The issue
The claimant seeks judicial review of two decisions:
(i) A decision by or on behalf of the Secretary of State for the Home Department to treat her application for asylum as having been refused on 20 November 1999, which is the date on which an internal file note purports to record her application as having been determined.
(ii) A decision by or on behalf of the Secretary of State for Social Security to withdraw her income support benefit on 9 December 1999, prior to any notification to her of the determination of her application for asylum, or the reasons for that determination, or the service on her of any notice of refusal of leave to enter the United Kingdom.
Regulation 70 of the Income Support (General Regulations) 1987 as amended (“the Income Support Regulations”) provides for the payment of income support to persons who are asylum seekers within the meaning of Regulation 70(3A). Regulation 70(3A)(b)(i) provides that a person ceases to be an asylum seeker (and thus loses the right to income support)
“in the case of a claim for asylum which, on or after 5th February 1996, is recorded by the Secretary of State as having been determined (other than on appeal) or abandoned, on the date on which it is so recorded”
In R v Secretary of State for the Home Department ex parte Salem [1999] QB 805, the Court of Appeal held that for the purposes of Regulation 70(3A)(b)(i), a person ceased to be entitled to income support as from the date when his claim for asylum was recorded as determined on an internal file note in the Asylum Directorate in the Home Department, even though he had not yet been informed of the determination, nor the reasons, and had no right of appeal against that determination until he had been informed of a decision by the immigration officer refusing him leave to enter. The House of Lords granted leave to appeal the decision in Salem, but in the event the matter did not proceed because Mr Salem was subsequently granted refugee status: see [1999] AC 450.
The claimant in this case is an asylum seeker whose income support was withdrawn without reasons on 9 December 1999. An internal note of the Immigration and Nationality Directorate of the Home Department disclosed in these proceedings states that her claim for asylum was “recorded as determined” on 20 November 1999. It was not until 18 April 2000 that she was refused leave to enter the United Kingdom and given the reasons for the refusal of her claim to asylum. Her circumstances are thus similar to those in issue in Salem.
The claimant submits that her claim was not “determined” for the purposes of Regulation 70(3A)(b)(i) until she was refused leave to enter on 18 April 2000. She invites the court to distinguish or depart from the Court of Appeal’s decision in Salem or, at the very least, to give permission to appeal in the event that her application for judicial review is dismissed. If the claimant succeeds in her application she will be entitled to receive income support benefit for the period from 9 December 1999 to 18 April 2000.
I am told that this is regarded by the claimant as a test case funded by the Legal Services Commission, and that the outcome may affect many asylum seekers who prior to 3 April 2000 – when the applicable regime changed – were in receipt of income support benefit.
The facts
The claimant, Nadezda Anufrijeva, is a Lithuanian national of Russian origin, aged 22. She arrived, with her father and other members of her family, in the United Kingdom on 31 August 1998 at Gatwick Airport. Her father claimed asylum for himself and the other dependent members of the family, while the claimant claimed asylum in her own right. Both were interviewed, but the details of the interview are not before the court.
On 4 September 1998 the claimant claimed income support benefits. As an asylum seeker she was paid income support at the rate applicable for urgent cases (90% of the normal rate) with effect from that date, pursuant to Regulation 70(3A) of the Income Support Regulations referred to above.
It appears that at some stage during October 1998 further documents were sent to the immigration authorities, apparently in support of the claimant’s father’s claim for asylum, but these were apparently returned in 1999 to the claimant’s former solicitors because they were in Lithuanian.
A letter dated 8 October 1999 to the claimant from the Immigration and Nationality Directorate at Gatwick asked her to report to an immigration officer at Gatwick for an interview on 8 April 2000.
The defendants have exhibited to a witness statement of Georgina Balmforth, of the Immigration and Nationality Directorate headquarters at Croydon, sworn in these proceedings on 5 July 2001, a file note dated 20 November 1999 signed by Mr Stuart Beaton of the Integrated Casework Directorate which bears a stamp of the Home Office Immigration Department dated 22 November 1999. The relevant part of this note reads:
“For the reasons given in the letter aside, this applicant has failed to establish a well founded fear of persecution. Refusal is appropriate. Case hereby recorded as determined. Certified under 5(4)(a)”
That note or its terms was not known to the claimant until it was produced in the course of these proceedings.
On 28 November 1999 the Immigration and Nationality Directorate at Gatwick wrote to the claimant requesting her to attend an interview on 11 January 2000. It appears that this interview, had it taken place, would have been what is known as a “reasons for refusal interview”. An interview with the claimant’s father was apparently fixed for the same day.
On 2 December 1999 the London Borough of Southwark wrote to the claimant’s solicitors a letter indicating that the Anufrijeva family had been refused asylum on 19 November 1999 and were no longer entitled to housing assistance and housing under Part VII of the Housing Act 1996. The form attached to that letter relates to the claimant’s father, Vladimiras Anufrijevas.
On 9 December 1999 the Benefits Agency (which administers social security payments on behalf of the Department of Social Security) asked for the return of the claimant’s income support book. That request was repeated on 15 December 1999. No reason was given for either request but nonetheless her income support payments stopped.
On 17 December 1999 the solicitors now acting for the claimant wrote to the Immigration and Nationality Directorate at Gatwick, asking for a postponement of the interview fixed for 11 January 2000, on the grounds that they had only just been instructed and that the relevant documents had not yet been obtained from the claimant’s former solicitors.
On 22 December 1999 the claimant’s solicitors wrote again to the Immigration and Nationality Directorate at Gatwick, informing them of their intention to make further representations on their client’s behalf, on the grounds that the former solicitors had failed to prepare the case. The claimant’s solicitors further stated that the claimant (and her father) had not been notified of a refusal of their claim to asylum, albeit that the Department of Social Security and the local authority had apparently been so informed. They took the position that there had been no determination of their clients’ claims to asylum until there had been a decision which they could appeal.
On 23 December 1999 the claimant’s solicitors were informed by telephone by the Benefits Agency that the Benefits Agency had been told by the Home Department that the claimant had been refused asylum on 20 November 1999. The Benefits Agency had accordingly stopped the claimant’s income support payments with effect from 9 December 1999. A document apparently emanating from the Benefits Agency Centre in Wigan indicates that asylum was refused on 20 November 1999 and that the Benefits Agency was informed on 30 November 1999. The date of 20 November 1999 was confirmed by two further letters from the Benefits Agency to the claimant’s solicitors both dated 11 January 2000.
On 24 December 1999 the claimant’s solicitors lodged an appeal with the Benefits Agency against the withdrawal of the claimant’s income support.
Also on 24 December 1999 the claimant’s solicitors submitted further statements to the Immigration and Nationality Directorate at Gatwick on behalf of the claimant and her father and asked that these be considered. The translation of the original documents and the documents themselves would follow by post. According to the claimant’s solicitors, the documents in question had originally been delivered to Gatwick by the former solicitors but had been returned without the claimant or her father having been aware of that fact. The claimant’s solicitors said in their letter “the documents are essential and we urge you to consider them”.
By letter of 6 January 2000 the claimant’s solicitors attempted to obtain from the Immigration and Nationality Directorate at Gatwick a record of the purported determination of the claimant’s request for asylum. At the same time they again asked for a postponement of the interview fixed for 11 January 2000, on the grounds that full statements on behalf of the claimant and her father had been submitted only on 24 December 1999, and had not yet been properly considered together with supporting documents which had not been previously translated.
With some reluctance, a senior officer of the Immigration and Nationality Directorate (Mrs Sale) agreed on the telephone on 10 January 2000 to postpone the interview fixed for 11 January 2000. That interview was refixed for 7 March 2000.
On 14 January 2000 the claimant’s solicitors again wrote to the headquarters of the Immigration and Nationality Directorate at Croydon, requesting a record of the decision apparently taken by the Secretary of State on the claimant’s request for asylum.
On 25 January 2000 the Immigration and Nationality Directorate headquarters at Croydon replied that the office computer recorded that a decision had been taken on the claimant’s application for asylum on 20 November 1999. No other information was available, apparently because the file was travelling between two different sections of the Service.
On 28 January 2000 the claimant’s solicitors wrote to the Immigration and Nationality Directorate at Croydon expressing surprise that their client’s further representations and documents had not been sent there from Gatwick, and asking for those representations and documents to be considered. Further translations were to be supplied. Again the claimant’s solicitors asked for a copy of the record of any decision by the Secretary of State on the claimant’s request for asylum.
The claimant did not attend the interview fixed for 7 March, which is described in the claimant’s solicitor’s letter of 28 January 2000 as “another refusal interview”. She says she could not afford the train fare of £17, and that her local social security office in Southwark had refused to fund the fare.
By letter of 7 March 2000 the claimant’s solicitors informed the Immigration and Nationality Directorate at Gatwick that the reason for the claimant’s non-attendance at interview was lack of funds. Again they requested “a copy of the record entered on 19 or 20 November 1999”.
A further interview was arranged for 17 April 2000 but again the claimant did not attend on the ground of lack of funds. Again, she says, she was unable to obtain funds for the train fare from the local social security office.
The decision rejecting the claimant’s application for asylum and refusing her leave to enter was sent to her by the Immigration and Nationality Directorate at Gatwick on 25 April 2000. The decision refusing her leave to enter the United Kingdom is signed by an immigration officer and dated 18 April 2000. That letter reads:
“You have failed to comply with the terms and conditions of your temporary admission in that you failed to report, as required, to the above address on 17th April, 2000. Your examination has therefore been treated as concluded at that time.
You have applied for asylum in the United Kingdom. The Secretary of State has decided to refuse your application for the reasons set out in the attached notice.
I am not satisfied that you qualify for leave to enter the United Kingdom under any other provision of the Immigration Rules.
I therefore refuse you leave to enter the United Kingdom.
REMOVAL DIRECTIONS
I propose to give directions for your removal to Lithuania on a scheduled service.”
The letter of 18 April 2000 was accompanied by a reasons for refusal letter dated 20 November 1999 which is also signed by Mr Stuart Beaton of the Integrated Casework Directorate at Croydon. The gist of the reasons for refusal in the letter dated 20 November 1999 were that the Secretary of State did not consider that Russian speakers in Lithuania were a persecuted group, or that the claimant had a well-founded fear of persecution, under the terms of the United Nations Convention relating to the Status of Refugees.
The claimant (and her father who had similarly been refused leave to enter) appealed the refusal of leave to enter to the special adjudicator. The appeals were heard together on 7 December 2000 and 22 January 2001 and rejected on 7 March 2001. At paragraph 137 the special adjudicator found that both the claimant and her father were “credible, truthful and intelligent witnesses”. He accepted that her father had been persecuted by the Lithuanian police, but held that such persecution was not for a Convention reason. The special adjudicator recommended that the Secretary of State grant both the claimant and her father exceptional leave to remain. He further refused to uphold the Secretary of State’s certificates given under paragraph 5(4)(a) of Schedule 2 of the Immigration and Asylum Appeals Act 1993, on the grounds that the claimant’s father had established that he had been tortured within the meaning of Article 1 of the United Nations Convention against Torture, 1994, and that, on its face, the claimant’s claim had shown a fear of persecution for a Convention reason.
I understand that leave to appeal to the Immigration Appeal Tribunal was refused but that on 4 September 2001 the High Court (Mr David Pannick QC sitting as a Deputy High Court judge) granted permission to seek judicial review. The claimant’s application for asylum has therefore not yet been finally judicially determined. No decision has yet been made on the recom mendation that she be granted exceptional leave to remain.
Meanwhile, the claimant’s appeal against the withdrawal of income support was heard by a tribunal of the Appeals Service on 17 October 2000. According to the tribunal’s statement of reasons dated 15 March 2001, the appeal was dismissed on the grounds that the claimant was no longer an asylum seeker within the meaning of Regulation 70(3A)(b)(i) with effect from 20 November 1999. The Home Department notification to the Benefits Agency to the effect that asylum had been refused on 20 November 1999 was accepted by the tribunal as reliable evidence of the fact that the Secretary of State’s decision “had been recorded by the Secretary of State as having been determined on 20.11.99”. Although the claimant’s solicitors had previously “requested that the matter be referred to the Social Security Commissioners” that matter has not, apparently, progressed further.
The statutory framework
The statutory framework affecting asylum seekers in relation to income support and immigration control is as follows.
— Income support
Income support is one of the income-related benefits payable pursuant to Part VII of the Social Security Contributions and Benefits Act 1992, as amended (“the 1992 Act”). Entitlement to income support is governed by the Income Support Regulations already mentioned made under section 175 of that Act. Pursuant to Regulation 21 and Schedule 7 of the Income Support Regulations the amount of income support payable to persons from abroad is reduced to nil (with exceptions not presently material) except in relation to a person to whom regulation 70(3) applies. Regulation 70(3) applies to a person from abroad who is an asylum seeker for the purposes of paragraph 3A of regulation 70: paragraph 70(3)(b).
Paragraph 3A of regulation 70 was inserted in the Income Support Regulations by regulation 8 of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996, (“the Persons from Abroad Regulations”). Paragraph 3A(a) of regulation 70 provides that a person is an asylum seeker when he submits on his arrival in the United Kingdom a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom’s obligations under the United Nations Convention relating to Refugees 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. However, paragraph 3A(b) of regulation 70 provides that a person ceases to be an asylum seeker:
“(i) in the case of a claim for asylum which, on or after 5 February 1996, is recorded by the Secretary of State as having been determined (other than on appeal) or abandoned, on the date on which it is so recorded.
(ii) in the case of a claim for asylum which is recorded as determined before 5th February 1996 and in respect of which there is either an appeal pending or an appeal is made within the time limits specified in rule 5 of the Asylum Appeals (Procedure) Rules 1993, on that date on which that appeal is determined.”
The main effect of paragraph 3A of regulation 70 was to deny income support to asylum seekers whose claims had been adversely determined by the Secretary of State but whose cases were awaiting appeal pursuant to the provisions of the Asylum and Immigration Appeals Act 1993 (“the 1993 Act”).
In R v Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants [1996] 1 WLR 275 (“the JCWI case”) the Court of Appeal (Simon Brown and Waite LJJ, Neill LJ dissenting) held that the Persons from Abroad Regulations were outside the order-making powers conferred by the 1992 Act, broadly on the ground that the abrogation of the right to income support, and consequent destitution, of asylum seekers effectively rendered nugatory the rights of appeal conferred by the 1993 Act: see Simon Brown LJ at p. 292C to 293D and Waite LJ at 293E to 294A.
However, following the JCWI case, Parliament enacted section 11(4) and schedule 1 Part I of the Asylum and Immigration Act 1996 (“the 1996 Act”), which gives primary legislative authority to the Persons from Abroad Regulations and thus reverses the effect of the JCWI case. It is thus common ground that once an appeal has been “recorded ... as having been determined” within the meaning of Regulation 70(3A)(b)(i) after 5 February 1996, income support is not payable while an appeal is pending. One incidental consequence of the 1996 Act is that there can be no challenge to the vires of Regulation 70(3A)(b)(i) in the present case.
By virtue of Regulation 21ZA(1) of the Income Support Regulations, introduced by the Income Support and Social Security (Claims and Payments Miscellaneous Amendments) Regulations 1996:
“Where a person has submitted a claim for asylum and is notified that he has been recorded as a refugee within the definition of Article 1 of the Convention ... he shall cease to be a person from abroad for the purposes of regulation 21 ... and Schedule 7 ... from the date he is so recorded.”
By virtue of Regulation 21ZA(2) and (4) any income support due by virtue of a person being recorded as a refugee is payable retrospectively. In consequence, asylum seekers whose appeals ultimately succeed may receive income support retrospectively in respect of the whole period in which they have been in the United Kingdom.
From 1996 until further legislative changes were made at the end of 1999, the only support available to destitute asylum seekers in the position of the claimant whose appeals were pending, was that available under section 21(1)(a) of the National Assistance Act 1948. That section provides that in certain circumstances local authorities have a duty to provide residential accommodation for persons who by reason of age, illness or other circumstances are in need of care and attention which is not otherwise available to them.
Part VI of the Immigration and Asylum Support Act 1999 (“the 1999 Act”), which came into force on 11 November 1999, makes new provision for “asylum support” for asylum seekers who are, or are likely to become, destitute. For the purpose of the 1999 Act an “asylum seeker” is defined by section 94(1) as a person “who has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined”. Pursuant to section 94(3)
“a claim for asylum is determined at the end of such period beginning (a) on the day on which the Secretary of State notifies the claimant of his decision on the claim, or (b) if the claimant has appealed against the Secretary of State’s decision, on the day on which the appeal is disposed of, as may be prescribed.”
The prescribed period is 14 days. The effect of section 94(3) is thus that asylum support under of the 1999 Act may continue until 14 days after the disposal of any appeal.
Those provisions were implemented by the Asylum Support (Interim Provisions) Regulations 1999 which came into force on 6 December 1999. The Asylum Support (Interim Provisions) Regulations provide for an interim scheme of support administered through local authorities for asylum seekers who appear to be destitute or likely to become destitute within 14 days. This support may take the form of accommodation and vouchers to meet “the essential living needs” of the persons concerned, but does not involve cash payments. As I understand it this interim scheme is gradually being replaced by a permanent scheme along similar lines, run by the new National Asylum Support Service and introduced with effect from 3 April 2000 under the Asylum Support Regulations 2000. Asylum support under this legislation is apparently seen as the ‘basic provision’ which Simon Brown LJ in JCWI regarded as necessary in order to avoid a situation in which the statutory right of asylum seekers to claim refugee status could be defeated by their becoming destitute in the meantime: [1997] 1 WLR 292H-293D.
By section 115 of the 1999 Act persons “subject to immigration control” (thus including all asylum seekers) are excluded from the benefits provided under the 1992 Act, including income support. By section 116, section 21 of the National Assistance Act is, in effect, excluded in relation to persons to whom section 115 of the 1999 Act applies. As I understand it the general effect of those provisions is that asylum seekers are excluded from all state benefits except the schemes set up under the Asylum Support (Interim Provisions) Regulations (from 6 December 1999) or the Asylum Support Regulations (from 3 April 2000). However asylum support under those regulations continues until after the disposal of any appeal.
In consequence of these changes regulation 70(3A) of the Income Support Regulations was revoked, by regulation 3(7)(c) of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, with effect from 3 April 2000. However, by virtue of regulation 12(3) and (4)(a) of those Regulations, regulation 70(3A) of the Income Support Regulations continues to be applicable to an asylum seeker who has submitted on his arrival in the United Kingdom a claim for asylum on or before 2 April 2000, and has not ceased to be an asylum seeker. By virtue of regulation 12(5) of those Regulations a person ceases to be an asylum seeker for the purposes of regulation 12 “when his claim is recorded by the Secretary of State as having been decided (other than on appeal) or abandoned”.
As regards the claimant, the practical effect of the foregoing is as follows:
(i)If the Secretary of State is correct that her claim for asylum was “determined” for the purposes of Regulation 70(3A)(b)(i) of the Income Support Regulations on the basis of Mr Beaton’s note of 20 November 1999, she ceased to be entitled to income support as from that date. However, from 6 December 1999 until 14 days after the disposal of her appeal she was or is entitled to the support for asylum seekers provided under the Asylum Support (Interim Provisions) Regulations or, as the case may be, the Asylum Support Regulations, to the extent that she fulfils the conditions of those Regulations. Between 20 November 1999 and 6 December 1999 she was theoretically entitled to assistance under section 21(1) of the National Assistance Act, but this did not arise in practice because income support was in fact paid until 9 December 1999.
(ii)If the claimant is correct that her claim for asylum was not “determined” until 18 April 2000, she remains entitled to income support from 20 November 1999 to 18 April 2000, by virtue of the saving provisions of Regulation 12 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000. From 18 April 2000 until 14 days after the disposal of her appeal she was or is entitled to asylum support, under the Asylum Support (Interim Provisions) Regulations or the Asylum Support Regulations, as the case may be, to the extent that she fulfils the conditions of those regulations.
It is common ground that asylum support is less generous than income support.
The claimant’s evidence is that her income support ceased on 9 December 1999. On 6 March 2000 she applied to the London Borough of Southwark Social Services for support under section 21 of the National Assistance Act 1948. As I understand the legislation, at that stage the basis for any support to which she was entitled would have been the Asylum Support (Interim Provisions) Regulations, as Georgina Balmforth states in paragraph 22 of her witness statement, and not section 21 of the National Assistance Act. At all events, the claimant did not in fact receive any support under those Regulations or any other statutory provision in the period up to 18 April 2000. She says that that was because the Home Office had not confirmed her status, and she was living with the rest of her family who were receiving income support. Since August 2000, however, she has been receiving food vouchers to the value of £28 per week. She has found occasional work as a waitress.
— Immigration control
Under section 3(1)(a) of the Immigration Act 1971 (“the 1971 Act”), as amended, a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with that Act or provisions made thereunder.
Pursuant to section 3(2):
“(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter ...
If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the day of laying ... then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution.”
By section 4(1) and (2):
“(1) The power under this Act to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers ...
(2) The provisions of Schedule 2 to this Act shall have effect with respect to–
(a) the appointment and powers of immigration officers ... for purposes of this Act;
...
(c) the exercise by immigration officers of their powers in relation to entry into the United Kingdom, and the removal from the United Kingdom of persons refused leave to enter or entering or remaining unlawfully;”
By Schedule 2, paragraph 1:
“(1) Immigration officers for the purposes of this Act shall be appointed by the Secretary of State ...
(3) In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given to them by the Secretary of State ...”
By Schedule 2, paragraph 2(1):
2.–(1) An immigration officer may examine any persons who have arrived in the United Kingdom ... for the purpose of determining–
(a) whether any of them is or is not a British citizen; and
(b) whether, if he is not, he may or may not enter the United Kingdom without leave; and
(c) whether, if he may not, he should be given leave and for what period and on what conditions (if any), or should be refused leave.”
By Schedule 2, paragraph 6(1):
“6.–(1) ... where a person examined by an immigration officer under paragraph 2 above is to be given a limited leave to enter the United Kingdom or is to be refused leave, the notice giving or refusing leave shall be given not later than twenty four hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph; and if notice giving or refusing leave is not given him before the end of those twenty four hours, he shall (if not a British citizen) be deemed to have been given [leave to enter the United Kingdom for a period of six months subject to a condition prohibiting his taking employment] and the immigration officer shall as soon as may be give him written notice of that leave.”
The Statement of Changes in Immigration Rules (HC 395), have been laid before Parliament in accordance with section 3(2) of the 1971 Act. According to Paragraph 1, that Statement contains the Rules laid down by the Home Secretary “as to the practice to be followed in the administration of the Immigration Acts”. Rules 328 to 333, 346 and 348 (as in force at the material time in the version supplied to the court) provide:
“328 All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom’s obligations under the United Nations Convention and Protocol relating to the Status of Refugees. Every asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer for determination by the Secretary of State in accordance with these Rules.
329 Until an asylum application has been determined by the Secretary of State ... no action will be taken to require the departure of the asylum applicant or his dependants from the United Kingdom.
330 If the Secretary of State decides to grant asylum and the person has not yet been given leave to enter, the Immigration Officer will grant limited leave to enter.
331 If a person seeking leave to enter is refused asylum, the Immigration Officer will then resume his examination to determine whether or not to grant him leave to enter under any other provision of these Rules. If the person fails at any time to comply with a requirement to report to an Immigration Officer for examination, the Immigration Officer may direct that the person’s examination shall be treated as concluded at that time. The Immigration Officer will then consider any outstanding applications for entry on the basis of any evidence before him.
...
333 A person who is refused leave to enter following the refusal of an asylum application will be provided with a notice informing him of the decision and of the reasons for refusal. The notice of refusal will also explain any rights of appeal available to the applicant and will inform him of the means by which he may exercise those rights. ... The applicant will not be removed from the United Kingdom so long as any appeal which he may bring or pursue in the United Kingdom is pending.
346 Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which:
(i) is not significant; or
(ii) is not credible; or
(iii) was available to the applicant at the time when the previous application was refused or when any appeal was determined.
...
348 Special provisions governing appeals in asylum cases are set out in the Asylum and Immigration Appeals Act 1993, the Asylum and Immigration Act 1996 and the Asylum Appeals (Procedure) Rules 1996. Where asylum is refused the applicant will be provided with a notice informing him of the decision and of the reasons for refusal. At the same time that asylum is refused the applicant may be notified of removal directions, or served with a notice of the Secretary of State’s intention to deport him, as appropriate. The notice of refusal of asylum will also explain any rights of appeal available to the applicant and will inform him of the means by which he may exercise those rights.”
(It appears that rules 333 and 348 have since been deleted with effect from 2 October 2000 (Cmnd 4851), no doubt in connection with the coming into operation of the 1999 Act, but as far as I am aware these rules were in force at the material time.)
Section 8(1) of the 1993 Act (now section 69(1) of the 1999 Act) provides:
“A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom’s obligations under the Convention.”
An appeal thus lies to the special adjudicator against the refusal of leave to enter the United Kingdom: it does not lie, as such, against the Secretary of State’s determination of the claim for asylum.
In Georgina Balmforth’s witness statement she explains the relevant procedures and in particular the time lapse in this case between the Secretary of State’s decision of 20 November 1999 and the communication to the claimant of the reasons for the refusal of her claim to asylum and the notice of refusal of leave to enter the United Kingdom under cover of the letter of 25 April 2000:
“8. ... For applicants such as the Claimant, the position is as follows. After the asylum claim has been recorded as determined in the Home Office, a decision still has to be made as to whether the applicant is nonetheless entitled to be given leave to enter under any provision of the Immigration Rules and, if not, whether the applicant should nonetheless be given exceptional leave to remain outside the Rules. Under section 8(1) of the Asylum and Immigration Appeals Act 1993 in the Claimant’s case (and now section 69(1) of the Immigration and Asylum Act 1999) the right of appeal, on the ground that removal from the United Kingdom would be contrary to the United Kingdom’s obligation under the Refugee Convention, arises upon the refusal of leave to enter the United Kingdom at the time that removal directions are made.
9. The decision as to whether an applicant such as the Claimant should be given leave to enter the United Kingdom, despite the decision that her claim for asylum should not be upheld, is taken by the immigration officer at the relevant port, in this case Gatwick. At the time the Claimant’s case was considered, the procedure was that once the Home Office decision on the asylum claim was taken the relevant information was given to the port. Until May 2000 the normal practice was for the port to arrange what is called a refusal of asylum interview. Applicants would be asked whether they were happy to be interviewed, and whether they considered that they should be allowed to remain in the United Kingdom for any reason other than the unsuccessful asylum claim. Once that interview had taken place, or if the immigration officer’s examination was concluded because of a failure by the applicant to attend for interview, a formal decision would be issued. This would be accompanied by the detailed reasons for refusal of the asylum claim, and an applicant who had been refused leave to enter would be notified of the right of appeal on the ground that removal would be contrary to the Refugee Convention.
10. Further, whilst the final decision of the immigration officer is awaited, the Secretary of State remains willing to consider any further material which may be put forward in support of the claim for asylum if circumstances make it appropriate to do so. That is not because no decision or determination has been reached with respect to that claim. Rather, it is because the Secretary of State remains willing to reconsider that decision if circumstances make it appropriate. If further representations were received following the initial decision on the claim, the normal practice at the material time was for those representations to be considered if and when the applicant was refused leave to enter and appealed against the decision, with a view to the Secretary of State deciding the appropriate course to take on appeal.
11. Clearly, the decision on whether to grant or refuse leave to enter is not one which can be taken straightaway following the decision on the asylum claim. The sheer volume of such cases does not make that a practical possibility.
12. For completeness, although it is not relevant to this case, I should note that since October 2000 a “one stop” approach has been in place under which applicants for asylum are required to raise all issues and requests for admission at an earlier stage, with the result that the decision on leave to enter may be formally taken by the immigration officer upon receipt of the decision on the asylum claim, if no independent issues have been raised. In other cases, an interview may still be required. However, this was not the system at the time when the Claimant entered the United Kingdom, and so at the time when her asylum claim was decided, there was no means of short-circuiting the remainder of the process.
13. In the present case, the Claimant was given a notice dated 28th November 1999 which required her to attend for interview on 11th January 2000 “for further examination for the purpose of deciding whether or not you may be granted leave to enter”. This would have been the refusal of asylum interview, as referred to above ...”
Ms Balmforth then goes on to explain the subsequent course of events which I have already set out above. She states that it is unclear why the interview of 11 January 2000 was cancelled, since it was not normal practice to do so in the circumstances. It is however accepted in her witness statement that that interview was cancelled by the immigration officer with a view to consideration by the Home Department of the further representations as to asylum submitted on behalf of the claimant on 24 December 1999.
Salem’s case
In Salem’s case the claimant had arrived in the United Kingdom on 17 April 1997 and told what Sir John Balcombe described as ‘a tissue of lies’ when interviewed by the immigration officer. An initial note by the Home Office Asylum Directorate dated 7 May 1997 read “Asylum has been refused on 7.5.97 and the claim is hereby recorded as having been determined”. Mr Salem was not however informed and no further action was taken, possibly because it was by then known that Mr Salem was preparing further representations. An interview with the immigration officer fixed for 6 August 1997 was not held. Representations on behalf of Mr Salem were submitted on 15 August 1997, and acknowledged by the Asylum Directorate on 12 September 1997 in a letter which also asked whether further evidence was now available for consideration. On 5 November 1997 Mr Salem received a letter from the Benefits Agency telling him that his income support had been terminated as of 5 September 1997, the Benefits Agency having been informed by the Home Office that the application for asylum had been refused. It appears that there had been an administrative delay in the Home Office in informing the Benefits Agency of the determination of 7 May 1997, and a further delay before the Benefits Agency had acted on the information received from the Home Office.
The result of Salem’s case (Hobhouse, Brooke LJJ and Sir John Balcome) may be briefly summarised:
(1) All three members of the court held that the concept used in Regulation 70(3A) was that of a determination recorded by the Secretary of State, rather than the concept of notification to the person affected. There was no basis, on the statutory language used, for inferring that the loss of income support could not occur unless and until the Secretary of State’s determination was communicated to the person concerned: Hobhouse LJ at p. 812B-E, 817C-G; Sir John Balcombe at 830H-831A, Brooke LJ at 823E.
(2) Brooke LJ and Sir John Balcombe agreed that on the facts there had been a “determination” of Mr Salem’s claim for asylum on 7 May 1999 which had been duly recorded. In consequence, Mr Salem had ceased to be an asylum seeker and was not entitled to benefit from that date. The willingness of the Secretary of State to consider later representations did not mean that the matter had not been “determined”, but was merely a recognition of the Secretary of State’s continuing duty to observe the Convention and to take account of any later representations which might lead him to reconsider this earlier decision (Sir John Balcome at 832F to 833B, Brooke LJ at 827B to 828B)
(3) Brooke LJ considered in particular that the provisions in the Statement of Changes in Immigration Rules, namely Rules 328 to 333, introduced in the context of the 1993 Act placed the duty on the Secretary of State to make a determination, with the result that the analysis in Secretary of State for the Home Department v Thirukamar [1989] Imm AR402 was no longer appropriate (824D to 826B). Brooke LJ did however comment that “It also seems very unsatisfactory that a vulnerable person’s statutory right to benefit should be stopped without any reasons being given for the stoppage, save that the benefit authorities have been told by the Home Department that his/her asylum claim has been refused for some unexplained reason, although this appears to be the clear effect of the Act and the regulations we have had to construe.” (p. 829G).
(4) Balcombe LJ considered that there was no want of fairness in the procedure adopted. Since Mr Salem had not been refused permission to enter, no question of giving reasons for refusal had yet arisen. Informing him of the decision in May 1997 would have made no difference: the delay after that date was largely due to the consideration by the Asylum Department of Mr Salem’s “new story” and “wholly different tale”. Mr Salem had been fortunate in receiving four months benefit to which he was not entitled (p. 833D-F).
(5) Hobhouse LJ, dissenting, considered that, in principle, “a decision entered upon a file but otherwise unacted upon and uncommunicated to the affected party ought in principle to have no greater status than as a step in the decision making process” (p. 818 H): see Rafiq’s case [1988] Imm AR 193. He cited, notably, the decision in Thirukumar where the Court of Appeal did not consider the decision of the Asylum Directorate to be determinative, in circumstances where the immigration officers learnt fresh facts during the reasons for refusal interview and referred the matter back to the Home Office. Hobouse LJ concluded on the facts that the Secretary of State
“had chosen before 5 September 1997 not to treat Mr Salem’s application as one which had been determined. In reality they were still treating him as an applicant for asylum whose application needed further investigation and consideration before a final decision could be taken by the Secretary of State” (p. 822 A-B).
Hobhouse LJ further held (at p. 822 E-G) that there had been a lack of fairness:
“The Secretary of State has acted in what is on any view an inconsistent fashion. He chose not to disclose to Mr Salem what had been going on internally within the departments for which he was responsible. He did not comply with his obligation under rule 348 within a reasonable time or at all. He left Mr Salem to discover about the consequences for his benefits position simply to his discovering that his benefits were, without any explanation being given or offered, no longer being paid. He was left in a position where he had been deprived of the option (whether he chose to exercise it or not) to progress his application to the stage where it would be considered by a special adjudicator as is his ultimate right, in accordance with the stringent and rapid timetable that has now been laid down for that procedure. The facts of this case disclose elements of delay and maladministration on the part of a government department. In terms of fairness, it would in my judgment be unfair to treat Mr Salem as anything other than an asylum seeker on 5 September 1997.”
Hobhouse LJ concluded (at p. 823 C-D):
“... the only effective decision which the Secretary of State has taken is to stop Mr Salem’s benefits. That puts the cart before the horse. It is not an approach authorised by the regulations. The stopping of benefits can only be as a result of the determination, by refusal, of the application for asylum, which determination has not in fact yet occurred in the case of Mr Salem. The Secretary of State has developed a concept of the undeterminative determination; I do not accept that this is what is contemplated or authorised by the regulations.”
It appears from the report of the appeal to the House of Lords [1990] AC 450, which did not in the event proceed, that the Secretary of State informed Mr Salem that his application for asylum had been refused on 15 May 1998, nearly two months after the decision of the Court of Appeal. He was subsequently granted refugee status following an appeal to the special adjudicator.
In R v Secretary of State for the Home Department ex parte Karaoui (unreported, 11 March 1997) Kay J essentially took the same view as the majority of the Court of Appeal later took in Salem, namely that the “determination” by the Secretary of State took effect when it was “recorded” and did not require either notification to the applicant or reasons. Kay J held, however, that the “record” had to be “a reliable document that can be consulted and which clearly shows when the decision was made and what the decision was” (p. 8). Salem has subsequently been applied by Scott Baker J in R (Paulo) v Secretary of State (18 May 2001, unreported).
Arguments of the parties
The claimant submits first that if the ‘record’ in this case is Mr Beaton’s note, it is not a sufficient record for the purposes of Regulation 70(3A)(b)(i).
Secondly, there was no ‘determination’ either in fact or law, for the purposes of that Regulation. Representations were submitted in December 1999, and the interview fixed for 11 January 2000 was not held in order to enable the representations to be considered: that is inconsistent with a ‘determination’ having been made on 20 November 1999.
Thirdly, under the Immigration Act 1971, the final decision on leave to enter is that of the immigration officer: that is the point in time when the decision (including on the question whether the person concerned has made out his claim to refugee status) is crystallised and recorded. The earlier “determination” by the relevant Directorate of the Home Department can only be provisional, at best a step in a process that is not yet final: see Hobhouse LJ in Salem, and Thirukmar [1989] Imm AR 402 at 409, 414. If a decision granting leave to remain does not take effect until communicated (see Rafiq’s case, unreported, 13 January 1998), by parity of reasoning the same must be true of the reverse situation. The analysis of Brooke LJ in Salem is erroneous in overlooking the role of the immigration officer under section 4(1) and paragraphs 2 and 6 of Schedule 2 of the 1971 Act. The immigration rules are rules of practice which cannot override the statute.
Fourthly, the word ‘determined’ should not be given a meaning that interferes with appeal rights: see by analogy the JCWI case. Where two sets of provisions (the asylum appeal process and regulation 70A(3)(b)(i)) appear to conflict, the Court should adopt a construction which most favours the individual’s rights. Many asylum seekers are highly vulnerable, some prone to panic or suicide at the prospect of being returned to the country from which they have fled. To be told that there has been a decision on their case, but not to be given the reasons, nor to be able to appeal, nor even begin to prepare an appeal, for a long time (in this case five months) tends to impede the right of appeal, especially where in the meantime the asylum seeker may face real difficulties in supporting himself or face destitution. At the least, the asylum seeker’s only hope of having the benefits restored (by winning his appeal) is unreasonably delayed. A right of access to the courts cannot be unreasonably cut down (see Lord Bingham in ex parte Daly, [2001] 2 WLR 1622 at 1625H). Section 3 of the Human Rights Act 1998 applies to legislation wherever enacted.
Fifthly, even if Article 6 of the European Convention on Human Rights and Fundamental Freedoms (the ECHR) does not apply to immigration appeals as such, the principles of fairness do apply: MNM v Secretary of State [2000] INLR 576. Article 6 of the ECHR applies, in any event, to decisions to withdraw social security benefits. The appeal process provided under the social security legislation is not an adequate compliance with Article 6 because it is impossible to make an effective challenge without knowing why the Home Department has instructed the Benefits Agency to stop benefits.
Sixthly, the majority decision in Salem leads to a potential violation of Article 3 (prohibition of torture and of inhuman or degrading treatment or punishment) and Article 8 (right of respect for private and family life, home and correspondence) of the ECHR. In this case the claimant was unable to benefit from the interim asylum support scheme, and even if she had would have had to be destitute or threatened with destitution within 14 days, which would have interfered with her moral and physical integrity. The decision of the majority in Salem creates a lacuna in the entitlement to benefit: a successful appellant who is ultimately recorded as a refugee will receive income support retrospectively but has to manage without during the period from the date of the note in the Home Department file to the decision on a successful appeal. An appellant who succeeds in being granted exceptional leave to remain may again receive income support from the date of the grant of exceptional leave, but in this case income support is not back-dated.
Seventhly, the majority decision in Salem discriminates between asylum seekers, persons of different nationality, and British citizens, contrary to Article 6 and Article 14 (prohibition of discrimination) of the ECHR.
Eighthly, even if there was a “determination” of the asylum claim on 20 November 1999, that decision had no legal effect because it was not communicated to the claimant within a reasonable period. There is no explanation as to why the claimant could not have been advised of the reasons for refusal of her asylum claim at the same time as the Benefits Agency, rather than five months later. It is a fundamental rule of law that where a person has requested a decision which the decision-maker is obliged to take, the person concerned is entitled to receipt of that decision within a reasonable time (see by analogy the Article 6 decisions under the ECHR). The Secretary of State’s efforts in this regard have remained woefully inadequate despite criticisms by the courts and earlier assurances by the Secretary of State that his practice was to try and ensure that the substantive decision is taken and served as soon as possible.
Ninthly, the modern approach to stare decisis (see Lewis and others v Attorney General of Jamaica [2001] 2 AC 50) permits this court to depart from Salem, even in respect of the submissions which were considered in that case. A number of the above submissions were not raised in Salem.
Finally, there is no discretionary reason for the court to refuse relief: the delay is attributable to difficulties in obtaining legal aid and the only alternative remedy possibly available (via an appeal to the Social Security Commissioners) is neither adequate nor appropriate.
The defendants submit that the claimant must fail if Salem is correct, and that it is not open to the claimant to challenge Salem in this court. Salem decided six points (i) that the Secretary of State is entitled to record a determination at a time before the immigration officer refuses a right to enter or a right to appeal arises: p. 830H; (ii) that there can be a ‘record of a determination’ without notification: p. 812B-C; (iii) that there is no duty to notify the claimant when the determination is made and before the refusal of leave to enter: p. 830H; (iv) that a willingness to take account of further representations and reconsider does not mean that a claim has not been recorded as determined: p. 839C-D and 833A-B; (v) that there is nothing so unfair as to be unlawful in recording the determination without notifying at the same time (p. 833); and (vi) that a determination of the kind to be found in the present case is a sufficient ‘record’: p. 832C.
Salem was not decided per incuriam and is binding: Cassell v Broome [1972] AC 1027 and Duke v Reliance Systems [1988] 1 QB 109. The only question for this court is whether a determination has been recorded.
There is no fetter on the right of appeal. Even if the Secretary of State’s determination had been notified with reasons the primary legislation confers no right of appeal against the Secretary of State’s decision on asylum: the appeal is from the decision of the immigration officer. There is no interference with the right of appeal as in JCWI, because assistance is provided by the system of asylum support introduced in 1996. In any event, any delay in communicating the determination in this case was caused by the efforts of the claimant’s solicitors to have the “reasons for refusal” interview postponed.
The claimant’s points on the Human Rights Act 1998 are unfounded, since the events here are before 3 October 2000: R v Lambert [2001] 3 WLR 206. Even when Salem was argued, the ECHR was an aid to construction: R v North West Lancashire Health Authority ex parte A [2000] 1 WLR 977. In any event there is no inhuman or degrading treatment under Article 3 because of the asylum support scheme. Article 6 of the ECHR does not apply to refugee status and there is no breach of Article 6 in respect of the appeal from the decision of the Benefits Agency. Article 14 does not apply in that asylum seekers have the same right of appeal as anyone else who is denied benefit. The difference is in the substance of the legislation, which gives asylum seekers different benefits from those not subject to immigration control.
The defendants also argue that the claimant is estopped because the matter has already been determined by the tribunal which heard the appeal against loss of benefit: see Barber v Staffordshire County Council [1996] 2 All ER 748. As to the Court’s discretion, the defendants say (i) there has been excessive delay; (ii) now that it is known that the claimant did not have a well-founded fear of persecution, as the special adjudicator found, it would be wrong to grant her income support up to 18 April 2000; (iii) the claimants exaggerate the importance of this case as a test case.
Analysis
In the vast majority of administrative decisions there are four elements which occur contemporaneously or at least very closely together: (i) the date on which the decision has legal effect; (ii) the date when the decision is notified to the addressee; (iii) the date when reasons are given; and (iv) the date when a right of appeal arises. The effect of the construction of the statutory provisions favoured by the Court of Appeal in Salem is to disconnect the date of element (i) (20 November 1999) by some distance from the dates of elements (ii) to (iv) (20 April 2000). The claimant’s alternative construction would reconnect all four elements at a single date, namely 20 April 2000. In my view, the essential question is whether there is an alternative construction of regulation 70(3A)(b)(i) as the claimant contends, and if so, whether it is open to this court to adopt that alternative construction.
— Stare decisis
In accordance with normal principles the decision of the Court of Appeal in Salem, including the majority decision, is binding on this court unless it is properly distinguishable or the passages relied on were obiter. I can see no clear ground for distinguishing Salem on the facts. The passages relied on by the defendants were not obiter.
As to the possibility that Salem was decided per incuriam, Lord Diplock points out in Broome v Cassell [1972] AC 1027 that while the doctrine of per incuriam may entitle an appellate court not to follow one of its own previous decisions that doctrine does not entitle a judge sitting in the High Court to disregard a decision of the Court of Appeal: p.1131. Moreover, in Duke v Reliance Systems [1988] 1 QB 108, 113, Lord Donaldson MR said that the doctrine of per incuriam:
“... only applies where another division of this court has reached a decision in the absence of knowledge of a decision binding upon it or a statute and that in either case it has to be shown that, had the court had this material, it must have reached a contrary decision. That is per incuriam. I do not understand the doctrine to extend to a case where, if different arguments had been placed before it or if different material had been placed before it, it might have reached a different conclusion.”
I reject the claimant’s suggestion that more recent authorities such as Lewis and others v Attorney General of Jamaica [2001] 2 AC 50 have modified the above position. That case, and other examples cited in that case by Lord Slynn of Hadley, cover the circumstances where an appellate court is prepared to depart from its own previous decisions, and do not affect the duty of the High Court to apply decisions of the Court of Appeal.
— The record
The claimant’s first submission is that there is no sufficient “record” in this case. In Salem the Court of Appeal held that the claim for asylum had been recorded as determined on 7 May 1997 on the basis of an internal file reading: “Asylum has been refused on 7.5.97 and the claim is thereby recorded as having been determined.” To the extent that Salem is binding on this court, I am bound to find that Mr Beaton’s note of 20 November 1999 constitutes a “record” of an internal determination made on that date. It is very similar in terms to the note at issue in Salem.
— A “determination”
The claimant’s second submission is that on the facts of this case, there was no real “determination” of the claim for asylum on 20 November 1999. This was the point on which the majority in Salem differed from the minority on the facts of that case. Hobhouse LJ considered that, on the facts, the element of finality implicit in a determination was lacking: 818A-822E, especially 821F-822D. Brooke LJ and Sir John Balcombe, on the other hand, considered that the facts were consistent with the Secretary of State having made a determination on 7 May 1997, but being prepared to consider later representations in accordance with his continuing duty to comply with the Convention: see 827B-828B, 830B and 832F to 833B.
In the present case, the note of 20 November 1999 states that a determination has been made for the reasons given in “the letter aside”. It may well be that the “letter aside” referred to is the letter dated 20 November 1999 signed by Mr Beaton and eventually sent to the claimant on 25 April 2000. No letter was sent to the claimant in November 1999, but the practice at the time appears to have been to read the letter at a subsequent ‘reasons for refusal’ interview. The inference in this case is that such an interview was due to take place on 11 January 2000. The claimant’s present solicitors then submitted further representations and documents on 24 December 1999, and on 10 January 2000 succeeded in persuading Mrs Sale of the Immigration and Nationality Directorate at Gatwick to cancel the interview fixed for 11 January so that those further representations could be considered. The later interviews fixed for 7 March 2000 and 17 April 2000 were not attended by the claimant. The notice of refusal of leave to enter was prepared immediately thereafter, since it is dated 18 April, and was despatched under cover of the letter of 25 April 2000 together with the reasons for refusal letter dated 20 November 1999.
On those facts it seems to me somewhat less easy to find, as Hobhouse LJ did on the facts of Salem, that the Secretary of State had in fact subsequently “undetermined” any internal determination he had made on 20 November 1999. The most that can be said is that the willingness to adjourn the interview fixed for 11 January 2000 is an inconclusive indication that those concerned at Gatwick did not consider that the matter had been finally determined. On the other hand, I doubt whether the adjournment of the interview in fact led to any further consideration of the claimant’s representations, since Georgina Balmforth states that the practice at the time was not to consider such further representations except in the context of any subsequent appeal the applicant might make against the refusal of leave to enter.
In these factual circumstances, and having regard to the reasoning in Salem, I would simply hold that the submission of further representations on 24 December 1999, and the fact that Mrs Sale was persuaded to cancel the interview fixed for 11 January 2000, are not sufficient in themselves to establish that there was in fact no internal “determination” on 20 November 1999.
— But what is the relevant determination?
Thus far, I would accept that there is a record of a determination of an internal kind made on 20 November 1999. I also accept, as I must on the statutory language, that the relevant concept for the purposes of Regulation 70(3A)(b)(i) is “the date on which [the determination] is so recorded”. But those conclusions do not seem to me necessarily to answer a further question, namely whether the internal “determination” of 20 November 1999 is in fact the relevant determination for the purposes of Regulation 70(3A)(b)(i). The words “having been determined” in that regulation do not further identify what determination is being referred to, nor at which stage of the procedure any such determination may validly be “recorded”.
The defendants say that the relevant “determination” is self evidently the internal “determination” made by the Secretary of State on 20 November 1999. The claimant says, on the basis of a number of overlapping arguments advanced in her third to ninth submissions, that the relevant “determination” must be taken to arise on, or at least no earlier than, 18 April 2000, at the same time as the refusal of leave to enter the United Kingdom. On this view, “the date on which the determination is recorded” for the purposes of the Regulation must be taken to be 18 April 2000.
It seems to me that this question is basically a question of construction, in which the intention of Parliament should be ascertained by taking into account the legislative scheme as a whole, any relevant general principles of English administrative law, and the mischief to which Regulation 70(3A)(b)(i) is directed. I shall first approach the matter as if free of authority, and then consider whether the conclusion I would otherwise have reached, at least provisionally, is open to me in the light of Salem.
— The legislative scheme as a whole
Under section 4(1) of the 1971 Act and the relevant provisions of Schedule 2, the final decision on leave to enter rests with the immigration officer at the conclusion of his examination, although he must act in accordance with any relevant instructions of the Secretary of State. According to section 3(2) of the 1971 Act the immigration rules are rules “as to the practice to be followed” in the administration of the Act. Although they are required to be laid before the House of Commons, and may be the subject of a negative resolution (section 3(2)) the rules are not a statutory instrument. They have a higher status than mere internal rules, since the Secretary of State is no doubt bound to follow them, but they remain nonetheless rules of administrative practice.
Up until the coming into force of HC 395 in 1994, there was little doubt that the date when a legally determinative decision was made on a claim for asylum was when the immigration officer concluded his final examination and refused leave to enter under section 4(1) of the 1971 Act, even though under the former rule 73 the matter had to be referred to the Home Office “for decision”. That appears from the structure of the Act and the decision of the Court of Appeal in Thirukumar, cited above, made in the light of the then rules. It is true that HC 395 introduced new rules which spell the procedure out in more detail (see paragraph 54 above) but I see force in the claimant’s submission that these new rules are rules of practice: they cannot modify the Act. It is not immediately apparent that an internal administrative determination made pursuant to the “rules of practice” set out in rules 328 and 329, could have legal effect vis à vis an asylum seeker prior to the decision of the immigration officer under section 4(1).
The practice under the immigration rules is that the communication of the Secretary of State’s decision to refuse a claim for asylum normally takes place at the same time as the refusal of leave to enter. Rule 348 provides:
“Where asylum is refused the applicant will be provided with a notice informing him of the decision and of the reasons for refusal. At the same time that asylum is refused the applicant may be notified of removal directions, or served with a notice of the Secretary of State’s intention to deport him, as appropriate. The notice of refusal of asylum will also explain any rights of appeal available to the applicant and will inform him of the means by which he may exercise those rights. (Emphasis added.)”
Although the opening words “Where asylum is refused” are not perhaps conclusive in themselves as to the moment of time when that refusal takes effect, the general sense of the first part of this passage is that the “notice informing him of the decision and of the reasons for refusal” is to be given to the asylum seeker at the time of the decision of refusal, i.e. in practice at the same time as the refusal of leave to enter. This is made explicit in the second part of the passage which states that removal directions or notice of intention to deport will be notified or served “At the same time that asylum is refused”. In other words, the time of the decision to refuse asylum and the time when the directions are given is the same. For the purposes of Rule 348, the decision on asylum is treated as contemporaneous with the refusal of leave to enter.
In the present case the letter of 18 April 2000 states that the Secretary of State has decided to refuse the claim for asylum, and encloses the reasons for refusal. The immigration officer refuses leave to enter. The directions for the claimant’s removal are given at the same time. The rights of appeal are explained. In my view, on those facts it may reasonably be inferred that in this case the date when the refusal of asylum was treated as having legal effect under the immigration rules was 18 April 2000.
It is true that the question whether a would-be immigrant should be refused leave to enter, and the question whether that same immigrant has a valid claim for asylum are distinct questions, although in the vast majority of cases the answer to the latter question will automatically determine the answer to the former. However, a decision to refuse leave to enter necessarily implies and incorporates a decision to refuse a claim for asylum, otherwise leave to enter, at least in a limited form, would be given. In the light, notably of section 4(1) of the 1971 Act and Rule 348 of the immigration rules, I can see no compelling grounds for treating the date when the asylum claim is determined (in the sense of having legal effect) as any different from the date when leave to enter is refused.
If, on the true construction of the legislative scheme as a whole, the determination of the claim for asylum takes place on the same date as the refusal of leave to enter, that construction has the further advantage of establishing a clear and legally certain point of reference. Such a point of reference avoids the kind of factual difficulties which troubled (and ultimately split) the Court of Appeal in Salem, and notably the need to go into the perhaps somewhat awkward question of whether a given set of facts reveals “a determination which is not determinative” (Hobhouse LJ) or a determination that is determinative but subject to further consideration in the light of further representations (Brooke LJ and Sir John Balcombe).
For the foregoing reasons I would be provisionally inclined to the view that, looked at overall, the legislative scheme tends to suggest that the date of the relevant ‘determination’ of the claim for asylum is to be taken to be 18 April 2000 rather than 20 November 1999. At the least, the legislative scheme supports the view that more than one construction of regulation 70(3A)(b)(i) is possible. If the latter is the case, one must fall back on the usual techniques in order to determine which construction is correct.
— General principles
The problem in the present case is the legality of an administrative decision withdrawing a benefit (income support) with legal effect from a date prior to the notification of that decision and the giving of reasons, where there is no suggestion of misrepresentation or fraud on the part of the beneficiary. In many continental legal systems, the answer to such a problem would be deduced by applying relatively well-established general principles, to be found in case law or codified in statute (see generally Schwarz, European Administrative Law, 1992 especially Chapter 6). Some of these principles, such as legal certainty and legitimate expectations, have become part of law of the European Communities. For example, unless for some reason the doctrine of legitimate expectations does not apply “A fundamental principle in the Community legal order requires that a measure adopted by the public authorities shall not be applicable to those concerned before they have the opportunity to make themselves acquainted with it.”: case 98/78 Racke v Hauptzollamt Mainz [1979] ECR 69 at paragraph 15. See also case T-115/94 Opel Austria v Council [1997] ECR II 39 at paragraph 124, and Brealey and Hoskins, Remedies in EC Law, 1998, at pp. 33 to 48.
The common law focuses less on general principles and more on interpreting the particular statutory provision in question in order to determine the intention of Parliament in the context of the individual case. That approach does not, however, mean that in dealing with a problem of statutory interpretation, certain presumptions do not come into play. Where the statutory wording is open to more than one construction, it is to be presumed that the legislature intended the meaning that is in conformity with the presumption concerned, for example that the statute would not have been intended to have retroactive effect, or breach fundamental human rights, or infringe legitimate expectations and so on.
It would seem to me that three presumptions could be relevant to the problem of statutory construction in the present case: (a) a presumption that Parliament would not, in the absence of clear words, have intended to withdraw income support from a beneficiary acting in good faith with effect from a date earlier than the communication of the decision; (b) a presumption that, where reasons are required to be given, the reasons are normally to be communicated as close as possible to the time the decision takes effect; and (c) a presumption that the exercise of any right of appeal should not be unduly delayed.
As regards the first of these presumptions, the defendants submit that the date on which the claimant lost her entitlement to income support is the date on which the determination was recorded internally in the relevant file in the Home Department. The logical consequence of that approach is that during the period of inevitable delay while the decision is being notified to the Benefits Agency, and the Benefits Agency is taking administrative action to stop the payment, there is strictly speaking no legal basis upon which income support can continue to be paid. In the present case these “unlawful” payments continued for some three weeks but, depending on the efficiency of the system or lack of it, the delay could be for a much longer period, as in Salem. It is unlikely that such payments could ever be recoverable in law, even if such recovery were practicable, or even possible, under the Social Security Administration Act 1998. At the very least the asylum seeker would surely have a legitimate expectation that he would not be liable to repay income support received in good faith in respect of a period when he was unaware of the existence of any decision putting an end to his entitlement and had expended the money accordingly.
It is perhaps unlikely that Parliament could have intended that Regulation 70(3A)(b)(i) should be construed so as to give rise to an apparent legal void in relation to the payment of benefit in this case between 20 November 1999 and 9 December 1999. But if, legally speaking, income support could not be stopped with effect from 20 November 1999, consistently with the requirements of legal certainty and legitimate expectation, it is hard to see how the internal decision of 20 November 1999 could have had legal effect from that date. If that is correct, it is difficult to identify any other date from which the decision could take effect other than 18 April 2000. This seems to me to be an example of the principle stated by Hobhouse LJ, with which I would respectfully agree, that “a decision entered upon a file but otherwise unacted upon and uncommunicated to the affected party ought in principle to have no greater status than as a step in the decision making process”.
As to the second presumption regarding the communication of reasons, it has already been seen that rules 333 and 348 of the immigration rules require that reasons be given for the refusal of claim to asylum, so the obligation to give reasons is not in issue in this case. The question is, where there is an obligation to give reasons for an administrative decision, is there any presumption that those reasons will be given as close as possible to the time of the decision? Although no authority directly in point has been drawn to my attention, I would have thought that where reasons are required to be given for an administrative decision it may generally be presumed that Parliament intended the reasons to be given at the time of the decision, or at least without undue delay. Apart from the legal uncertainty that would otherwise arise, it appears to be a recognised principle that the reasons for a decision must be those of the decision-maker as they were at the time of the decision, subject perhaps to some latitude for further elucidation, but not wholly new reasons: see R v Westminster City Council ex parte Ermakov [1996] 2 All ER 302 and subsequent cases. Unless there were some rule or presumption to the effect that the reasons should be given as contemporaneously as possible to the taking of the decision, it would be rather hard to be certain whether any reasons later given were in fact the reasons relied upon by the decision maker at the time the decision was taken.
I have already pointed out above that Rule 348 implies, and the practice of the Immigration and Nationality Department confirms, that the reasons for the refusal of a claim for asylum are given at the same time as the refusal of leave to enter, which suggests to me that that is the point in time when the claim for asylum is considered to be ‘determined’. That view would be supported by the presumption to which I have just referred, namely that, other things being equal, it can reasonably be presumed that Parliament would have intended the duty to give reasons to be complied with on the occasion of, or as close as possible to, the relevant decision or determination.
What seems to me to be rather unlikely is that Parliament would have intended the reverse situation, namely that a “determination” was to be treated as effective from the date of an internal file note, even though no obligation arose to give any reasons as at that date, and would not arise at all until months later. If such were to be the meaning of Regulation 70(3A)(b)(i) the decision making process would lack transparency.
It may be objected that this line of reasoning is untenable because section 94(3) of the 1999 Act expressly refers to a claim being determined on notification to the claimant, whereas regulation 70(3A)(b)(i) makes no reference to the concept of notification. However, the fact that section 94(3) of the 1999 Act has made the requirement of notification explicit does not to my mind rule out the possibility that it was all along implicit that “the determination” for the purposes of regulation 70(3A)(b)(i) was to be treated as that occurring on the occasion of the refusal of leave to enter, in which event the question of an unnotified determination would simply not arise.
I agree with the view of Scott Baker J in Paolo, cited above, that the reason why the draftsman of regulation 12(5) of the 2000 Regulations used the word “decided” rather than the word “determined” that is used in Regulation 70(3A)(b)(i) was probably to signal what was assumed to be a difference between the interpretation of the concept of “determined” for the purposes of the entitlement to asylum support under section 94 of the 1999 Act and the interpretation of the concept of “decided” for the purposes of entitlement to income support under the transitional provisions in regulation 12(5), thus preserving the effect of the decision in Salem. However, the use by the draftsman of regulation 12(5) of the 2000 Regulations of that form of words is not necessarily conclusive either. If it was always implicit in regulation 70(3A)(b)(i) that the date of the determination is the date of the refusal of leave to enter, that conclusion must equally be implicit in regulation 12(5) of the 2000 Regulations.
The third presumption, that Parliament would not have intended that the exercise of a right of appeal should be unduly delayed, is in my view implicit in the general principle that access to the courts should not be obstructed. If the determination in this case was made by virtue of an internal entry in the Home Department file on 20 November 1999, it is common ground that no right to appeal that determination arose until leave to enter was refused on 18 April 2000. Leaving aside the separate question of the allegedly inadequate level of support available to the claimant during that period (see below), I would broadly accept the claimant’s submission that it is, to say the least, unsatisfactory that a purportedly final decision is reached on a claim for asylum, but that no right of appeal arises until perhaps months later, with the asylum seeker being kept in the dark about the reasons and unable to prepare his appeal in the meantime. I find it difficult to presume that that was really the result that Parliament intended. The alternative construction, whereby the relevant determination of the claim for asylum is not the date of the internal note, but the date of the later determination which necessarily occurs on the occasion of the refusal of leave to enter, avoids this “gap” in the rights of appeal.
In my view the three presumptions indicated above tend to support the alternative construction advanced by the claimant. On the ordinary meaning of words “asylum seeker” would seem to connote someone who had not yet received a decision on their claim to asylum.
— The mischief
It is suggested in Karaoui that the intention of Regulation 70(3A)(b)(i) was to remove income support during the period when an asylum seeker was pursuing an appeal, on the premise that the vast majority of such appeals were hopeless, and that the appeal system was being used abusively for the purpose of prolonging the entitlement to income support. But if that was the mischief, then it can be argued that the construction of Regulation 70(3A)(b)(i) defended by the Secretary of State and accepted in Salem goes much further than that, since it deprives the asylum seeker of income support in the period before his right to appeal has even arisen. It is one thing to take away income support in order to discourage hopeless appeals; it is perhaps quite another to take it away in respect of a period when there is as yet no question of pursuing a hopeless appeal, or even preparing an appeal, because there is as yet nothing to appeal.
The alternative construction suggested by the claimant’s submissions still achieves the object of discouraging hopeless appeals against refusals of asylum because it removes income support from the moment when the right to appeal arises. That perceived mischief is thus addressed. Nothing before me suggests an obvious reason for construing the legislation as applying in the earlier period before there can be an appeal.
I add that, had everything gone according to plan in this case, the claimant would have presumably been given the reasons for the refusal of her claim to asylum at the interview of 11 January 2000. Leave to enter would have been refused and, on the claimant’s argument, the “determination” made on that date. In those circumstances, if the claimant is right, only one month’s income support would have been in issue, from 9 December to 11 January. It is perhaps unfortunate, from the point of view of the Secretary of State, that that interview was ever cancelled. I do not suggest that this claimant was ‘trying to play the system’ but a firm policy of holding the reasons for refusal interview as soon as possible after the internal determination, despite attempts to submit late representations would obviously have significantly reduced the amount of income support being made.
Consideration of the mischief, together with the other matters discussed above, leads me again to the conclusion that there is much to be said for the construction of regulation 70(3A)(b)(i) advanced by the claimant.
— The effect of Salem
It is, however, self-evident from the judgment in Salem that the construction of that regulation was the principal issue in that case and that the legislative scheme was considered. It is true that in Salem the choice between the two alternative constructions was perhaps less obvious, because in Salem the final determination implicit in the refusal of leave to enter had not yet occurred. Nonetheless, in all the circumstances it seems to me that I am bound by the decision in Salem. Despite the reservations expressed by Hobhouse LJ, and the unsatisfactory state of affairs to which Brooke LJ referred at p. 829G, I hold that the alternative construction suggested by the claimants is not one that it is open to me to adopt in this court, unless there is some compelling reason to the contrary.
— The Human Rights arguments
I therefore turn to deal with the group of arguments advanced by the claimant based on the coming into force of the Human Rights Act 1998, and the alleged violations of Articles 3, 6 and 14 of the ECHR on which the claimant seeks to rely as indeed providing a compelling reason for distinguishing or departing from Salem.
To my mind the insuperable difficulty that the claimant faces in advancing these arguments on the basis of the Human Rights Act 1998 is that that Act came into force on 2 October 2000, whereas the decisions complained of in this case were on 20 November 1999 (the contested ‘determination’) and 9 December 1999 (the cessation of income support). On any view the claimant’s right to income support came to an end at the latest on 25 April 2000. This matter therefore wholly antedates the coming into force of the Human Rights Act 1998. In R v Lambert [2001] 3 WLR 206 the House of Lords held that apart from the limited exception applicable to legal proceedings brought by or at the instigation of a public authority, which is not relevant for present purposes, that Act is not intended to apply to things happening before 2 October 2000: see section 22(4) and notably the speeches of Lord Slynn at §§11-12, Lord Hope at §§95-117 (especially at §§111, 115-116), Lord Clyde at §§137-148 (especially §§142, 144 and 146) and Lord Hutton at §§169-170 and 173.
Although that case concerned the correctness of the summing up in criminal proceedings in a trial which was concluded before 2 October 2000, in which the defendant’s appeal reached the House of Lords after that date, the principles to be derived from those speeches seem to me to be of general application. In particular, the obligation in section 3(1) of the Act to read and give effect to legislation in a way which is compatible with Convention rights, which applies, under section 3(2), to legislation “whenever enacted”, does not in itself oblige the court retrospectively to interpret legislation such as Regulation 70(3A)(b)(i) in such a manner as to change the meaning which that regulation had, on its proper construction, at the time when the decisions in question in these proceedings were taken at the end of 1999.
I would add that, in any event, the ECHR relates to civil rights, not to economic or social rights. The fact that, in the relevant period, the claimant potentially benefited from asylum support rather than income support does not seem to me to engage either Article 3 or Article 14 of the Convention. It is common ground that Article 6, as such, does not apply to immigration cases. Even if Article 6 applies to social security appeals (and I would leave that point expressly open, since income support is a benefit paid under public law), I can detect no breach of Article 6 in this case in that regard.
If and in so far as the claimant invokes a general principle of ‘fairness’ by analogy with Article 6, my view is that the considerations relied on, namely that it is not fair that the asylum seeker should be told that there had been a decision, but be kept in the dark about the reasons, and be unable to appeal, are primarily relevant to the issue of construction, and I have already dealt with those arguments in that context. I do not think anything in the ECHR adds significantly to the claimant’s arguments, although of course it does not detract from those arguments either.
— Availability of support
I also reject the claimant’s further argument, not raised in Salem, that the loss of income support in itself acted as a kind of fetter on her right of appeal by analogy with JCWI. If the claimant had been, or was likely to become, destitute in the period 9 December 1999 to 18 April 2000 I see no reason why asylum support should not have been available to her under the Asylum Support (Interim Provisions) Regulations or (from 3 April 2000) the Asylum Support Regulations. In fact she does not appear to have sought assistance from the local authority until 6 March 2000. No reason for that is given. Although, for whatever reason, she did not apparently benefit from asylum support until August 2000, I am unable to determine on the evidence whether that was because at the time she was not destitute or likely to become so, or because there was some misunderstanding or error, or for some other reason. At first sight there seems no reason why asylum support should not have been available if she truly was facing destitution. In any event there is no evidence before this court to suggest that the system of asylum support in place from 6 December 1999, or the difference in value between income support and asylum support, was or is of a nature to render nugatory or valueless in practice the right of appeal, as was the case in JCWI. On the contrary, asylum support appears at first sight to correspond to the ‘basic provision’ envisaged by Simon Brown LJ in JCWI and continues until 14 days after the disposal of an appeal, thus addressing the issue which troubled the Court of Appeal in that case. For this further reason, any argument based on Article 3 of the ECHR is in my view also bound to fail.
— Discretion and related issues
It follows from the foregoing that I am bound to dismiss this application, so the question of the exercise of the court’s discretion does not arise. That issue has not been argued orally. I can briefly indicate, however, a preliminary view that I would not have exercised my discretion against the claimant on grounds of delay, given that permission was granted to make the application and there were delays in obtaining legal aid. The availability of an alternative remedy, via the social security appeals system, is admittedly a factor relevant to the exercise of discretion; but that factor is not in my view decisive in this case. The High Court is for many reasons a more suitable forum in which to explore the complexities of the inter-relationships between the immigration and social security systems as they apply in this case. I leave open whether I would have exercised my discretion against the claimant on the grounds that her appeal to the adjudicator failed. Whether there would or could be some grounds for limiting the relief claimed in some way to the period up to 11 January 2000 but not thereafter, on the grounds that it was really the claimant (or possibly those previously advising her), who were responsible for the delay after that date, is not a matter that has been argued, or even raised.
Finally, I am unimpressed by the defendant’s argument that the claimant is estopped by reason of the decision of the appeal tribunal which heard her appeal against the loss of income support under (I take it) the relevant provisions of the Social Security Act 1998. The case relied on, Barber v Staffordshire County Council [1996] 2 All ER 748, related to an attempt by an employee to twice sue her employers before an employment tribunal. Although it is true that there was an appeal to the appeal tribunal against the Benefits Agency, the challenge in this case is by way of judicial review against the legal effect given to the internal determination of 20 November 1999 by the Secretary of State for the Home Department. In this case it is, strictly speaking, the Crown who brings the proceedings against the defendants on the application of the citizen in the exercise of the modern equivalent of the ancient prerogative writs. I would seriously doubt whether the concept of an estoppel in private law in the sense of cause of action estoppel, or issue estoppel, or res judicata, is relevant at all in public law proceedings where the High Court is determining, in a case brought in the name of the Crown, a point of statutory construction in proceedings for judicial review. The fact that a claimant had previously unsuccessfully taken the same point before an appeal tribunal set up under the Social Security Act 1998, may affect the Court’s discretion, which is quite another matter which I have already addressed, but it does not in law amount to an estoppel. I would not therefore dismiss the proceedings on that ground. Nor would I hold against the claimant anything that may have been said by her solicitor in the argument before the social security appeal tribunal.
Those final observations do not, however, alter my conclusion that this application must be dismissed.
SIR CHRISTOPHER BELLAMY: I am grateful to both counsel for the helpful comments on the draft judgment. Mr Giffin, your second letter arrived after this version was actually finalised, and because I was not there to control it, I did not have a chance to reconsider anything in the light of your second letter to me.
So, unless there are any other observations, that is the judgment of the court in the terms of the final judgment as finally amended.
MR GIFFIN: My Lord, I am grateful. We have one application each, I think. My application on behalf of both defendants is for the usual costs order against a claimant with the benefit of Community Legal Service Funding, namely an order that the defendant's costs, with the amount of the claimant's liability postponed. I am not sure that that is controversial.
SIR CHRISTOPHER BELLAMY: Yes. I very much doubt whether it is.
MR GILL: My Lord, the only thing I can say in relation to it, is that it is always a matter for the court to decide what is just and equitable in the circumstances, and your Lordship may take the view, in view of the nature of the case that no order may be made, but I am conscious----
SIR CHRISTOPHER BELLAMY: I make the usual costs order in favour of the defendant.
MR GILL: My Lord, there is an application for permission to appeal.
SIR CHRISTOPHER BELLAMY: Yes.
MR GILL: And your Lordship recognised that this matter was funded by the Legal Services Commission, on the basis that they only considered it at senior levels in order to assess its importance. Cases of this sort keep coming up, as we discussed at the full hearing--
SIR CHRISTOPHER BELLAMY: Yes.
MR GILL: --a number of cases proceeded to the High Court and for one reason or another none of them has gone--
SIR CHRISTOPHER BELLAMY: Yes.
MR GILL: --to a substantive hearing. Your Lordship has, of course, in the judgment referred to a number of arguments which go beyond Salem on the basis of which arguably Salem could be distinguished, or if not distinguished at least reconsidered by the Court of Appeal. Even if it be said against me that Salem is binding, nevertheless, there have been cases where the Court of Appeal or even this court--
SIR CHRISTOPHER BELLAMY: Yes.
MR GILL: --has granted permission where the matter is of general importance.
SIR CHRISTOPHER BELLAMY: I think, Mr Gill, it is useful probably for me to hear Mr Giffin on the question of permission to appeal.
MR GILL: Certainly.
MR GIFFIN: The logic of your Lordship's decision that Salem is a binding authority on this court is, of course, it is binding on the Court of Appeal as well.
SIR CHRISTOPHER BELLAMY: Well, there is just a little bit of leeway way there, is there not? If it is to the extent that the Court of Appeal could not depart from its own previous decisions, they have got a certain degree of latitude that the High Court has not got, probably, have they not?
MR GIFFIN: My Lord, I accept that only to this extent: that it is open to the Court of Appeal to decide that its previous decision in Salem was per curiam, whereas I submitted to your Lordship--
SIR CHRISTOPHER BELLAMY: Yes.
MR GIFFIN: --that that was not a proper function for the first instance court.
SIR CHRISTOPHER BELLAMY: No. Yes, yes.
MR GIFFIN: So to that extent there is more latitude, but in the light of the authorities on what has to be shown for the decision to be per curiam----
SIR CHRISTOPHER BELLAMY: Very well, any way, very well, binding on the Court of Appeal, yes.
MR GIFFIN: My Lord, yes. My Lord, I accept that, in principle, it could be a proper ground for giving permission to appeal that there might be a real prospect of the case going to the House of Lords and an appeal succeeding in the House of Lords. My Lord, I accept that it is clear from your Lordship's judgment that your Lordship would probably take the view that there are other further issues worthy of ventilation.
SIR CHRISTOPHER BELLAMY: There are issues worthy of ventilation, yes.
MR GIFFIN: But, nonetheless, I would submit that your Lordship should not grant permission for two reasons: the first being that where the case only has a prospect of success if taken to the House of Lords, it really ought to be for the Court of Appeal to decide whether it should proceed to the Court of Appeal for that purpose; secondly, that this particular case is an inappropriate case for testing the matter further, in any event.
My Lord, as to the first point, what I would submit is that this is a matter which has been recently and directly considered by the Court of Appeal in Salem. It is not some ancient authority left on the stocks. There have also been other first instance decisions, Karoui and Paulo, which have reached the same conclusion without, if I may respectfully say so, the doubts that your Lordship has expressed.
SIR CHRISTOPHER BELLAMY: Yes.
MR GIFFIN:: And, my Lord, it is also material that had the House of Lords wanted to consider this point as a pure point of construction, it did have the opportunity to do so in that Salem itself, of course, reached the House, but their Lordships declined to deal with the appeal, it having become academic so far as that particular appellant was concerned on the basis that any points of construction really needed to be looked at on the basis of the particular factual context. And, my Lord, against that background we would submit that it is really inappropriate for the first instance judge--
SIR CHRISTOPHER BELLAMY: Yes.
MR GIFFIN: --to proceed on the basis of views about the prospects of the House of Lords holding that the Court of Appeal got it wrong and, my Lord, that appears to be the view Scott Baker J took at the end of Paulo. My Lord, I have brought the transcript, again on the basis that it might not be to hand, but he does indicate whether he did indicate when the application for permission was made to him on the basis that Salem merited further consideration, that it was really a matter where permission ought to be sought from the Court of Appeal.
My Lord, has to decide whether this particular case is an appropriate case, without obviously revisiting the justification or otherwise for the delay. The fact is that this has taken a very long time to come to court and it really is quite inconceivable, I think, that there are any more cases of this, ie pre-April 2000 vintage, in the sense of decisions taken before pre-April 2000. I accept that there are still significant numbers in the system who were in receipt of benefits prior to that date.
My Lord, three things have changed since the date of which the facts of this case arose. The first, and perhaps the least important, is that there are now different regulations in force with slightly different wording, so far no one has thought that the changing of wording is of great significance, nonetheless attempts have been made to argue the contrary.
SIR CHRISTOPHER BELLAMY: Is that Paulo you are referring to?
MR GIFFIN: That is Paulo, yes.
SIR CHRISTOPHER BELLAMY: Yes.
MR GIFFIN: Secondly, and perhaps more significantly, the Human Rights Act has now come into force and whatever the strength or otherwise of any arguments based upon the Convention might be, it does not seem very sensible that this case should proceed as a test case and if it fails someone should then say, 'Ah yes, but in Anufrijeva's case they could not run the Human Rights Act arguments because of the date when it arose so we need another case in which those arguments can be ventilated'. Thirdly, my Lord----
SIR CHRISTOPHER BELLAMY: Sorry, Mr Giffin, to interrupt you, we are talking about -- what cases are we talking about? Post-April cases, April 2000? Or cases that are in some way left over from pre-April 2000.
MR GIFFIN: The cases where an issue of this nature could still arise--
SIR CHRISTOPHER BELLAMY: Yes.
MR GIFFIN: --are cases where the person was an asylum seeker and was in receipt of benefits prior to 3rd April 2000, but where their claim for asylum has still not been decided.
SIR CHRISTOPHER BELLAMY: Yes.
MR GIFFIN: And there are significant numbers of such cases.
SIR CHRISTOPHER BELLAMY: Because they are somewhere in the system.
MR GIFFIN: They are somewhere in the system. So one might have a person who's claim was decided by the Secretary of State, if it is for the Secretary of State to decide it, tomorrow--
SIR CHRISTOPHER BELLAMY: Yes.
MR GIFFIN: --and there will still be a time lag between that event and the refusal of leave to enter.
SIR CHRISTOPHER BELLAMY: And they, in theory, you say, might run a human rights argument--
MR GIFFIN: Yes.
SIR CHRISTOPHER BELLAMY: --post the Act.
MR GIFFIN: Well, my Lord, certainly my learned friend in this case sought to run, and although I appreciate your Lordship indicated some scepticism and even if the Act had been in force at the material time the Convention argument would have availed, nonetheless the primary ground on which your Lordship has proceeded is that in the light of Lambert--
SIR CHRISTOPHER BELLAMY: Yes.
MR GIFFIN: --the arguments in (inaudible due to coughing) to the claimant, so that is that point.
SIR CHRISTOPHER BELLAMY: Yes.
MR GIFFIN: My Lord, the third point is that since April or May 2000, as is reported in Miss Balmforth's witness statement the practice has been that at the date when--
SIR CHRISTOPHER BELLAMY: Yes.
MR GIFFIN: --the asylum -- your Lordship has the point, I think, a notification--
SIR CHRISTOPHER BELLAMY: Yes.
MR GIFFIN: --is given at that point. My Lord, I appreciate that that does not address all the points referred to in the judgment, because it is not reasons and it does not go to the point of interpretation of the primary legislation, nonetheless, it does go to that part of your Lordship's reasoning in paragraphs 97, 100 and 101 about a decision being taken of which the effected person is in ignorance.
So, my Lord, to the extent that that is a material part of the picture that has now changed. My Lord, so for all those reasons, I submit that a rather old case of this nature, if there were to be a test case this would not be the right one. My Lord, unless I can assist further?
SIR CHRISTOPHER BELLAMY: No. That is very helpful, Mr Giffin. Yes, Mr Gill?
MR GILL: My Lord, one thing one ought not to forget is the impact on this individual herself; that is of some value.
As far as the wider public interest is concerned there are a number of points that arise. I will deal with the last three points that my learned friend made first. He says, firstly, that there are different regulations, yes, there are, but, as he also recognises, nothing much turns on that because the word is much the same. So there is going to be at some point, unless the matter is revolved in some way or another, the point is going to have to be dealt with. And if the argument in this case is much the same as the argument that would be advanced in any such case under the new regulations, then this case, public money already having been expended on it, might as well be the vehicle which goes up to the Court of Appeal to decide this point.
Secondly, so far as the Human Rights Act is concerned, in relation to that my learned friend says that a new case may run human rights arguments, but that is so, whether those human rights arguments add anything or not. It still does not meet the point that there are in this category of persons a large number of persons involved. My learned friend says that it is small, but they are significant. Many, many people after the Regulations came in in February 1996 until the time that the Regulations were changed at the start of April 2000 suffered as a result of the matters that we have been dealing with in this case.
SIR CHRISTOPHER BELLAMY: Yes.
MR GILL: The Legal Services Commission appears to have considered statistics in relation to that regard and in the grounds at paragraph 14 some information was given which has not been challenged during the course of the hearing as to the numbers and so on, and as to the average losses that those persons experienced. So although there is an attempt----
SIR CHRISTOPHER BELLAMY: What figures are you referring to, Mr Gill?
MR GILL: Well, my Lord, if I read out that paragraph:
"Whilst the individual amount in benefits lost by C... is relatively small..."
SIR CHRISTOPHER BELLAMY: Yes. Yes, I am there, paragraph 14.
MR GILL: Yes.
"... the principle as to when a claim is recorded as determined affects a substantial number... The delay can last from 1-2 months up to a year. Average losses are approximately £500 asylum decisions are made at about 6,000 a month, of which 1,500 will be on income support".
Now, from that one cannot be sure of what the numbers are involved in pre-October decisions or indeed the pre-new Regulations decision, if I can put it that way.
SIR CHRISTOPHER BELLAMY: Yes.
MR GILL: But there will have been a significant number of persons. Now if we were to succeed in this case, ultimately, at the higher court, if we were to succeed, then the Secretary of State may well be forced to consider what he is to do about compensating those persons in the past who were wrongly deprived of benefit. That is a significant number of persons.
SIR CHRISTOPHER BELLAMY: Yes.
MR GILL: And despite previous attempts to litigate on behalf of the group, as it were, a class action, as I have said, none of the cases have managed, for one reason or another, because each individual applicant seems to have got what they originally wanted for the case to be litigated and the problem still arises with the new Regulations. That deals with two of the points that my learned friend made.
The third point, the last point he made, was that since April 2000 there has been a new practice, direct education, and he candidly recognises that that does not deal with all the points of principle involved and, moreover, whilst there is a new practice and although attempts are made to follow it as best as people can, it is not always the case that delays between decision and notification are kept down to a minimum. Delays can still occur in that context and do occur in that context, sometimes quite haphazardly even with good will and so on.
As regards the earlier points my learned friend makes, so far as the Court of Appeal is concerned, the Court of Appeal is in a position to reconsider its previous decisions. The doctrine of (inaudible) is beginning to be modified to some extent, even with the constraints of per curiam doctrine, it may well be that the Court of Appeal is prepared to take the view that certain principles of law were not available in the form of decisions to them. So that, although I accept what your Lordship says, they appeared to have considered the legislative scheme, but certain principles of law in the case law may not have been drawn to their attention, so they may come to a different decision.
The other point my learned friend made was about Salem, that the House of Lords, had they wanted to, may well have dealt with the matter anyway. My Lord, in Salem the position was clearly academic, as your Lordship has noted in the judgment and moveover if I am right, and I will be corrected, I believe what happened in the House of Lords was that the House of Lords were told that a new scheme was going to be put into place and the whole of the system was going to be overhauled, as indeed it was. One of the things that influenced the House of Lords was the fact that the Government was going to look at all these things again. But even having looked at all these things again, they still have the problem. So there is a real prospect that the matter may be decided ultimately in the appellant's favour. Paulo, I do not think is going further----
MR GIFFIN: May I assist? Scott Baker J refused permission in Paulo. An application was put in on the papers to the Court of Appeal, but was then withdrawn by the appellant and, so far as my instructions go, that was not because he was given any benefit, simply for reasons we do not know of, they decided to withdraw, so that is the position.
MR GILL: For one reason or another--
SIR CHRISTOPHER BELLAMY: Yes.
MR GILL: --that case is not going ahead. This matter ought to be decided sooner rather than later, rather than waiting for some other case to come up in due course. My Lord, I therefore invite you to grant permission.
SIR CHRISTOPHER BELLAMY: In my view this is a case where permission to appeal ought to be granted. The case before me has revolved around the decision of the Court of Appeal in Salem. That decision was a split decision; Hobhouse LJ dissenting. The case then went to the House of Lords, leave to appeal having been given, but did not proceed in the House of Lords because the matter was ultimately settled.
It appears to me that there are important issues in this case which may effect not only the claimant but other asylum seekers who were receiving benefit prior to 3rd April 2000 and whose cases have not yet been decided. For the reasons given in my judgment, it seems to me that the claimant is not without ultimate prospects of success, reasonable prospects of success, and if only at the level of the House of Lords, there are certainly issues that, in my view, are worthy of consideration.
The case is funded on public interest grounds by the Legal Services Commission. That, in my judgment, is a further reason relevant to the question of permission to appeal in this case. It is, of course, for the Court of Appeal and not for me to decide whether and to what extent Salem is binding on the Court of Appeal as it is binding on me. On those grounds I give permission to appeal.
MR GILL: I am grateful. May I have a detailed assessment of the claimant's costs?
SIR CHRISTOPHER BELLAMY: (Sir Bellamy nods). Now, I have a form to fill in which says "Reasons for decision". I am going to read out what I write so that everybody knows what that is:
"Salem was a split decision. The case went to the House of Lords, but did not proceed. The issue appears to be of public importance. The claimant is not, in my view, without prospects of success, if only at the level of the House of Lords. The case is funded on public-interest grounds by the Legal Services Commission. Permission to appeal granted."
Any other applications?
MR GILL: Thank you very much, my Lord.
SIR CHRISTOPHER BELLAMY: The final version of the judgment, as we finalised it this morning, I will make available via the shorthand writers with that final correction. Thank you everybody very much indeed.
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