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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2003] UKSSCSC CIS_2456_2000 (15 July 2003) URL: https://www.bailii.org/uk/cases/UKSSCSC/2003/CIS_2456_2000.html Cite as: [2003] UKSSCSC CIS_2456_2000 |
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[2003] UKSSCSC CIS_2456_2000 (15 July 2003)
CIS/2456/2000
CIS/2463/2000
1. (1) My decision on file CIS/2456/2000 is that the decision of the Income Support Tribunal dated 8 February 2000 on Case No. S/45/160/1999/01237 is not erroneous in law.
(2) My decision on file CIS/2463/2000 is that the decision of the Income Support Appeal Tribunal dated 6 December 1999 on Case No. S/45/164/1999/00113 is not erroneous in law.
History of the Appeals
"For the purposes of this paragraph, a person –
(a) is an asylum seeker when he submits on his arrival (other than on his re-entry) in the United Kingdom from a country outside the Common Travel Area a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or required to leave, the United Kingdom and that claim is recorded by the Secretary of State as having been made; …".
In paragraph (3B) of regulation 70 "the Convention" is defined as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the protocol to that Convention and "the Common Travel Area" is defined as the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively.
" 12. The Tribunal agrees that the [thrust] of the case-law requires a claim for asylum to be made either while going through Immigration Control or while within the port of entry. It seemed to the tribunal that the approach adopted in CIS/250/99 is correct. The [test] must be an objective [one] and the phrase "on arrival" must be construed as a term of art in immigration law.
13. On the basis of that decision, and the earlier case law, the Tribunal found, on the evidence, that [Mr M] had not claimed asylum on his arrival.
14. Even if a degree of flexibility is to be imported with the phrase 'on his arrival', [Mr M] would not have succeeded. His medical condition was not disabling (he was conscious and able to speak and walk) and his method of entry was not so unconventional as to justify a flexible approach.
15. Turning to the argument over Article 31 of the Refugee Convention the Tribunal was presented with 2 conflicting and recent decisions of Commissioners CIS/4439/1998 and CIS/3646/98. The Tribunal preferred the approach set out in CIS/3646/98, paragraph 9. The Tribunal noted that the Commissioner was aware of, and cited, the earlier decision 4439.98 but decided [not?] to follow it.
16. Accordingly, the Tribunal dismissed the appeal in the terms contained in the Decision Notice.".
"9. The claim was made the same day as their arrival.
10. [The claimant's representative] made a number of submissions regarding the crucial issue in the case, the meaning of 'on arrival'. In addition representations were made in respect of the European Convention for the Protection of Human Rights.
11. In order for Mrs K's claim for an Urgent Case Payment to succeed, she needed her claim for asylum on arrival in the U.K., alternatively the specific Regulations are to be deemed ultra vires.
12. Mrs K did not make an application 'on arrival.' I feel bound by the decision of the Commissioner's CIS/3231/1997. It was some time after entry into the U.K. that Mrs K made her application at Croydon.
13. In respect of the argument that the Regulations are ultra vires this is a matter forjudicial review
and not for me.".
Mr Draycott's Submission
" 1. A Treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the Treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a Treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the Treaty which was made between all the parties in connection with the conclusion of the Treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the Treaty and accepted by the other parties as an instrument relating to the Treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the Treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.".
It was accepted that the Vienna Convention was retrospective in its effect and was, therefore, applicable to the interpretation of the Geneva Convention. Authority for that was to be found in A v. Minister for Immigration and Ethnic Affairs (1997) 190 CLR, 225, 277 and Golder v. United Kingdom (1975) 1 EHRR 524, 532. To comply with the requirements of the Vienna Convention the preamble to the Geneva Convention had to be taken into account in construing Articles 1, 3, 31 and 33 of the Geneva Convention.
"Unless it is seen as a living thing, adopted by civilised countries for a humanitarian end which is constant in motive but mutable in form, the Convention will eventually become an anachronism. The fact that it is today groaning under other burdens, ranging from exploitation by the unscrupulous or the opportunistic to genuine invocation by a previously unimagined volume of asylum seekers, calls for scrupulous attention to every claim but cannot redefine its meaning.".
At page 153 Sedley, J, in remitting the case to the Immigration Appeal Tribunal, referred to its adjudication not being a –
"… conventional lawyer's exercise of applying a legal litmus test to ascertain facts; it is a global appraisal of an individual's past and prospective situation in a particular cultural, social political and legal milieu, judged by a test which, though it has legal and linguistic limits, has a broad humanitarian purpose.".
"I find this by no means an easy matter to judge, but to my mind the proper approach must be to apply to the word 'persecution' its ordinary meaning as found in the dictionary. I accept, of course, that considerations of policy may require a stringent test to be adopted if this country is not to be flooded with those claiming political asylum, but I can do nothing other than go by the language used in paragraph 134 and I see no reason for giving that language anything but its ordinary meaning. ".
"1. (a) A punishment, esp. a fine for a breach of law, contract etc.".
I should say that in my edition of the Concise Oxford Dictionary (the Seventh) the primary definition of "penalty" is –
"1. Punishment, esp. payment of sum of money, for breach of law, rule, or contract, (on or under penalty of dismissal etc.); money thus paid; the [disadvantage] of, disadvantage resulting from (quality etc.).".
and in the New Shorter Oxford Dictionary (1993 Edition) the primary definition is –
"1. (a) A punishment imposed for breach of a law, rule, or contract; a loss or disadvantage of some kind, either prescribed by law for some offence, or agreed on in case of breach of contract; specifically, a fine.".
Mr Draycott drew attention to the reference to both the law and to contract. He submitted that a penalty was not just a criminal punishment. It could also be an imposition under civil law or contract. To construe the word "penalty" as contended on behalf of the claimant would not strain the wording of Article 31 of the Convention.
"Needy asylum seekers should be given all necessary support covering the basic necessities of life, including food, clothing and basic accommodation, throughout the asylum procedure until a final decision is taken on their application. If necessary, this should also apply to asylum-seekers who are permitted to work but are unable to find adequate employment.".
In the same paragraph one was reminded that Article 13 of the European Council Directive on the Minimum Standards for the Reception of Asylum Seekers in Member States stipulated that –
"1. Member States shall ensure that material reception conditions are available to applicants when they make their application for asylum.
2. Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence.".
The submission argued that as the Directive would soon be coming into force it was highly desirable that all social assistance be provided in accordance with the provisions laid down in that instrument. In that connection Mr Draycott referred me to page 3 of M's bundle. That was a copy of a Home Office form SAL2 in which Mr M was advised that he could apply to the Home Office for permission to take employment if his asylum application had not been resolved within six months. At pages 7 and 8 of Mr K's file there was a document with similar advice. The UNHCR view was that if employment was restricted there should be financial support. Restrictions on basic rights should be proportionate. A needy asylum seeker was to be given the basic support of housing, food, clothing etc. Under the National Assistance Act all that people got, at the best, was benefit in kind and housing accommodation. In effect all that was given was food and accommodation, not clothing. All of this documentation gave an insight to the meaning of Article 31. The UNHCR had produced the reference to asylum seekers to show that Article 31 applied to civil matters as well as to criminal.
"A strict linguistic interpretation points to the character of the illegality being the fact of presence or entry 'without authorisation'. On this interpretation the illegality of the means, whereby entry or presence without authorisation had been achieved, would be outside it. No one contends for such a limited interpretation. The Convention is a living instrument changing and developing with the times so as to be relevant and to afford meaningful protection to refugees in the conditions in which they currently seek asylum.".
"It is wrong that we should enable them to do so by extending benefit and rewarding those who fail to tell the truth simply to get a better immigration status by claiming in-country.".
Mr Draycott submitted that just as in the Adimi cases the cases referred to by the Secretary of State were covered by Article31 of the Convention.
"Subject to and in accordance with the provisions of this Part of the Act a local authority with the approval of the Secretary of State, and to such extent as he may direct, shall make arrangements for providing:
(a) residential accommodation for person's aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not available to them;".
That was the gateway to assistance for the asylum seeker. There was no other help if he did not need accommodation. The effect of regulation 70(3A)(a) of the General Regulations was that the asylum seeker had to rely on section 21(1) for help. In R. v. Hammersmith and Fulham London Borough Council, Ex Parte M (1997) 30 HLR 10 CA Lord Woolf, MR accepted that the asylum seeker could not rely on section 21 for help. It did not provide for the claimant who simply lacked money. He submitted that theoretically an asylum seeker had an entitlement under regulation 21 but only if he was destitute. In the period of time which must elapse before he reached that state the total lack of entitlement to assistance must be a penalty in terms of Article 31. The decision in Ex Parte M was followed by Carnworth, J, in R. v. Newham London Borough Council Ex Parte Gorenkin(1997) 30 HLR 278 QBD. He rejected the argument that asylum seekers should receive help other than accommodation. The care and attention which was relevant was that care and attention which could be provided in accommodation. Therefore, if there was no provision of accommodation by the local authority there was no power to provide care and attention. Also in R. v. Secretary of State for Health Ex Parte Hammersmith and Fulham Borough Council and Others (1997) 30 HLR 525 QBD Laws J held that section 21 neither authorised nor contemplated the making of cash payments to those in need and in R. v. Newham London Borough Council Ex Parte Plastin (1997) 30 HLR 261 QBD Keene J upheld the local authority's refusal of assistance under section 21(1)(a) notwithstanding that the applicant was 51 years old, had no money, no home, was unable to speak English and did not have a job. In ex parte B Simon Brown LJ listed at page 395 of the report the difficulties facing the asylum seeker as being:-
(1) no access either to funds or to benefits in kind,
(2) no accommodation and no prospect of securing any because of ineligibility for Housing Benefit,
(3) a six months prohibition on seeking employment and poor prospects of obtaining any thereafter,
(4) without family friends or contacts and thus in a position of peculiar isolation and
(5) the prolonged period of waiting for a resolution of the application for asylum
and
(6) the difficulties and expense of pursuing the application.
Miss Anderson's Submission
Mr Draycott's Response
Consideration
"The Secretary of State may not provide or arrange for the provision of support to a person under the provision mentioned in subsection (2) if –
(a) the person makes a claim for asylum which is recorded by the Secretary of State, and
(b) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.".
Section 95 of the 1999 Act is one of the provisions mentioned in subsection (2) of section 55. It seems to me that the new test of "as soon as reasonably practicable" is one which could be met by asylum seekers irrespective of their method of entry to the United Kingdom, subject to their being able to persuade the immigration authorities of their promptness in applying for asylum. The claimants in the instant cases could argue that they had wasted no time between alighting from the vehicles in which they arrived and making a claim at Croydon. It seems to me also that the enactment, using words which could easily have been used in regulation 70(3A)(a), of a new test which has the flexibility attributed to the 70(3A)(a) test by R(IS)14/99, and now posited by Mr Draycott, is a clear indication that the regulation 70(3A)(a) test is as restrictive as I, in the light of the background material, considered it to be in my earlier decisions. That new indication of the nature of regulation 70(3A)(a) post dates both R(IS)14/99 and the authorities on which the Commissioner relied and on which Mr Draycott relied in his submissions to me. Therefore, irrespective of what is enjoined by the Geneva Convention the legislative intention behind and the effect of Reg.70(3A)(a) was that claims for asylum as a basis for entitlement to benefit had to be initiated in the port of arrival with no concession as to the circumstances in which the claimant arrived at a designated port of arrival or to those claimants who arrived at places in which a claim could not be initiated
(Signed) R J C Angus
Commissioner
(Date) 15 July 2003