Upper Tribunal (Administrative Appeals Chamber)

You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> FK v HMRC [2009] UKUT 134 (AAC) (14 July 2009)
URL: http://www.bailii.org/uk/cases/UKUT/AAC/2009/134.html
Cite as: [2009] UKUT 134 (AAC)

[New search] [Printable RTF version] [Help]

FK v HMRC [2009] UKUT 134 (AAC) (14 July 2009)
Benefits for children
child benefit

Decisions of the Upper Tribunal
(Administrative Appeals Chamber)

As the decisions of the Manchester appeal tribunal (held on 30 September 2008 under references 946/08/02469 and 03763 ) involved the making of an error in point of law, they are SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decisions are RE-MADE. The decisions are:

The claimant is treated as having made a claim for child benefit on 30 November 2000.

The claimant is treated as having made a claim for a tax credit on 1 August 2002, the earliest date for claiming a credit. The first date of entitlement is 6 April 2003: article 2 of the Tax Credits Act 2002 (Commencement No 1) Order 2002 (SI No 1727).

I refer to Her Majesty's Revenue and Customs the issue whether the claimant satisfied the other conditions of entitlement to an award of either benefit, including any issue of reduction in the arrears of tax credit under regulation 3(9) of the Tax Credits (Immigration) Regulations 2003.

Reasons for Decision

A. The issue

A claimant who has claimed asylum is subject to immigration control and is not entitled to either child benefit or tax credit. However, a claimant who is granted asylum may be treated as making a claim for those benefits on the date of the claim for asylum. The issue in these cases is: is the date of claim for asylum (i) the date of the claim that has succeeded or (ii) the first date of claim? My answer in these cases is (ii).

B. History and background

The claimant and her three children came to the United Kingdom from Pakistan on 30 November 2000. She made, or was treated as making, three claims for asylum.

• The first claim was made immediately on arrival. This was refused on 29 March 2001 and her appeal against the decision was dismissed on 25 April 2003.

• She was treated as making a new claim under the family amnesty scheme on 24 January 2005, but was ineligible under this scheme.

• She claimed asylum again on 10 December 2005 relying on new evidence. She was granted asylum on 3 July 2007 and given limited leave to remain for five years.

She received support from the National Asylum Support Service from 11 January 2001 to 8 August 2007, except for a period when she was employed (from 9 September 2002 to 12 March 2004).

She submitted claims for child benefit on 7 August 2007 and for tax credit on 8 August 2007. Benefit was awarded on both claims. Child benefit was awarded from 12 December 2005 and tax credit was awarded from 10 December 2005.

The claimant exercised her right of appeal against both decisions, arguing that entitlement should date from her arrival in the United Kingdom, when she had first claimed asylum. The tribunal heard the appeals together, but dismissed them. I gave the claimant permission to appeal and Mr Eland, on behalf of the Commissioners for Her Majesty's Revenue and Customs, has supported the appeals. I am grateful to him for his clear and thorough submission. Neither the claimant nor her representative has replied to that submission.

C. The legislation

The normal rules for the effective date of an award of benefit do not apply if a claimant is granted asylum.

For child benefit, the relevant provision is regulation 6 of the Child Benefit and Guardian's Allowance (Administration) Regulations 2003 (SI No 492) as amended. Regulation 6(1) contains the basic rule, but regulation 6(2) and (3) makes special provision for refugees:

'(2) Paragraph (1) shall not apply where-

…

(d) a person who has claimed asylum and, on or after 6th April 2004, makes a claim for that benefit [child benefit] or allowance and satisfies the following conditions-

(i) the person is notified that he has been recorded as a refugee by the Secretary of State; and

(ii) he claims that benefit or allowance within 3 months of receiving that notification.

(3) In a case falling within paragraph (2)(d) the person making that claim shall be treated as having made it on the date when he submitted his claim for asylum.'

For tax credits, the relevant provision is regulation 3 of the Tax Credit (Immigration) Regulations 2003 (SI No 653):

'(5) If that person-

(a) is notified that he has been recorded by the Secretary of State as a refugee, and

(b) claims tax credit within 3 months of receiving that notification,

paragraphs (6) to (9) and regulation 4 shall apply to him.

(6) He shall be treated as having claimed tax credits-

(a) on the date when he submitted his claim for asylum, and

(b) on every 6th April (if any) intervening between the date in sub-paragraph (a) and the date of the claim referred to in paragraph (5)(b),

rather than on the date on which he makes the claim referred to in paragraph (5)(b).

(7) Regulations 7 and 8 of the Tax Credits (Claims and Notifications) Regulations 2002 shall not apply to claims treated as made by virtue of paragraph (6).

(8) He shall have his claims for tax credits determined as if he had been recorded as a refugee on the date when he submitted his claim for asylum.'

In each case, the issue arises: to which 'claim for asylum' does the legislation refer?

D. Analysis

Mr Eland begins with the indisputable fact that a grant of asylum is a recognition of the claimant's status as a refugee. It does not confer that status. In R(IS) 9/98, Mr Commissioner Howell (as he then was) described the argument that the status was conferred by the grant of asylum as 'callous and unprincipled nonsense.' A person is a refugee from the moment that the conditions set out in international law by the Convention relating to the Status of Refugees 1951 are satisfied. The domestic claim process merely provides the mechanism by which that status is identified.

From there, Mr Eland argues that the evidence that finally establishes the claimant's status is irrelevant. It matters not whether it is provided with the initial claim for asylum or only becomes available later and is used in support of a new claim. For the purposes of the domestic adjudication process, it may be appropriate to treat the claimant as making separate claims for asylum. However, the State's duties in international law arise in respect of refugees. It follows that those duties arise with retrospective effect once a person's status as a refugee is established.

In respect of social security, the Convention provides:

'Article 24. Labour legislation and social security

1. The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters:

…

(b) Social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:

(i) There may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;

(ii) National laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension.'

The only way that the State can honour that obligation is to provide that claimants' ultimate entitlement to social security benefits is not affected by the delay in recognising their status. There is a presumption that legislation should give effect to the State's obligations under international law. The reference to the 'claim for asylum' is ambiguous and must be interpreted to bring British law into line with the requirement of the Convention. Accordingly, in this case those words refer to the claim for asylum made by the claimant on her arrival in the United Kingdom, as Mr Eland argues.

It is possible that a claimant's refugee status may depend on events that occurred after the initial claim for asylum. If that were so, the status would only exist from that later date. That, however, is not what has happened in this case.

E. Disposal

I accept Mr Eland's submissions and allow the appeals. My decision is limited to the issue raised by the appeal, as authorised by the Tribunal of Commissioners in R(IS) 2/08. I have referred to Her Majesty's Revenue and Customs the others issues of entitlement.

Signed on original
on 14 July 2009

Edward Jacobs
Upper Tribunal Judge