of indefinite leave to remain after the undertaking was given. So much the Secretary of State accepts and has operated in practice. He has not accepted, however, that the two expressions refer to the same date, but has made the admission to which I have referred.
264. In my view, it is at least arguable that the leave referred to at the beginning of the paragraph is the June 1994 leave and not the 1997 leave. Once that situation has arisen, the five-year period begins to run, and it is on that basis that income support has subsequently been paid. I refer to the point, not to decide it but on the basis that to leave it without comment may lead to further problems arising out of the inconsistency to which Mr. Nicol has drawn attention. I wish to leave open the point that the date contemplated in the whole of the paragraph is the date on which the initial leave to enter or to remain for an indefinite period was granted.
265. It is clear that different commissioners have different views on that subject. The Commissioner in the present case has referred to the view of a commissioner in a different case that one of the relevant questions is: "Had the claimant at any time been given leave to enter or to remain in the United Kingdom?" The effect of the alternative reasoning, if correct, would be that the Secretary of State was obliged to pay income support to Mr. Mohammed Aziz Shah as from June 1999. He would, on that construction, clearly be empowered to make the payments he has in fact been making.
266. Mr. Nicol has been right to argue the inconsistency. But, in my judgment, it does not help his argument. I have expressed agreement with the conclusion of Lady Justice Hale that, even taking the later date, the entry should be held to be upon the earlier undertaking. If the earlier date is the relevant date, the argument that the entry was upon the undertaking is considerably stronger.
267. For the reasons given by Lady Justice Hale and for the reasons I have given, I too would dismiss this appeal.

Order: Appeal dismissed; usual legal aid order for claimant's costs; leave to appeal refused. (Order not part of approved judgment.)