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Cite as: [2013] UKUT 433 (AAC)
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HB v Secretary of State for Work and Pensions (IS) [2013] UKUT 433 (AAC) (06 September 2013)
European Union law
discrimination by nationality
IN THE UPPER TRIBUNAL Appeal No: CIS/3416/2011
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge Ward
Upper Tribunal Judge O’Connor
Upper Tribunal Judge Wright
DECISION
The Upper Tribunal disallows the appeal of the appellant.
The decision of the First-tier Tribunal sitting at Fox Court on 19 April 2011 under reference 160/10/00693 did not involve any material error on a point of law and is not set aside.
This decision is made under section 11 of the Tribunals, Courts and Enforcement Act 2007.
REASONS FOR DECISION
Introduction
1. This appeal is concerned with the change in the law which on 14 June 2007 abolished backdating of income support for refugees. We will refer to this as the “backdating rule”. It was contained in regulation 21ZB of the Income Support (General) Regulations 1987/1967 (“regulation 21ZB”). The argument made on behalf of the appellant is that that change in the law is contrary to the law of the European Union and breaches her human rights.
2. It is our clear judgment that the change in the law that abolished the backdating rule does not offend against EU law or breach the appellant’s human rights. In short, article 28 of Directive 2004/83/EC (the “Qualification Directive”) does not require the United Kingdom to provide income support to a refugee for the period prior to the decision recognising her refugee status even once such a decision has been made, and if the removal of the backdating rule did discriminate against the appellant (pursuant to article 14 of the European Convention on Human Rights when read with article 1 of the First Protocol to that Convention) it is justified.
3. The core of the appellant’s argument before us relied on article 28 of the Qualification Directive. Although we shall return to it later, it is as well to set out the terms of the article as it is central to much of what is said below. Article 28 is headed Social welfare and provides that:
“Member States shall ensure that beneficiaries of refugee or subsidiary protection status receive, in the Member State that has granted such statuses, the necessary social assistance as provided to nationals of that Member State.”
In a nutshell, the appellant’s argument is that this article conferred on her a right to be paid income support (the necessary social assistance) not only from the point she was granted refugee status but also for the past period(s) when she was a refugee (once recognised by the subsequent grant of refugee status).
4. Given the importance and potential complexity of the issues arising on the appeal the Chamber President of the Administrative Appeals Chamber of the Upper Tribunal appointed a Three Judge Panel of the Upper Tribunal to hear and decide the appeal. To address the cross-over between refugee law and social security law, the panel was made up of two judges of the Administrative Appeals Chamber (Judges Ward and Wright) and one from the Immigration and Asylum Chamber (Judge O’Connor).
5. The appeal was subject of a hearing over two days on 8 and 9 July 2013. The appellant was represented by Mr Berry and Mr Rutledge of counsel, instructed by Hackney Community Law Centre. The respondent was represented by Ms Stout of counsel, instructed by the solicitor to the Department for Work and Pensions.
6. The hearing had taken a considerable time to come on because of difficulties the appellant has had in securing public funding for legal representation under the exceptional cases provisions. Although matters had progressed by time of the hearing before us this was only to the extent of the Legal Aid Agency having decided to recommend to the Ministry of Justice that exceptional funding be granted; but the final decision to grant such funding had not been made by the Ministry of Justice. We repeat the concerns of our colleagues (then social security commissioners) in R(H)3/05 as to the time it takes such applications to be assessed and finally determined. The consequence of the delay in this case is that Mr Berry and Mr Rutledge had to represent the appellant not knowing whether they would be recompensed for their work. That cannot be a satisfactory state of affairs.
7. As it was both Mr Berry and Mr Rutledge felt able to represent the appellant and we are grateful them and to Ms Stout for the submissions made to us.
Relevant Factual Background
8. The facts are not in dispute and we can therefore take them very shortly.
Asylum claim and refugee status
9. The appellant claimed asylum on her arrival in the UK in August 1997. There was some dispute before us as to whether the effective claim for asylum was this claim or a second claim for asylum made by the appellant in 2005. For the purposes of this appeal whichever is the correct date is irrelevant as both claims for asylum fell before the abolition of the backdating rule; and, in any event, the asylum claim(s) was not decided in the appellant’s favour by the Asylum and Immigration Tribunal and her refugee status recognised by the Secretary of State until June/July 2008 (thus after the abolition of the backdating rule). Even on the appellant’s own argument the State’s act of recognising or granting refugee status is a key step that must have been obtained.
10. Thus the critical facts in terms of the asylum adjudication are: (i) that the claim for asylum was made in 1997 or 2005, (ii) in June 2008 the Asylum and Immigration Tribunal allowed the appellant’s appeal on refugee convention grounds (due to her religious faith), (iii) following this on 9 July 2008 the appellant was “recognised by the Secretary of State as a refugee as defined by the 1951 Geneva Convention relating to the Status of Refugees and its Protocol”, and (iv) on the same date she was given limited leave to remain in the UK.
Income Support Claim
11. Following the recognition of her refugee status and the grant of limited leave to remain in the UK, on 24 July 2008 the appellant made a claim for income support. This was seemingly awarded to her from 19 July 2008. (Why this was the date instead of 9 July 2008 was not clear to us. However, apart from the arguments on the backdating rule, no point was taken as to the correct starting date for the appellant’s entitlement to income support). The appellant asked that the claim be backdated. There are a number of different dates given for when she was seeking backdating to. The claim form, oddly, gives a backdating date of 22 August 2008 (page 7). In her appeal letter the appellant seemed to ask for backdating to 2005, when she made her second application for asylum. The Secretary of State’s decision refusing to backdate – the decision that was under appeal to the First-tier Tribunal and thus is on appeal to the Upper Tribunal – was made on the basis that the request for backdating was for the period 12 September 2006 to 18 July 2007. In her previous representative’s argument to the First-tier Tribunal the backdating date was given as 2 September 2007 (page 72) and on appeal to the Upper Tribunal it was argued that she was entitled to have her income support claim backdated to 29 August 1997 (the date of her first claim for asylum in the UK).
12. For the purposes of the arguments before us it does not matter which of these dates is correct, though in terms of regulation 21ZB it may be that the date of the second claim for asylum in 2005 is the operative date. This is because the first claim for asylum was made by the appellant in August 1997 but the terms of regulation 21ZB only applied where the person “ha[d] submitted a claim for asylum on or after 3rd April 2000”; so it may be that any remedy of backdating could only have gone back to the 2005 asylum application.
13. The critical point, however, and one which is not disputed, is that by the time the appellant made her claim for income support the backdating rule in regulation 21ZB had been repealed. Moreover, it is also accepted by the appellant that as a matter of UK domestic law she could not have her claim for income support backdated to any period before 19 July 2008. The domestic law here includes the Human Rights Act 1998 as it is accepted that even if the appellant’s human rights had been breached the most in terms of remedy that she could achieve is a declaration of incompatibility (per section 4 of the Human Rights Act 1998). It is further accepted that such a declaration cannot be made by the Upper Tribunal (see s. 4(5) of the Human Rights Act 1998); and so this “remedy” for human rights breaches (even if found) would have to await an appeal from the Upper Tribunal to the Court of Appeal.
First-tier Tribunal
14. The appeal to the First-tier Tribunal traversed a number of areas that were not canvassed before us. It is also fair to say that the main focus of the argument before the First-tier Tribunal was on the human rights arguments. The appeal was heard by District Tribunal Judge Desai on 19 April 2011. In her reserved decision of 26 July 2011 Judge Desai dismissed the appeal. She held that income support had correctly been awarded from 19 July 2008 and that the law did not allow for income support to be awarded to the appellant for any period prior to this date.
15. On the human rights arguments, Judge Desai held that if there was any discrimination under article 14 of the European Convention on Human Rights (“the Convention”) it was justified, and in any event even if it was not justified the First-tier Tribunal could not provide any remedy to the appellant.
16. Judge Desai also addressed article 28 of the Qualification Directive. She said that under article 2 of that Directive a distinction was drawn between a “refugee” and “refugee status”, with the latter meaning “the recognition by a Member State of a third country national or a stateless person as a refugee”. On the basis of this Judge Desai ruled that UK law was compliant with the Qualification Directive because “the Directive provides for the provision of social assistance to the beneficiaries of the refugee status and not to refugees….[and] once the person has been granted asylum [they] are entitled to income support in the same way as a British Citizen”. As will appear from what we say below, in essence we consider that analysis to be correct.
Permission to Appeal
17. Judge Desai refused permission to appeal on 20th October 2011. However, on the renewed application for permission to appeal Judge Ward gave permission on the basis that:
“it is arguable with a realistic possibility of success, bearing in mind in particular recitals (2) and (14), that Council Directive 2004/83/EC on its true construction requires a Member State to provide “the necessary form of social assistance, as provided to nationals of that Member State” not only from that date of recognition as a refugee but (once established as such through such recognition) from the date of application for asylum.”
Judge Ward added:
“[i]f there were to be a human rights point, I am not presently convinced that there is any relief that the Upper Tribunal could give. However, the permission is not a limited one, as it is possible that the matter may go further.”
The Law
18. We set out first the relevant domestic law relating to the backdating rule. It is uncontentious. We address the rest of the law (e.g. the Qualification Directive) in the course of our consideration of the arguments on the appeal.
19. It was the Asylum and Immigration Act 1996 that first dealt with the backdating rule. Section 11(1) and (2) of that Act provided:
“11(1) Notwithstanding any enactment or rule of law, regulations may exclude any person who has made a claim for asylum from entitlement to any of the following benefits, namely—
(a) income support, housing benefit and council tax benefit under the Social Security Contributions and Benefits Act 1992;
(b) income support and housing benefit under the Social Security Contributions and Benefits (Northern Ireland) Act 1992; and
(c) jobseeker’s allowance under the Jobseekers Act 1995 or the Jobseekers (Northern Ireland) Order 1995.
(2)Regulations may provide that, where such a person who is so excluded is subsequently recorded by the Secretary of State as a refugee within the meaning of the Convention—
(a) that person may, within a prescribed period, claim the whole or any prescribed proportion of any income support, housing benefit or council tax benefit to which he would have been entitled had he been recorded as a refugee immediately after he made the claim for asylum; and
(b)where he makes such a claim as is mentioned in paragraph (a) above in respect of housing benefit or council tax benefit having resided in the areas of two or more local authorities in Great Britain, the claim shall be investigated and determined, and any benefit awarded shall be paid or allowed, by such one of those authorities as may be prescribed.”
20. Section 11(2) of the Asylum and Immigration Act 1996 was repealed and replaced by section 123 of the Immigration and Asylum Act 1999, which provided, most relevantly, as follows:
“123(1)This section applies if—
(a)a person is recorded by the Secretary of State as a refugee within the meaning of the Refugee Convention; and
(b)before the refugee was so recorded, he or his dependant was a person to whom section 115 applied.
(2)Regulations may provide that a person mentioned in subsection (1)(b) may, within a prescribed period, claim the whole, or any prescribed proportion, of any benefit to which he would have been entitled had the refugee been so recorded when he made his claim for asylum.”
21. It was pursuant to these powers that regulation 21ZB was made. This provided
“21ZB.—(1) This paragraph applies to a person who has submitted a claim for asylum on or after 3rd April 2000 and who is notified that he has been recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967.
(2) Subject to paragraph (3), a person to whom paragraph (1)
applies, who claims income support within 28 days of receiving
the notification referred to in paragraph (1), shall have his claim
for income support determined as if he had been recorded as a
refugee on the date when he submitted his claim for asylum.
(3) The amount of support provided under section 95 or 98 of the
Immigration and Asylum Act, including support provided by virtue
of regulations made under Schedule 9 to that Act, by the Secretary
of State in respect of essential living needs of the claimant and his
partner (if any) as specified in regulations made under paragraph
3 of Schedule 8 to the Immigration and Asylum Act shall be
deducted from any award of income support due to the claimant
by virtue of paragraph (2).”
22. These provisions were removed, however, with effect from 14th June 2007 by section 12 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, which provides, so far as is relevant for this appeal:
E+W+S+N.I.
“12(1)Section 123 of the Immigration and Asylum Act 1999 (back-dating of benefits for refugees) shall cease to have effect.
(2)Accordingly (and without prejudice to any other implied repeal, revocation or amendment) the following (each of which concerns the treatment of refugees) lapse—
(a)in the Income Support (General) Regulations 1987—
(i)regulation 21ZB….”
Section 13 of the same Act also introduced the power for the Secretary of State to set up an integration loans scheme for refugees.
23. It is the effect of section 12 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 which the appellant says runs contrary to article 28 of the Qualification Directive and breaches her human rights. However, she accepts that the position in domestic law – leaving aside EU and human rights law - clearly and lawfully precludes her from being entitled to and awarded income support for the period before 19 July 2008; or, more pertinently, for the period before she was recognised as a refugee.
24. We were provided with a number of materials on behalf of the appellant that it was said informed the basis for the change in the law to remove the automatic backdating of income support for refugees. Save perhaps for the issue of justification for any discrimination found under article 14 of the Convention (on which we heard no detailed argument), these materials are irrelevant to what EU law, and article 28 of the Qualification Directive in particular, requires.
25. Likewise, Mr Berry for the appellant placed some considerable emphasis on the fact that the UK (a) had in the past awarded backdated income support to refugees (which he said showed the UK conforming with EU law), and (b) had, in the past (including at an earlier stage in these proceedings), sought to argue that equivalent support was being provided for the past period (i.e. prior to refugee status being recognised), which was an argument that, so it was argued, proceeded on the UK seemingly accepting that article 28 of the Qualification Directive had, what we have termed, “retroactive” effect. However, these considerations are irrelevant in our view, or at least are of marginal relevance only, as the issue we have to decide is what is the legal effect of article 28 and what view the UK took of the effect of article 28 cannot be determinative of what the correct legal position is.
Assessment of Arguments
26. We shall take each of the appellant’s two arguments in turn.
EU Law and the Geneva Convention
27. The argument relating to EU law was the main focus of the submissions before us. We shall tease out its detail as we go along. In essence the appellant argued that as (per R(IS)9/98 and Khaboka [1993] Imm AR 484) her recording as a refugee on 9 July 2008 merely declared her to be a refugee for all the past periods when she fulfilled the refugee criteria in the Geneva Convention, once her refugee status was recognised or granted this provided the gateway for her to access social assistance benefits on an equal basis with UK nationals for the past periods when she was a refugee.
28. We do not doubt that the first part of the argument is correct as matter of general refugee law. However, whether that status can stretch back so as to access other legal entitlements has to depend upon the terms of international legal instruments under which those entitlements are conferred and their enforceability.
29. The foundation of the appellant’s argument, as we have already said, was article 28 of the Qualification Directive. We shall turn to the relevant parts of that directive shortly. However, before doing so we need to consider the 1951 Geneva Convention relating to the Status of Refugees and its Protocol (“the Geneva Convention”). This is for three, related reasons.
(i) First, because as we understood it the appellant’s argument was that if the Geneva Convention was directly justiciable in the UK (it is not – see R –v- Khan [1997] AC 558 and R(IS)9/98 at para. [25]) or had direct effect in the UK (it does n0t – see R -v- Lyons [2002] UKHL 44 at para. [13]), article 23 of the Geneva Convention would require the UK to pay, here, income support for the past periods when the appellant was a refugee under the Geneva Convention. In other words, if it was directly applicable in UK law article 23 of the Geneva Convention would have, so the appellant argues, the same legal effect as article 28 of the Qualification Directive.
(ii) Second, because the Qualification Directive seeks to amount to a “full and inclusive application” of the Geneva Convention: see recital (2) to that Directive.
(iii) Third, because the Geneva Convention can be used as an aid to interpret the Qualification Directive and the EU Treaty law it is made under.
30. We turn then to the terms of article 23 of the Geneva Convention. It is titled public relief, and states that:
“The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals”.
This “same treatment” provision, however, only applies to a refugee lawfully staying in the UK.
31. The Supreme Court in R(ST) –v- Secretary of State for the Home Department [2012] UKSC 12; [2012] 2 AC 135, has addressed what is meant by the phrase “refugee lawfully in their territory”, albeit in the context of the non-expulsion protection found in article 32(1) of the Geneva Convention. Neither of the parties suggested to us that the Supreme Court’s reasoning was not equally applicable to article 23 and the phrase “lawfully staying”. We consider that the decision in ST is directly applicable to article 23 of the Geneva Convention as the key focus in ST was on what was meant by the word “lawfully” rather than “staying” or “in”, and the word “lawfully” equally qualifies the word “refugee” in article 23 of the Geneva Convention.
32. What ST decides is that “lawfully”, as the head-note in the official report accurately records, means what was to be treated as lawful according to the domestic law of the contracting state, and that under UK domestic law a refugee, whether or not physically present, was only lawfully in, or staying in, the UK once she had been granted leave to enter or remain here: per section 11(1) of the Immigration Act 1971.
33. In this case the appellant was not given leave to remain in the UK until 9 July 2008. At first blush it would seem therefore that her right to the same treatment with respect to public relief and assistance under article 23 of the Geneva Convention (assuming for the sake of the argument that article 23 is a directly applicable part of UK law), only accrued on and from that date because prior to 9 July 2008 she was not a refugee lawfully staying in the UK.
34. The appellant’s counter argument to this straightforward reading of the scope of article 23 mirrors her argument under article 28 of the Qualification Directive. It is founded on the proposition that a person is a “refugee” – per article 1A(2) of the Geneva Convention (as amended by the 1967 Protocol, (Cmnd 3906)), and R(IS)9/98 and Khaboka – for all past times she has met the conditions for being a refugee, the recognition of her refugee status is therefore no more than a declaratory act, and therefore once lawfully staying in the UK her right to public relief and assistance (here, income support), arises retroactively for all periods when she was a refugee. Otherwise, so it is argued, the Geneva Convention would wrongly limit the rights as a refugee to the point of the grant of such status thus making the grant of such status the legally determinative act.
35. We do not accept this argument. There are a number of problems with it. The key factor, it seems to us, is that the argument starts by wrongly conflating the recognition of refugee status with other rights that might flow from the act of recognition.
36. The first problem with the argument is the actual wording of article 23 of the Geneva Convention, which must be the correct starting point. That says that the UK must accord the same treatment with respect to public assistance (i.e. income support) to refugees lawfully staying in the UK as is accorded to UK nationals. On the face of it the trigger here is the decision making the refugee’s stay in the UK lawful. That here was on 9 July 2008. As a matter of language, even as a refugee, prior to this date the appellant was not lawfully staying in the UK. The appellant’s argument in effect ignores the words “lawfully staying”, or accords to them the same declaratory legal effect as “refugee” which is simply inconsistent with the domestic law on when a person is granted leave to enter or remain and thus becomes someone who is lawfully staying in the UK.
37. The second problem with the argument is that it ignores the, as we see it, deliberate distinction made in the Geneva Convention in respect of rights guaranteed by that convention between a “refugee” in a contracting state and a “refugee lawfully [staying] in” a contracting state. A similar distinction is also drawn in the Qualification Directive between a “refugee” and “refugee status”.
38. For example, under article 22 of the Geneva Convention the UK “shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education”, with no need for the refugee to be lawfully in the UK. Given the Khaboka and R(IS)9/98 thesis, this may have the effect that the children of a person claiming to be a refugee have a right (assuming, again, for the sake of argument that this article is directly applicable in UK law) to school age education during the period the refugee claim takes to be determined. However, by way of contrast, in the very next article – article 23 – the right to public relief and assistance only accrues to “refugees lawfully staying in the [UK]”. These additional words must have some qualificatory content, but on the appellant’s argument it is very difficult to see what that content is.
39. Moreover, as Lord Hope referred to in paragraphs 36-37 of ST, if the appellant’s argument is correct it would seem to collapse to effectively nothing the distinction between rights that the Geneva Convention requires the Contracting States to attach to refugees as opposed to those rights that the State is expected to provide to refugees lawfully in its territory. Take the appellant’s case as an example. She was recognised as a refugee and her stay made lawful in the UK on the same day, 9 July 2008. There may be some cases where the grant of leave to remain will not in fact, and maybe need not in law (see Bugdaycay [1987] AC 514 as described by Lord Hope in paragraph 14 of ST), follow on automatically and immediately from the State’s recognition of refugee status. But in the typical case it will. However, if the appellant’s argument is correct it has the same effect as contended for by the appellant in ST, namely all the rights under the Geneva Convention would accrue to her from the (typically undetermined but earlier) point when she became a refugee, and the grant of leave to remain has no qualificatory or temporal effect.
40. The third problem with the appellant’s argument is that it does not apply, as one would expect it would, to all the articles of the Geneva Convention where the phrase “refugee lawfully [staying] in [the territory of the Contracting State]” appears. For example, under article 26 of the Geneva Convention it is provided that the UK “shall accord to refuges lawfully in its territory the right to choose their place of residence to move freely within its territory…”; but there is no meaningful sense in which a person can retroactively have freedom of movement in the UK for a past period when he had no such right (likewise the right to public housing under article 21). The fact that a retroactive right cannot work here is a powerful pointer in our view against the appellant’s argument.
41. Further, the terms of article 24(1)(b)(i) of the Geneva Convention (dealing, in the context of social security, with the particulars of the maintenance of acquired rights and rights in the course of acquisition for refugees lawfully staying in the UK), indicates that where the framers of the Geneva Convention intended the right conferred to be, so to speak, backward looking, express language was used to convey this. No such language is used in article 23.
42. The fourth problem is the views of the Supreme Court in ST. Firstly, it is plain that it saw the Geneva Convention as affording differing levels of protection depending on whether the article in question referred to “refugees” or “refugees lawfully [staying] in”: see Lord Hope at para. 1. Moreover, it seems tolerably clear that the Supreme Court only saw the “lawfully staying” protections as arising from the point onwards from when the stay became lawful. This appears from Lord Hope in paragraph 1 of ST where he says:
“The protection of article 32 [which has the “lawfully in” words in it] is more generous. Its effect is that, once a refugee has been admitted or his presence has been legalised and so long as the entitlement to refugee status continues, he is entitled to stay indefinitely in the receiving state”.
The words, to which we have added underlining for emphasis, plainly postulate a forward-looking right only. We appreciate that no “backward-looking” argument was made in ST, and that on its face article 32 of the Geneva Convention may not admit of any retroactive effect (though this perhaps adds emphasis to the points we have made on this in paragraph 40 above), and so the quoted words from Lord Hope may not have been necessary to the decision. On the other hand , they were his view and were the starting point for the analysis which then followed, and for those reasons are entitled to significant weight. For the reasons we have given above, Lord Hope’s view also accords with the plain meaning of the wording of the “lawfully [staying] in” articles in the Geneva Convention.
43. The view we have ascribed to Lord Hope was expressed more clearly by Simon Brown LJ (as he then was) for the majority of the Court of Appeal in R-v- Secretary of State for Social Security ex parte B (1997) 29 HLR 129, where he said, at page 145:
“no obligation arises under Article 24 of the [Geneva Convention] until asylum seekers are recognised as refugees……[i]f and when that status is recognised, refugees become entitled to benefit rights equivalent to nationals. Not for one moment would I suggest that prior to that time their rights are remotely the same; only that some basic provision should be made, sufficient for genuine claimants to survive and pursue their claims.”
44. All of these considerations in our judgment point forcefully against article 23 of the Geneva Convention having what we have described as retroactive effect; that is, conferring on a refugee an equal right to public assistance (income support) for the period before she has been determined to be a refugee lawfully in the UK but only once that determination is made. In our view, to put the point as simply as possible, the right under article 23 of the Geneva Convention (or more accurately, the obligation on the UK under that article) is only forward-looking.
45. Whilst that means that the UK was and is under no obligation to provide income support to an asylum seeker or a refugee until he or she is lawfully staying in the UK (at least as far as the Geneva Convention is concerned – we deal next with the Qualification Directive), this does not mean that asylum seekers are to be left without any form of financial support while seeking asylum. For example, we were taken to the United Nations High Commissioner for Refugees Executive Committee Conclusion No. 93 of 2002 on reception of asylum seekers in the context of individual asylum systems. The precise status of the document in terms of its impact on the UK is unclear. However, much of what is aspirationally there set out chimes with the sister directive to the Qualification Directive – Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers (the “Reception Directive”).
46. The UNHCR’s Executive Committee Conclusion No. 93 of 2002 is of relevance for two reasons. First, it acknowledges “that asylum systems are different, entailing assistance in kind or financial assistance, or a combination of both, as well as involving both governmental and non-governmental actors”. Second, it recommends that the reception of asylum seekers should be guided by, inter alia, the consideration that “[a]sylum seekers should have access to the appropriate governmental and non-governmental entities so that their basic support needs, including food, clothing, accommodation, and medical care, as well as respect for their privacy, are met”.
47. We return to this when discussing the Qualification Directive and its relationship with the Reception Directive below, however it seems to us that this basic level of support expected to be available while refugee status is being sought is a very different kind and level of financial assistance to the public assistance (i.e. income support) that article 23 of the Geneva Convention may require a State to provide to a refugee lawfully staying in its territory. Moreover, the fact that two different systems and levels of support are set out – one for the person seeking refugee status and the other for the person who has been recognised as a refugee and is lawfully staying in the State - is a further pointer against the article 23 public assistance extending back over the period when the person was seeking refugee status. This is perhaps especially so given that there is no mechanism for the two systems of support to inter-relate and for asylum seeker support to be offset against any “backdated” article 23 public assistance.
48. We now turn to article 28 of the Qualification Directive. We repeat what it says.
“Member States shall ensure that beneficiaries of refugee or subsidiary protection status receive, in the Member State that has granted such statuses, the necessary social assistance as provided to nationals of that Member State.”
49. The appellant’s argument here in substance was the same as under the Geneva Convention. The additional point, however, was that she sought to argue that the terms of this article were sufficiently clear and precise to have direct effect in UK law.
50. We pause at this point to comment on “direct effect”. In our view, it is not necessary to decide whether, and if so how, article 28 has direct effect in the UK for the simple reason that we do not accept that it has the scope contended for by the appellant. It is, in short, a measure or a right that looks forward only from the point the Member State has granted “refugee status”, and there is no doubt that the UK’s income support scheme does apply equally to those with refugee status from the point that status is, to use the word used in article 28 of the Qualification Directive, “granted”. To that extent, even if article 28 is of direct effect, the UK income support scheme is in conformity with that article. The income support scheme does not conform with the appellant’s reading of article 28, but that reading is, in our clear judgment, wrong. Accordingly, whether article 28 of the Qualification Directive has direct legal effect (in the EU law sense) in the UK does not need to be determined in order properly to dispose of this appeal, and so we say no more about it.
51. The appellant’s argument on the scope of article 28 of the Qualification Directive was on all fours with her argument on article 23 of the Geneva Convention. She argued that she was a refugee for all periods when she met the definition of a refugee under the Geneva Convention and once she had been granted refugee status, as she had when UK State recognised her as a refugee on 9 July 2008, and she thus fell within article 28 of the Qualification Directive. Moreover, and more importantly, that grant of refugee status had the effect that she should receive in the UK the same necessary level of social assistance (here, it is argued, income support) as would be received by UK nationals for the whole period she was a refugee.
52. We again do not accept this argument. We do not repeat all that we have said in respect of article 23 of the Geneva Convention and seek, instead, to focus on the particular aspects of the Qualification Directive (and the Reception Directive) that seem to us to cut against the appellant’s argument. However, we do emphasise at the outset that the appellant’s reading of the scope of article 28 of the Qualification Directive is inconsistent with the requirements of article 23 of the Geneva Convention. It would thus be an especially odd result if this reading of article 28 was correct given that recital (2) to the Qualification Directive sets as the high water mark for the directive “the full and inclusive application of the Geneva Convention”.
53. The next problem with the appellant’s argument – as with article 23 of the Geneva Convention – is the actual language of article 28 of the Qualification Directive. On its face it is forward-looking only as it is couched in terms of ensuring that beneficiaries of refugee status shall receive in the Member State that has granted that status the necessary social assistance as provided to nationals of that State (income support here). The grant of refugee status is thus the determinative act and it is only once that grant has occurred that, on the face of it, the right to necessary social assistance arises because until that point the person is not a beneficiary of “refugee status”; rather, for the reasons given below, she is a “refugee” under the terms of the directive to whom the grant of “refugee status” is still to be accorded.
54. Turning to the definitions section of the Qualification Directive – as Judge Desai did – in our judgment simply underscores this reading of article 28. The definitions section is in article 2 of the Directive. The first point to note is that “refugee” and “refugee status” are separately defined, which of itself suggests that they have separate and discrete meanings. The definition of “refugee” accords with the definition of “refugee” in article 1A(2) of the Geneva Convention. However, “refugee status” is defined as meaning “the recognition by a Member State of a….person as a refugee”. Thus, “refugee status” is a separate and distinct state of affairs, or a separate and distinct stage of a person’s qualification under the Directive; it is the stage at which a person is recognised as a refugee. On this reading, the right to necessary social assistance under article 28 arises at the time of recognition, and it cannot arise before then as the person by definition has not reached the stage of being recognised.
55. This reading is also consistent with what article 23 of the Geneva Convention provides for, and both parties argued (rightly in our view given the terms of recital (2) to the Qualification Directive) that we should strive to interpret article 28 of the Qualification Directive in a manner consistent with the Geneva Convention.
56. We may add for completeness that recital (33) to the Qualification Directive reads consistently with this interpretation as it sets out that “[e]specially to avoid social hardship, it is appropriate, for beneficiaries of refugee…status, to provide without discrimination in the context of social assistance the adequate social welfare and means of subsistence” (our underlining).
57. Moreover, we do not consider that recital (14) to the Qualification Directive – “[t]he recognition of refugee status is a declaratory act” – undermines our interpretation of article 28 as the key point is that even if the recognition of refugee status is a declaratory act (as also per Khaboka and R(IS)9/98), the right to income support under article 28 only arises on the (deliberate) language of that article once the UK has made the declaratory act: it is the act of recognition or the grant of refugee status that gives rise to the article 28 entitlement (if that is the right word), not being a refugee per se.
58. The search in the Qualification Directive for a distinction between the rights of a person prior to the point she is granted refugee status (i.e. a person seeking refugee status or an asylum seeker) and the rights of a person with such a status, which we conducted in respect of the Geneva Convention in paragraphs 37-41 above, finds no results. However, this is unsurprising because the rights of the person seeking refugee status are codified in the Reception Directive, to which we now turn. However, it is worth stating that the fact that the European Union has provided for two different directives of itself suggests (at the very least) that the rights of the asylum seeker and the person with refugee status are seen as being legally distinct.
59. The Reception Directive is concerned with “laying down minimum standards for the reception of asylum seekers”. It is thus dealing with the position prior to a person being granted refugee status (assuming such a grant is made). Again, by recital (2) it was seeking to implement the Geneva Convention. It applies – per article 3(1) – to all asylum seekers “who are allowed to remain on the territory” of the Member State as asylum seekers. This would seem, in our view, to parallel the distinction drawn in the Geneva Convention (as explained in ST) between those merely in the UK and those lawfully in the UK; with “allowed to remain” speaking of the former rather than the latter.
60. We highlight two other aspects of the Reception Directive. First, under article 10 Member States are to grant to minor children of asylum seekers, or minor children who are asylum seekers themselves, access to school education under similar conditions as nationals of the Member State. This seems to mirror article 22 of the Geneva Convention discussed in paragraph 38 above, and, importantly for the analysis we are conducting, sets out a right that accrues at the time refugee status is being sought. Second, under article 13(1) of the Reception Directive Member States are to ensure that “material reception conditions are made available to applicants when they make their application for asylum”. Under article 2(j) of the same directive “material reception conditions” is defined so as to include “housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance”: in other words, a basic level of support that is to be contrasted with the social assistance available to the person if and when he is granted refugee status: per article 28 of the Qualification Directive.
61. Both of these provisions in the Reception Directive suggest, in our view, a conscious and deliberate focus on the different rights that are seen as accruing at the time of seeking refugee status and then once refugee status has been granted. That perspective informs and supports our view that article 28 is forward-looking only.
62. In addition, if the appellant’s argument on the retroactive effect of article 28 is correct, we would have expected that these two plainly complementary directives would have addressed the ability of the Member State (if not the mechanism by which this was to be achieved), to offset the support provided under the “material reception conditions” against the backdated social assistance made available under article 28; but both directives are silent on this inter-relationship. That is another pointer, in our judgment, to the signatory Member States having decided that each directive was to deal with legally distinct and separate situations and that the entitlements arising do not cross over. Further, such a perspective is wholly supported by the requirements of the Geneva Convention.
63. Another point may be made here, one which arises out of the scope of the backdated entitlement that regulation 21ZB conferred. As the terms of regulation 21ZB(2) show, this regulation treated the person as having been a refugee at all points from the date of her claim for asylum through to the Secretary of State’s recording or recognising of that person as a refugee. However, the State’s recognition of a person as a refugee does not carry with it, either expressly or by implication, that the person has been a refugee at all times since the claim for asylum was made. The settled legal position – per R(IS)9/98 and Khaboka – is that a person is a refugee from the time she fulfils the criteria contained in the Geneva Convention (and the decision of the Secretary of State does not make the person a refugee but merely declares this to be the case). The corollary of this, however, is that on analysis a person may not have been a refugee at the time of her asylum claim but has since become so, or she may have been and then ceased to be and become a refugee again: the likely distinguishing factors being changes in the circumstances prevailing in the country from which the person is seeking asylum and/or changes in the individual concerned. (For example, the critical factor in the appellant’s case seems to be the faith, or branch of the faith, that she had acquired since coming to the UK and probably since she made at least her first claim for asylum).
64. Although the history on an asylum claim is obviously important, in reality the critical issue for the Secretary of State, or the tribunal on appeal from his decision, is whether the person is a refugee at the time of the decision: see the Court of Appeal’s decision Ravichandran –v- Secretary of State for the Home Department [1996] Imm AR 97 at pages 111-113.
65. If, however, the appellant’s argument as to the scope of article 28 of the Qualification Directive is correct the requirements of that article would only require income support to be paid to the person for the periods when she was in fact a refugee. On this analysis, the scheme set out in regulation 21ZB was more generous than was required (under the appellant’s argument), in the sense that it treated the person as a refugee for periods when she may not in fact have met the criteria for being a refugee. However, that then throws light back on what in fact would be required by a State, if the appellant’s primary argument is correct, to render the right under article 28 directly effective.
66. As far as we can see, what would be required, (if, we stress, the appellant’s argument is correct) is machinery for assessing the period or periods when a person was a refugee since she has been in the UK and since her claim for asylum was made. Indeed, the assessment may have to stretch back to period before the asylum claim was made as there is nothing in the terms of article 28 of the Qualification Directive that limits its (retroactive) effect to when a claim for asylum was made.
67. This result would seem to be surprising in a context where:
(a) the relevant international legal instruments seem to distinguish between the periods when a person is an asylum seeker (and the rights which flow from that form of status) and after refugee status has been granted or recognised (and the rights which flow from that form of status), and provide for separate and distinct types of financial support to the person during those discrete periods; and
(c) no provision is made in those instruments to address how the State is to assess a person’s past refugee status for the purposes of working out how much “backdated” benefit she ought to be awarded, nor is any machinery created to allow offsetting of the support awarded to the asylum seeker whilst seeking asylum from the “backdated” benefit which the appellant says is conferred by article 28 of the Qualification Directive once a person’s status as a refugee has been recognised.
68. The Secretary of State also sought to rely on Mr Justice Singh’s decision in R(Kuchiey) –v- Secretary of State for the Home Department [2012] EWHC 3596 (Admin) as standing against the appellant’s argument. Such support is not needed, for the reasons we have given above. The decision in Kuchiey is also not directly in point because what was in issue before Mr Justice Singh was the claimant’s right to a residence permit under article 24(1) of the Qualification Directive. This provides, so far as is material, that:
“[a]s soon as possible after their status has been granted, Member States shall issue to beneficiaries of refugee status a residence permit which must be valid for three years…”
69. The claimant’s asylum claim in Kuchiey had a long history and it was only after a number of appeals that he was found to be a refugee and granted refugee status. In the meantime, however, the lack of a residence permit had, as we understood his case, had a number of adverse financial consequences for him. He sought the grant of a “backdated” residence permit under article 24(1) of the Qualification Directive. When backdating was refused he, inter alia, sued for damages for breach of EU law.
70. This brief recital of the facts is enough to set the scene. We do not consider this case to be determinative because it was dealing with different provisions of the Qualification Directive. However, as a matter of general impression we would accept that it supports our analysis, and it certainly lends no support to the appellant’s case. By general impression we mean that it seems that Mr Justice Singh took the view that there could be no breach of any duty under EU law – vis a vis providing the residence permit - because the duty under article 24(1) to provide a residence permit only arose after refugee status had been granted and not before: in other words, the grant of refugee status had no retroactive effect.
71. It is for all of these, necessarily long, reasons that we reject the appellant’s main argument on article 28 of the Qualification Directive. It has, in short, no retroactive effect, and Judge Desai was correct to rule as she did.
Human Rights
72. Given it was common ground that we can afford the appellant no remedy even if her human rights arguments are correct, and given we heard only outline arguments from the parties under this heading (and had no real argument or detailed evidence as to justification from the Secretary of State), we can express our decision under this head much more briefly.
73. In short, we consider that even assuming everything else in the appellant’s favour (e.g. her claim for backdated income support as a refugee falls within the ambit of article 1 protocol 1 to the Convention, that being a refugee is a form of “status” under article 14 of the Convention (as to which see paragraphs 47 and 48 of Hode and Abdi –v- UK (Application No 22341/09), ECtHR, final judgment 6.02.13), and that the appellant can show a analogous comparator group she is adversely affected as against), any discrimination is plainly justified because all the UK statutory scheme changed to on 14 June 2007 under the Asylum and Immigration (Treatment of Claimants etc) Act 2004 was a scheme that conforms with the UK’s international obligations under the Geneva Convention and EU law under the Qualification Directive. We cannot see how it can be argued that it was “manifestly without reasonable foundation” (per Humphreys –v- Revenue and Customs Commissioners [2012] UKSC 18; [2012] 1 WLR 1545; [2012] AACR 46) for the UK to brings its social security scheme for refugees and those seeking refugee status into line with these legal instruments.
Conclusion
74. It is for all these reasons that we dismiss the appeal. Judge Desai’s decision was not affected by any error of law. It was correct and it must therefore stand. The appellant was not entitled to income support for any period prior to 19 July 2008.
(Signed) Christopher Ward
Mark O’Connor
Stewart Wright
Judges of the Upper Tribunal
Dated 6th September 2013