Yildiz v. Secretary of State for Social Security [2001] UKSSCSC CIS_6258_1999 (28 February 2001)
R(IS) 9/01
(Yildiz v. Secretary of State for Social Security [2001] EWCA Civ 309)
Mr. J. Mesher CIS/6258/1999
22.6.00
CA (Henry, Ward and Buxton LJJ)
28.2.01
Asylum seeker - break in entitlement after Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 came into force - whether transitional protection applies to fresh claim
The claimant was a Turkish national who arrived in the United Kingdom on 7 February 1994 and claimed asylum on 23 February 1994. He received income support at the urgent cases rate from
8 March 1995 as his claim for asylum had not been recorded as either finally determined or abandoned (regulation 70(3A) of the Income Support (General) Regulations 1987). Income support ceased to be paid on 12 August 1998 when he started remunerative employment. The employment ended on 4 September 1998 and he received jobseeker's allowance from 8 September 1998 until 7 March 1999. When that allowance was terminated, he claimed income support. His claim was rejected on the basis that regulation 70(3A) had been amended from 5 February 1996 to require the claim for asylum to be made "on his arrival … in the United Kingdom" and the saving provision in regulation 12(1) only applied to entitlement on the claim which was in existence on 5 February 1996. The tribunal confirmed the adjudication officer's decision and the claimant appealed to the Commissioner with leave from the chairman. The issue had arisen on the same facts in another appeal, CIS/1115/1999, and the question was decided against the claimant after an oral hearing. The Commissioner had followed CIS/3955/1997 and CIS/4609/1997 which also raised the same question but in relation to regulation 12(2).
Held, by the Commissioner, dismissing the appeal, that:
the Commissioners' decisions in CIS/1115/1999, CIS/3955/1997 and CIS/4609/1997 had been reached after full argument at oral hearings and should be followed as the conclusion on the meaning was one which could reasonably have been reached.
The Commissioner indicated that he might not have taken the same view had the question arisen afresh before him. He granted leave to appeal to the Court of Appeal.
Held, by the Court of Appeal, allowing the appeal that:
- transitional protection was not a term of art and nothing followed from the fact that a provision could be labelled as transitional (para. 9), the Court had to apply and construe the legislative language which the Secretary of State did in fact use i.e. the terms of regulation 12, in its different paragraphs, and not any supposed policy that the transitional protection should be minimal;
- unlike R v. Chief Adjudication Officer ex parte B [1999] 1 WLR 1695, where the court was driven to its conclusion by the specific words "until such time as his entitlement to that benefit is reviewed" in regulation 12(3), no such words were to be found in regulation 12(1) which addressed not the benefit in general terms but the specific case of a person "who becomes an asylum seeker under regulation 70(3A)(a) of the Income Support Regulations" i.e. a person who submitted a claim for asylum which remained undetermined on 5 February 1996. The effect of disapplying regulation 8(3)(c), was to continue the status of the applicant as an asylum seeker under the existing regulations which conferred on him the right to urgent cases payments under regulation 70. This right was not expunged simply by a period of employment;
- the fact of being entitled to benefit on 5 February 1996 was the precondition of the application of regulation 12(1) to the case (R v. Secretary of State ex parte Vijeikis, unreported 5 March 1998). Once the precondition was established, the operation of the transitional provisions was controlled by their terms and not by the precondition. The terms provided that the applicant continued to be entitled to claim because he continued to have the status of an asylum seeker for the purposes of the 1987 Regulations. The status was not lost by reason of a period of employment. It was lost after his asylum claim was finally determined;
- on the plain wording of regulation 12(1), the claimant's right to urgent cases payments under income support provisions did not disappear for all time as soon as he took employment. Those provisions continued subject to his fulfilling the other qualifying conditions until the determination of his asylum claim. If the Secretary of State had really wished to implement a policy of subjecting asylum seekers to a "life so destitute that no civilised nation can tolerate it" (per Simon Brown LJ in R v. Secretary of State ex parte JCWI [1997] 1 WLR at p. 92F), then he would have to use very clear words to that effect (para. 17).
The Commissioner's decision was set aside and a decision substituted to the effect that "between the date of claim and 23 March 2000, the claimant was an asylum seeker with an income support applicable amount of the urgent cases payment rate."
DECISION OF THE SOCIAL SECURITY COMMISSIONER
- The claimant's appeal fails. The decision of the Edmonton social security appeal tribunal dated 22 July 1999 is not erroneous in point of law and therefore stands.
- The claimant is a Turkish national. He arrived in the United Kingdom on
7 February 1994. He applied for asylum on 23 February 1994. His application has not yet been determined, although I was told at the oral hearing that he had been granted exceptional leave to remain in the UK in March 2000. He was awarded and paid income support from and including 8 March 1995. Entitlement on that award came to an end on 12 August 1998, because he became engaged in remunerative work from 10 August 1998. That work only lasted until 4 September 1998. The claimant received jobseeker's allowance ("JSA") from 8 September 1998 to
7 March 1999. On a change of address, entitlement to JSA was removed. He made a claim for income support on a date which cannot now be identified. On
25 March 1999 the adjudication officer issued the decision that the claimant was a person from abroad, whose applicable amount for income support purposes was nil. It was that decision, which had the effect that the claimant was not entitled to income support, which was under appeal to the appeal tribunal.
- The appeal was recognised to turn on one question of law. With effect from
5 February 1996 an amendment was made by regulation 8(3) of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 ("the 1996 Regulations") to the provisions of regulation 70 of the Income Support (General) Regulations 1987 ("the Income Support Regulations") on when there could be entitlement to income support under the urgent cases provisions for asylum seekers. The claimant had from the outset come within the definition of "person from abroad" in regulation 21(3) so that under paragraph 17 of Schedule 7 to the Income Support Regulations his applicable amount was nil except when regulation 70(3) applied. The claimant came within regulation 70(3) as it was before 5 February 1996, because he was an asylum seeker as defined in regulation 70(3A), having submitted a claim for asylum which had not been recorded as finally determined or abandoned. He did not come within regulation 70(3) from 5 February 1996 onwards because the definition in regulation 70(3A) had been altered by regulation 8(3)(c) of the 1996 Regulations to require that the claim for asylum was made "on his arrival ... in the United Kingdom".
- Under those provisions the claimant could not be entitled to income support on the claim in March 1999. However, the question which arose for the appeal tribunal was whether the claimant was able to benefit from the saving provision in regulation 12(1) of the 1996 Regulations:
"(1) Where, before the coming into force of these Regulations, a person who becomes an asylum seeker under regulation 4A(5)(a)(i) of the Council Tax Benefit Regulations, regulation 7A(5)(a)(i) of the Housing Benefit Regulations or regulation 70(3A)(a) of the Income Support Regulations, as the case may be, is entitled to benefit under any of those Regulations, those provisions of those Regulations as then in force shall continue to have effect [(both as regards him and as regards persons who are members of his family at the coming into force of these Regulations)] as if regulations 3(a) and (b), 7(a) and (b) or 8(2) and (3)(c), as the case may be, of these Regulations had not been made."
The words in square brackets were added with effect from 24 July 1996 by virtue of paragraph 5 of Schedule 1 to the Asylum and Immigration Act 1996.
- It may be helpful to set out here the remainder of regulation 12:
"(2) Where, before the coming into force of these Regulations, a person, in respect of whom an undertaking was given by another person or persons to be responsible for his maintenance and accommodation, claimed benefit to which he is entitled, or is receiving benefit, under the Council Tax Benefit Regulations, the Housing Benefit Regulations or the Income Support Regulations, as the case may be, those Regulations as then in force shall have effect as if regulations 3, 7 or 8, as the case may be, of these Regulations had not been made.
(3) Where, before the coming into force of these Regulations, a person is receiving attendance allowance, disability living allowance, disability working allowance, family credit, invalid care allowance or severe disablement allowance under, as the case may be, the Attendance Allowance Regulations, Disability Living Allowance Regulations, Disability Working Allowance Regulations, Family Credit Regulations, Invalid Care Allowance Regulations or Severe Disablement Allowance Regulations, those Regulations shall, until such time as his entitlement to that benefit is reviewed under section 25 or 30 of the Social Security Administration Act 1992, have effect as if regulation 2, 4, 5, 6, 9 or 11, as the case may be, of these Regulations had not been made."
- The adjudication officer submitted to the appeal tribunal that the claimant did not come within regulation 12(1) on the claim in March 1999, because that was a fresh claim and it was only entitlement under the claim running on 4 February 1996 which was protected by regulation 12(1). On behalf of the claimant it was submitted that, as the claimant was entitled to benefit under regulation 70(3A)(a) of the Income Support Regulations immediately prior to 5 February 1996, he was entitled to have his claim in March 1999 determined as if regulation 70(3A)(a) had never been amended despite the break in entitlement after 12 August 1998. The appeal tribunal decided against the claimant.
- The claimant now appeals to the Commissioner, with leave granted by the chairman of the appeal tribunal. The appeal tribunal may well not have explained its reasoning as fully as it ought to have done, but the essential question in the appeal is whether it reached the right result in law.
- The progress of this appeal was deferred pending the issue of the Commissioner's decision in appeal CIS/1115/1999. The facts of that appeal raised exactly the same question of law as in the present case. Mr. Commissioner Pacey there held an oral hearing at which the claimant was represented by Counsel and the adjudication officer was represented by a solicitor from the Office of the Solicitor to the Department of Social Security. The Commissioner decided that the claimant in CIS/1115/1999 was not able to benefit from the saving provision in regulation 12(1) of the 1996 Regulations. He was referred to all the relevant recent court decisions and also followed two earlier Commissioners' decisions, in appeals CIS/3955/1997 and CIS/4609/1997, both given by Mr. Commissioner Angus. Those decisions concerned regulation 12(2) of the 1996 Regulations, but raised the same question about the effect of the coming to an end of entitlement on the claim running on 4 February 1996 and the later making of a fresh claim. The Commissioner there decided that question against the claimants after oral hearings in which the claimants were represented by Counsel and the adjudication officer was represented by a solicitor from the Office of the Solicitor to the Department of Social Security.
- An oral hearing of the present appeal was granted at the request of the claimant's representative. The claimant was represented by Mr. Ben Jaffey of the Free Representation Unit, as he had been before the appeal tribunal. The Secretary of State (who has now taken over the functions of adjudication officers) was represented by Ms. Vicky Bergmann of the Office of the Solicitor to the Department of Social Security. I am grateful to both representatives for their assistance.
- I am faced with the situation where the point of law before me has already been specifically decided by two Commissioners. The principle which I must follow was set out by the tribunal of Commissioners in paragraph 21 of decision R(I) 12/75:
"In so far as the Commissioners are concerned, on questions of legal principle, a single Commissioner follows a decision of a tribunal of Commissioners unless there are compelling reasons why he should not, as, for instance, a decision of superior Courts affecting the legal principles involved. A single Commissioner in the interests of comity and to secure certainty and avoid confusion on questions of legal principle normally follows the decisions of other single Commissioners (see decisions R(G) 3/62 and R(I) 23/63). It is recognised however that a slavish adherence to this could lead to the perpetuation of error and he is not bound to do so."
In the two decisions referred to it was said that the Commissioners' practice was to follow earlier decisions of the Commissioner unless completely satisfied that they are erroneous, and that weight was given to whether or not the earlier decision was given after an oral hearing at which there was full argument. I take that approach to be incorporated into paragraph 21 of R(I) 12/75. The fundamental principle is as valuable today as it was in 1975 and before. Indeed, with the increase in the number of Commissioners, it may be more valuable in the avoidance of confusion and in the discouragement of attempts to shop around Commissioners in the hope of eliciting some disagreement.
- Ms. Bergmann submitted that CIS/1115/1999, CIS/3955/1997 and CIS/4609/1997 were rightly decided and should be followed. I do not think that she submitted in so many words that any of the decisions of the Court of Appeal or the High Court were binding on me. That seems to me right, in that none of the court decisions have been directly on the point before me. Mr. Jaffey submitted that I should find myself completely satisfied that the decisions were wrong. Mr. Jaffey put the case for the claimant most cogently. If I had been deciding the point afresh I might well have concluded that regulation 12(1) of the 1996 Regulations covered the claimant's case. But I am not completely satisfied that the earlier Commissioners' decision were erroneous and therefore consider myself bound to follow them. The result is that the appeal tribunal applied the correct principle of law and that its decision should be upheld.
- In the circumstances I do not think that I ought to go into all the details of the submissions made, but I attempt to give a brief explanation of my conclusion.
- Mr. Jaffey's general submission was not that there was some authority or legislative provision which had not been brought to the attention of Mr. Commissioner Pacey or Mr. Commissioner Angus, but that their decisions misconstrued the authorities and the legislation. However, he did also place some weight on the statements about the purposes of the 1996 Regulations made by the Secretary of State in referring the draft regulations to the Social Security Advisory Committee ("SSAC") and in responding to the committee's recommendations. Those statements were apparently not specifically relied on by the claimants in CIS/1115/1999, CIS/3955/1997 and CIS/4609/1997.
- The draft regulations contained a saving provision with a similar format to the eventual regulation 12(1) and (3), although in the case of income support the protection was expressed to be provided for those receiving benefit before 12 October 1995. That time limitation was removed in the eventual regulations, as it had served its purpose of discouraging a rush of claims before the regulations came into effect. The Secretary of State's explanatory memorandum to the SSAC in October 1995 (in Cm 3062) said this under the heading "Transitional Arrangements":
"19. The Government has decided that existing claimants will have their entitlement to benefit protected only until the next relevant decision on their case. Those who receive a final negative determination on their asylum claim will lose entitlement at that point, as is the case at present. However, existing claimants who receive a negative decision (other than a final decision) will lose their entitlement only when the new regulations come into effect. For example, an asylum applicant whose claim for asylum is rejected by the Home Office in November will lose entitlement when the amended regulations are expected to come into force on 8 January. The Government sees no justification for continuing to pay benefits to people who are considered by the immigration authorities not to be refugees."
20. The treatment of new claimants will depend on whether they fall into the in-country applicant or port applicant category. In-country applicants who claim benefit from 12 October, and are not nationals of a country notified by the Home Secretary as having undergone a significant upheaval, will lose entitlement when the new regulations come into force. The entitlement of port applicants and in-country applicants from upheaval countries will be affected by the next decision on their asylum claim. If that decision is made prior to the regulations coming into force, entitlement will cease when the regulations take effect. If the decision is made after the regulations come into force, entitlement will cease at the point when the decision is made."
- The SSAC's main concern on the transitional arrangements, if its primary recommendation that the proposals on asylum seekers should not proceed at all was rejected, was about the absence of protection for those who claimed benefit after
11 October 1995. It suggested "full transitional protection" (paragraph 65 of its recommendations) for people who were in receipt of benefit on the day before the regulations came into force. The Secretary of State's response, having set out the experience of claims, was as follows:
"29. The Government believes that the inclusion of the original transitional arrangements in the October announcement has therefore served its purpose. The Government has therefore decided to amend substantially the effect of the regulations on asylum seekers who are in receipt of benefits when the regulations come into force. The effect will be that all asylum seekers who are in receipt of income support, housing benefit or council tax benefit when the new regulations take effect will retain entitlement to these benefits up to the point of the next decision on their asylum claim. Therefore, in-country applicants who claimed benefit after October will retain entitlement until an initial negative decision on their case is made by the Home Office, while existing claimants who are awaiting an outcome of an appeal will retain entitlement until the decision on the appeal goes against them.
30. These revised provisions will give those refused refugee status time to make decisions on their future, and will ease the circumstances of those whose journey to the UK and subsequent claim for asylum may have been based on ignorance of the new rules."
- Mr. Jaffey submitted that the statements by the Secretary of State showed that the intention was that anyone who was entitled to income support immediately prior to 5 February 1996 fell into the category of "existing claimant" and that the only limit on the time for which the protection of having entitlement determined on the old regulations was to continue was set by when the next decision was made on the asylum claim. He also stressed that the claimant in the present case came to the UK at a time well before the test of claiming asylum on arrival was thought of and so fell into the category described in paragraph 30 of the Secretary of State's response. Those circumstances applied to him just as much on his income support claim in March 1999 as on 5 February 1996. Ms. Bergmann drew attention to the phrase "retain entitlement" and submitted that that showed an intention only to provide protection while the entitlement existing on 4 February 1996 was not interrupted for some reason independent of the asylum issue. She also submitted that paragraph 30 of the Secretary of State's response did not specify what protection was to be given to the category of asylum seekers described: the claimant here had had his circumstances eased by the continuing of his entitlement to income support down to 12 August 1998 and had been given time to make decisions about his future.
- I think that the truth is that the specific problem before me was not in mind when the statements cited above were made. The use of the phrase "retain entitlement" does not to my mind require the result suggested by Ms. Bergmann. But nor does the emphasis on the effect of a decision on the asylum claim in bringing an end to protection mean that it was intended that protection should be retained although entitlement on the claim which was running on 4 February 1996 had come to an end. That circumstance simply was not contemplated and the Secretary of State's statements do not in my judgment provide any real indication of the legislative purpose on the specific problem before me. Therefore, the absence of discussion of those statements by Mr. Commissioner Pacey and Mr. Commissioner Angus does not provide a basis for my declining to follow their decisions.
- That brings me back to the reasoning expressed in those decisions. I have given careful consideration to Mr. Jaffey's submissions. I am not sure that I would take the same view as Mr. Commissioner Pacey about the essential nature of transitional protection (as, for instance, in paragraph 11 of CIS/1115/1999, where I think he gives a wider effect than is justified to what was said by Mr. Commissioner Rowland in CIS/16992/1996 et al, and paragraph 17). It seems to me that it all depends on how the transitional or saving provision is expressed, as is shown in Professor Ogus's instructive article in 6 Journal of Social Security Law 111 (1999). I also have doubts about how far what was said in the Court of Appeal in R v. Chief Adjudication Officer, ex parte B (9 December 1998) can be applied to regulation 12(1) of the 1996 in addition to regulation 12(3) (see paragraphs 24 to 26 of CIS/1115/1999). However, even if I elevated those doubts to settled views, that would only affect some of the support for the conclusion reached by Mr. Commissioners Pacey and Angus. There remains the central question of the interpretation of the words of regulation 12(1) in their context in the 1996 Regulations and in the income support legislation as a whole. In my view those words are ambiguous. The Commissioners' conclusion on that question, after full argument at oral hearings, is one which could reasonably have been reached.
- My doubts about the reasoning in Mr. Commissioner Pacey's and Angus's decisions leave me well short of being completely satisfied that the decisions are erroneous. Accordingly, I follow and apply those decisions. The result is that the claimant's appeal to the Commissioner must be disallowed. Unless and until one of the cases raising the question before me reaches the Court of Appeal, it seems to me that the question must be regarded as having been conclusively decided at the level of the Commissioners.
Date: 22 June 2000 (signed) Mr. J. Mesher
Commissioner
The claimant appealed to the Court of Appeal. The decision of the Court of Appeal follows.
DECISION OF THE COURT OF APPEAL
Mr. N. Pleming QC & Mr. B. Jaffey (instructed by Leigh Day & Co) for the Appellant.
Miss N. Lieven (instructed by Solicitor to the Department of Social Security) for the Respondent.
Judgment (reserved)
LORD JUSTICE BUXTON:
- This appeal concerns entitlement to income support. That benefit is dealt with in the relevant legislation in the same terms as council tax benefit and housing benefit. For ease of reference the legislation is set out hereafter and discussed solely in terms of income support, but the general conclusions of this judgment apply equally to the other two benefits mentioned.
- Mr. Yildiz is a Turkish Kurd, who arrived in the United Kingdom on 7 February 1994, and claimed asylum on 23 February 1994. He and his family were effectively destitute. By regulation 70 of the Income Support (General) Regulations 1987, as amended by the Income Support (General) Amendment No. 3 Regulations 1993, he was entitled to an "urgent case" payment of income support, albeit at a lower level of payment than would have been the case if he had been a regular claimant. He was so entitled because he fulfilled the regulations' definition of "asylum seeker", as a person who had submitted a claim which the Secretary of State was bound under the Convention to determine, and which had not yet been determined.
- As is well known, in 1996 that position was altered by the Social Security (Persons From Abroad) Miscellanenous Amendments Regulations 1996. By regulation 8(3)(c) of the 1996 Regulations, the category of "asylum seeker" entitled to benefits was limited to those who had made a claim for asylum on arrival in the United Kingdom. The Social Security Advisory Committee, acting under section 174(1) of the Social Security Administration Act 1992, had expressed concern about those arrangements when they were proposed, to the extent that they advised that the 1996 amending regulations should not be brought into force. The Secretary of State did not accept that advice, but in the reply that he was obliged by section 174(2) of the 1992 Act to make to the Committee's report he said that the regulations would be substantially expanded to protect the position of persons (such as Mr. Yildiz) who were already in the United Kingdom and in receipt of benefit at the date of commencement of the new regime, but who would otherwise thereafter fall outside the benefit regime because they had not claimed asylum on arrival. The Secretary of State said (Cm 3062, para. 29) that the effect of the new arrangements would be that:
"... all asylum seekers who are in receipt of income support ... when the new regulations take effect will retain entitlement to these benefits up to the point of the next decision made on their asylum claim."
- Those "transitional" provisions were expressed in regulation 12 of the 1996 Regulations. The proper construction of that regulation is the issue in this appeal, and it is necessary to set out a considerable part of it:
"12(1) Where before the coming into force of these Regulations [i.e. 5 February 1996] a person who becomes an asylum seeker under … the Income Support Regulations … is entitled to benefit under … those Regulations those provisions of those Regulations as then in force shall continue to have effect as if regulation … 8(3)(c) … of these Regulations had not been made.
12(2) [makes similar provision in respect of persons in respect of whom undertakings of support had been given by other persons].
12(3) Where before the coming into force of these Regulations a person is receiving attendance allowance [or other identified medically-related benefits] … the Attendance Allowance Regulations [and the regulations relating to the other benefits dealt with in this sub-regulations] shall, until such time as his entitlement to that benefit is reviewed under section 25 or 30 of the Social Security Administration Act 1992 have effect as if [the provisions in the 1996 Regulations equivalent to regulation 8(3)(c)] had not been made."
- Mr. Yildiz continued to be unemployed, and to receive income support, until 10 August 1998. He then secured remunerative work, and thereby ceased to be entitled to income support. That job however lasted only until 4 September 1998. He then received jobseekers allowance from 8 September 1998 until 7 March 1999. On the termination of that allowance he again claimed income support. That claim was rejected on the ground that his claim was a fresh claim, and the provisions of regulation 12(1) only applied to an actual claim that was in existence on 5 February 1996. By taking employment, albeit for a short time, Mr. Yildiz had brought his 5 February 1996 claim to an end, and with it any further entitlement to income support.
- That argument was upheld by the social security appeal tribunal and, on appeal from them, by Mr. Commissioner Mesher. It seems clear from his judgment that Mr. Mesher had some doubts about that conclusion, but he felt constrained to follow a previous decision in the same sense of another Commissioner. Mr. Yildiz now appeals to this court. So far as Mr. Yildiz himself is concerned, his asylum claim was finally determined on 23 March 2000, over six years after his application was made, with Mr. Yildiz and his family being granted exceptional leave to remain until 2004. That determination in any event brought to an end any rights that he had under regulation 70, since those rights are contingent upon his being an asylum seeker. He however still seeks the benefit unpaid between the rejection of his claim in 1999 and the decision on his asylum claim. We were also told that the appeal is of more general importance, to a considerable number of cases in which decisions in the same terms as that in Mr. Yildiz's case have been taken.
- The appeal involves a short point on the construction of regulation 12(1). Before turning to that, however, it will be convenient to set out a number of issues that are already decided. First, this court decided in R v. Secretary of State ex p Vijeikis (unreported, 5 March 1998) that a precondition to the application of regulation 12(1) was that the claimant should have been "entitled" to income support on the date of commencement of the regulations, 5 February 1996. Mr. Vijeikis had not been so entitled, because he had been in paid employment on that date. The court adopted the observation at first instance of Dyson J:
"It would be inept to speak of someone who once was, but no longer is, entitled to benefit as a person as regards whom the provisions 'continue' to have effect. For something to continue it must exist. It cannot be something that once existed but no longer exists"
- Second, this court held in R v. Chief Adjudication Officer ex p B [1999] 1 WLR 1695 that entitlement to disability living allowance, a benefit addressed in regulation 12(3), terminated upon the review mentioned in that sub-regulation, and could not be revived.
- In her very clear argument on behalf of the Secretary of State Miss Lieven principally relied on considerations affecting regulation 12 as a whole that, she said, supported the decision of Mr. Commissioner Mesher. First, she said that there was no parallel anywhere in social security law for a "transitional" provision that operated in the way claimed by the appellant, of restoring a transitionally protected benefit once it had been lost. Ex p B was an example of such an approach having been rejected. We viewed that argument with some caution. "Transitional protection" is not a term of art, and nothing follows of necessity from the fact that a provision can be labelled as transitional. That is in our view demonstrated by the authoritative article of Professor Anthony Ogus, (1999) 6 JSSL 111, which was shown to us by Mr. Pleming QC. To the extent, if at all, that anything was said obiter in the judgments in Ex p B that gives a more technical meaning to the concept of a transitional provision, I am not able for the reasons already stated to adopt that approach.
- Second, and more particularly, Miss Lieven argued that continuation of Mr. Yildiz's right to benefit would be inconsistent with the purpose and general structure of regulation 12. She took us to paragraph 106 of the decision of Mr. Commissioner Jacobs in application CIS/1077/1999, where the learned Commissioner reviewed the various decisions of the courts on the various sub-paragraphs of regulation 12, and continued:
"On my reading of regulation 12, there is a theme that clearly runs through all three paragraphs. Put crudely, it is that protection is given to preserve rights that existed on 4 February 1996, but that protection is brought to an end at the first decent opportunity. That means at the end of the current award of benefits of last resort and at the first review, if earlier, for the other benefits."
- Miss Lieven said that the Secretary of State adopted the analysis of Commissioner Jacobs, even if not the exact language in which it was expressed. Her submission was that the theme throughout regulation 12 was that protection came to an end when the specific entitlement that existed on 5 February 1996 comes to an end. That was to be seen in the context that the 1996 Regulations as a whole were indeed intended to be, as this court had regarded them in R v. Secretary of State ex p JCWI [1997] 1 WLR 275, Draconian; and it was therefore to be expected that any transitional protection from the effect of the regulations would be minimal.
- Support for this thesis was sought from the decision of this court in Ex p B. The first opportunity for removal of disability living allowance that in that case was being paid on 5 February 1996 came with the review that was required at the end of the two-year period of initial grant. That review, irrespective of its outcome, was held, by the terms of regulation 12(3), to bring entitlement to disability living allowance to an end. It was argued that, by the same token, a break in entitlement to income support, such as arose in Mr. Yildiz's case, should by the operation of regulation 12(1) terminate any such entitlement for good. And it was said to be absurd that (as Schiemann LJ pointed out in Ex p B at p 1708b was the effect of the decision in that case) a medical review that might in the particular case have confirmed or reinforced the need for disability allowance should nonetheless terminate entitlement for good; but an interruption that did indeed remove the basis of entitlement, as in the case of the taking of work by a person in receipt of income support, should not have that same effect.
- These submissions would have force if it were open to the court to apply the supposed policy direct to the facts of the case, without the intervention of the statutory words in which the policy was sought to be expressed. However, when making the regulations the Secretary of State did not express the transitional provisions in the terms adopted by Commissioner Jacobs, nor in the recension of those terms offered by him in this appeal. Nor, one has to say, would such an expression of policy have been easy to reconcile with what the Secretary of State said to Parliament in his response to the report of the Advisory Committee: see paragraph 3 above. But in any event what we have to apply and construe is the legislative language that the Secretary of State did in fact use: the terms of regulation 12, in its different paragraphs.
- In Ex p B the court found itself driven to its conclusion by the specific words "until such time as his entitlement to that benefit is reviewed" in regulation 12(3). No such words are to be found in regulation 12(1). The regulation addresses, not the benefit in general terms, but the specific case of a person "who becomes an asylum seeker under regulation 70(3A)(a) of the Income Support Regulations" that is, who had submitted a claim for asylum which remained undetermined on 5 February 1996. In the case of such a person, if on that date he was entitled to benefit, the Income Support Regulations continue to have effect "as if regulation ... 8(3)(c) ... of the [1996] Regulations had not been made." Regulation 8(3)(c) is, as we have seen, the provision that amended the definition of "asylum seeker" in the Income Support Regulations to confine it to those who submitted an asylum claim on arrival. The effect of disapplying that provision, as regulation 12(1) does, is to continue the status of the applicant as an asylum seeker under the existing regulations: which status confers on him the right to urgent case payments under regulation 70 of the Income Support (General) Regulations 1987. That right is not expunged simply by a period of employment.
- Under the terms of regulation 12(1), the fact that Mr. Yildiz was entitled to benefit on 5 February 1996 is the pre-condition to the application to his case of the transitional provisions: see the decision in Vijeikis, described in paragraph 7 above. But once that pre-condition is established, the operation of the transitional provisions is controlled by their terms, and not by the pre-condition. Their terms, as we have seen, provide that an applicant such as Mr. Yildiz continues to be entitled to claim because he continues to have the status of an asylum seeker for the purposes of the 1987 Regulations. He does not lose that status by reason of a period of employment. He only loses it, as regulation 70(3A)(b) of the Income Support Regulations says, when his asylum claim is finally determined.
- That analysis is entirely consistent with the observation of Dyson J in Vijeikis that was adopted by this court: see paragraph 7 above. The question was, as Dyson J said, whether the provisions continue to have effect. Mr. Yildiz qualified under the Vijeikis test as someone entitled to benefit under the regulations on 5 February 1996 and it was those regulations, in their original form, that indeed continued to have effect in respect of him.
- On the plain wording of regulation 12(1), therefore, Mr. Yildiz's right to urgent case payments under the income support provisions did not disappear for all time as soon as he took employment. Those provisions continued, subject to his fulfilling the other qualifying conditions, until the determination of his asylum claim. If the Secretary of State really wished to implement the policy suggested on his behalf in this case, and subject Mr. Yildiz and other asylum seekers in his position to what was described by Simon Brown LJ in the JCWI case, [1997] 1 WLR at p. 292F, as a life so destitute that no civilised nation can tolerate it, then he would have to use very clear words to that effect. In fact, he has used words that on their clear meaning avoid that unhappy outcome.
- There is no answer to the arguments advanced by the appellant, and the appeal must succeed.
LORD JUSTICE WARD:
- I have had the advantage of reading in draft the judgment of Lord Justice Buxton and I agree with it. It is only because we are differing from the views of some of the Commissioners and because the outcome is of particular importance to a number of asylum seekers that I venture to express as shortly as I can my reasons for allowing this appeal.
- The literal and grammatical meaning of regulation 12(1) is as plain as plain can be as far as I am concerned. It sets out a qualifying precondition introduced by the clause "Where, before the coming into force of these Regulations, a person who becomes an asylum seeker under ... the Income Support Regulations ... is entitled to a benefit under ... those Regulations ...". Whether a person is so entitled may present difficulties, as Judge LJ found in R. v. Secretary of State for Social Security Ex Parte Vijeikis (Court of Appeal, Unreported, 5th March 1998):
"Although the impact of these regulations on these particular individuals will plainly be severe - indeed particularly in the case of Vijeikis very harsh, because the effect of the decision is to penalise him and his family for trying to find work and avoid, as is now the current phrase, "dependency" - the proper interpretation of these regulations does not, in my judgment, permit a more generous construction of them than would otherwise be appropriate when their meaning is clear."
- Those difficulties do not arise in this case because it is common ground that immediately before the coming into force of these regulations on 5th February 1996 Mr. Yildiz was recognised to be entitled to benefit because he was in fact receiving it. So the precondition is satisfied.
- The crucial question for determination in this appeal is, therefore, what follows from his being a qualifying person. The consequences, in the words of regulation 12(1) are:
"... those provisions of those Regulations as then in force shall continue to have effect as if regulation ... 8(3)(c) ... of these Regulations had not been made."
- "Those provisions of those Regulations as then in force" refer back by virtue of the interpretation provision in regulation 1(2) of the Miscellaneous Amendments Regulations 1996 to the Income Support (General) Regulations 1987. Regulation 8(3)(c) of the 1996 Regulations changed the rules and limited the entitlement to income support to those who had made a claim for asylum on arrival in the United Kingdom. So the crucial question becomes: what is it that shall continue to have effect as if the rules had not been so changed? The answer is plain. It is those provisions of the 1987 General Regulations as were then in force. "Then in force" means in force immediately before the coming into force of the 1996 Regulations i.e. those regulations as were in force on 4 February 1996. It is common ground that as at 4 February 1996 an asylum seeker was entitled to income support even though he had not claimed asylum on his arrival. It is not challenged by the Secretary of State that the effect of the 1987 General Regulations which continue to have effect, permit such an asylum seeker to claim and to receive benefit, to lose it if and when and for the duration of any employment he may take up but to re-apply and again to become entitled to income support after the determination of that employment. The plain ordinary meaning of regulation 12(1) is once entitled to benefit under the 1987 Regulations then always so entitled.
- Since Mr. Yildiz was able to move in, out and back into entitlement to benefit under the 1987 General Regulations, he continued to enjoy in full the rights conferred upon him by those 1987 General Regulations.
- Miss Lieven submits that the court should give the regulation a purposive construction. She submits, and as always attractively submits, that the regulation is intended only to give minimal protection for so long as the entitlement to benefit continues and that when entitlement has ceased as it would cease on taking up employment, then the regulations cease to exist and do not come back to life. That flies in the face of the language. The regulations do not cease to exist. On the contrary they continue to have effect. The regulations do not state, as they easily could, that the qualifying asylum seeker loses his entitlement to benefit if at the time of the coming into force of the regulations or at any time thereafter he is in employment or takes up employment.
- She relies on the observation of Dyson J. in Vijeikis that:
"... the purpose of the 1996 Regulations is plain and obvious. It is, inter alia," (I emphasise those two words) "to curtail the rights to benefit of asylum seekers."
- Of course that is the purpose of the changes being made by the 1996 Regulations but those changes do not give any sufficient clue to the purpose of the transitional provisions. Dyson J recognises there is more than one purpose to the regulations as a whole. Miss Lieven disavows Mr. Pleming QC's submission that the best clue to the purpose of the transitional provisions is to be found in the Secretary of State's response to the report of the Social Security Advisory Committee in Cm. 3026, paragraph 29. That recites that:
"The Government has therefore decided to amend substantially the effect of the regulations on asylum seekers who are in receipt of benefits when the regulations come into force. The effect will be that all asylum seekers who are in receipt of income support ... when the new regulations take effect will retain entitlement to those benefits up to the point of the next decision made on their asylum claim."
- For my part I cannot see why that does not accurately define the government's purpose in the enacting of regulation 12(1). Its literal meaning gives plain effect to that purpose.
- Miss Lieven also relies on the opinion of Mr. Commissioner Jacobs in Commissioner's cases Nos: CIS/1077/1999 and CIS/6608/1999 where he says in paragraph 106:
"On my reading of regulation 12 there is a theme that clearly runs through all three paragraphs. Put crudely, that is that protection is given to preserve rights that existed on 4 February 1996, but that protection is brought to an end at the first decent opportunity."
- That leaves unanswered what the first decent opportunity is. I confess to a little surprise that the Secretary of State should be contending in this case that the decent opportunity at which to terminate entitlement is not that provided for in regulation 70(3A)(b) of the Income Support Regulations namely when the asylum claim is finally determined. The decent thing for the Secretary of State to do is that which he has done on my construction of the regulations, that is to leave the qualifying asylum seekers in the position they were in without any change to their position. Their entitlement continues until the Secretary for State for the Home Department decides the asylum claim. It borders on indecency to leave these claims undetermined for years and years and if the purse of the Department of Social Security is to be protected then the Home Secretary should make more effective arrangements for the quicker disposal of asylum claims.
- I have no hesitation in allowing the appeal.
LORD JUSTICE HENRY:
- For the reasons set out above, I also agree that this appeal should be allowed.
Order: Appeal allowed with costs; permission to appeal to House of Lords refused. (Order does not form part of approved judgment)
