- The decision of the Social Security appeal tribunal dated 29 April 1999 is erroneous in law. I set that decision aside and, as empowered by section 14(8)(a)(ii) of the Social Security Act 1998, I give my own decision which is:-
The claimant applied for political asylum on her arrival at Heathrow Airport on 5 May 1998 and her entitlement to Income Support Urgent Cases Payments for the period from 11 June 1998 to 3 March 1999 is to be assessed on that basis.
- The claimant appeals, with the leave of a Social Security Commissioner, against the tribunal's confirmation of an adjudication officer's decision that the claimant is not entitled to Income Support from 11 June 1998 because she is a person from abroad who would not qualify for an Urgent Cases Payment.
- The claimant is a national of the Cameroon. She arrived on a flight from France at Heathrow Airport on Friday 5 June 1998. On 9 June 1998 an Immigration Officer at the Immigration Office, Lunar House, Croydon issued her with a notification of (further) temporary admission to the United Kingdom subject to restrictions. On 11 June 1998 she completed an application for Income Support. On 22 July 1998 an adjudication officer, having considered the information supplied by the claimant and information obtained from the Home Office, decided that the claimant was a person from abroad who was not entitled to Urgent Cases Payments because she was an "in-country " asylum seeker. The claimant appealed that decision to an appeal tribunal.
- There are variations in the history of the claimant's arrival in the United Kingdom and subsequent application for political asylum as that history is recorded at various points in the appeal papers. It is not disputed that the claimant did not apply for asylum when she was clearing Immigration Control at the Airport. However, the history recorded by the tribunal is in the following extract from its findings in fact (the numbering is mine):-
" 4. [The claimant] told the Tribunal she arrived in France on 22 March 1998. She had intended to travel to France with her husband but he had been arrested at the airport in Cameroon.
5. The French Authorities gave her leave to remain in France for 1 month. Her plane ticket was valid for 2 weeks and she had intended to return to Cameroon but after receiving news from home decided not to return. Her stay in France was extended by 17 days. She decided she wanted to be in a country that was neutral and applied for a visa to enter the United Kingdom. At the British Consulate in Paris she said she wanted to go to London for a meeting regarding the imprisonment of a journalist Cameroon. The translator telephoned London to establish whether the meeting was to take place and on being satisfied it was granted a 6 months visa to visit the United Kingdom. The terms of the visa was not seen by the Tribunal as [the claimant's] passport was at the Home Office.
6. [The claimant] admitted she obtained the above mentioned visa on false pretences as she intended to stay in England. She flew to London by British Airways on 5 May 1998 and arrived at Heathrow at about 22.30.
7. On arrival she went into the queue for EEC Citizens at Passport Control and had to be told to go into the non-EEC queue. Her passport was examined and she was asked how long she intended to stay in the United Kingdom. She replied she may stay 8 days. She was also asked if she knew people in London and replied no. She was asked if she had children and replied her child was in Cameroon with her husband. She did not mention he was under arrest there . Her passport was then stamped. She proceeded through Immigration Control to the room where the baggage carousel was and collected her bag. At the carousel she asked a cleaner (a European) how to get to the Immigration Office and was given directions. She went to the Immigration Office and explained she was claiming asylum. She was asked 'Why did you not do this when you were crossing the line where you show your passport?' [the claimant] said she did not do this as she thought the people at the desk checking passports were police officers. They were not in uniform. At the Immigration Office she was told she should have claimed asylum where her passport was checked. She was told as she had crossed the line she had to go to Lunar House and "Lunar House, Croydon" was written on a piece of paper plus the telephone number of the Refugee Legal Centre. Lunar House was not open until Monday 6 June 1998.
8. [The claimant] said she spent the night at the Airport and the next afternoon came across a Belgian who directed her to the French [hostel?] in Leicester Square. She was taken there and spent the night at the [hostel].
9. This history differed in several respects from the statement by [the claimant] on 16 June 1998 [to an officer of the Benefits Agency], particularly as to the period of time she spent in France and as to the Airport she arrived at in the United Kingdom. [The claimant] said this was because of a not very good Interpreter at the Benefit Agency.
10. However, the Tribunal did not come to any conclusion as to the veracity of her history as it considered that the only question before it was whether or not she had claimed asylum 'on entry' or whether it was claimed on 8 June 1998 when she visited Lunar House in Croydon for the first time.
11. The Tribunal came to the conclusion that [the claimant] entered the United Kingdom when going through Passport Control. Not only did she not claim asylum at this point but she gave deliberately untrue answers to the questions put to her by an Immigration Officer.
12. This conclusion was reached after consulting [the claimant's representative's] arguments plus the Commissioners' decisions set out in the submission already referred to above. Any subsequent claim for example at an Immigration office at the Airport was not 'an application made on entry'.
13. For those reasons the appeal was refused.".
The submission referred to in that extract from the tribunal's reasons for decision is the written submission of 20 January 1999 for the claimant.
- The question raised for the adjudication officer by the claimant's application for Income Support and, on appeal for the tribunal, is whether or not the claimant is an asylum seeker as defined by paragraph (3A) of regulation 70 of the Income Support (General) Regulations 1987 as in force at the date of claim. It is common ground between the claimant's representatives and the Secretary of State (to whom the adjudication officer's functions have been transferred by section 1 of the Social Security Act 1998) that the claimant is a person from abroad as defined in paragraph (3) of regulation 21 of the 1987 Regulations and is, therefore, by virtue of paragraph (1) of that regulation as read with Schedule 7 to the Regulations, a person whose Income Support applicable amount is nil with the effect that she is not entitled to Income Support. However, if she is an asylum seeker as defined she is entitled to an Urgent Case Payment as calculated in accordance with Part VI of the Regulations.
- Paragraph (3A) of regulation 70, so far as relevant to this appeal, is in the following terms:-
"For the purposes of this paragraph, a person –
(a) is an asylum seeker when he submits on his arrival (other than on his re-entry) in the United Kingdom from a country outside the Common Travel Area a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or required to leave, the United Kingdom and that claim is recorded by the Secretary of State as having been made; ….".
Paragraph (3B) defines the Convention as being the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the protocol to that Convention. The same paragraph defines the Common Travel Area as being the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively.
- The case put to the tribunal for the claimant was that although the claimant's application for asylum was dealt with at Lunar House in Croydon three days after she had passed through Immigration Control at Heathrow Airport she should nevertheless be treated as an asylum seeker within the meaning of regulation 70(3A) of the Income Support (General) Regulations because although she had not applied for asylum as she passed through Immigration Control she had intimated her requirement for asylum before she left the Airport. She had, therefore, it was argued in her solicitor's written submission to the tribunal applied for asylum "on arrival" in the United Kingdom and came within the paragraph (3A) definition of an asylum seeker. The submission referred to conflicting Commissioners' decisions on the interpretation of "on arrival". In CIS/143/97 Commissioner Rowland said that "on arrival" meant "while clearing Immigration Control at the port of entry". In CIS/3231/1997 Commissioner Sanders accepted that in the case of a person arriving in the country in the normal way the test as to whether his claim for asylum was made "on arrival" was whether or not it was made at Immigration Control or, where there had been some language or other difficulty at Immigration Control, at the first opportunity thereafter. On the other hand in CIS/2719/1997 and CIS/1137/1997 I had decided that a claim for asylum is made "on arrival" if it is made before the claimant leaves the port of arrival even if it is made after he has passed through Immigration Control. In CIS/4117/1997 Commissioner Rowland had decided, after hearing argument which he had not heard before deciding CIS/143/97, that the use of the non-technical term "on arrival" indicated that Parliament had intended that there would be some flexibility as to when a claim for asylum could be regarded as having been made.
- The grounds for appealing the tribunal's decision to a Commissioner put forward for the claimant are that the tribunal had misdirected itself in law in concluding that the only question before it was whether or not the claimant had applied for asylum "on entry" or whether it was claimed on 8 June 1998 at Lunar House for the first time and in further concluding that the claimant did not come within the regulation 70(3A) definition of asylum seeker because she did not claim asylum as she passed through Immigration Control.
- I heard this appeal on 24 October 2001. The claimant did not attend but was represented by Mr D. Seddon of Counsel instructed by Messrs. Pierce Glynn, Solicitors, London. The Secretary of State was represented by Mr J. Chang of the Office of the Solicitor to the Secretary of State for Work and Pensions. At the same time I heard the appeal by another claimant which is on file CIS/2702/2000 which raised similar legal issues. Mr R. Khubber of Counsel, instructed by the Free Representation Unit, appeared for the claimant in that appeal and Mr Chang appeared for the Secretary of State. My decision has been considerably delayed because Mr Khubber raised points of law on human rights which at the time were new and could not be fully argued and of which Mr Chang had had no notice. As those points were likely to have a bearing on both appeals I directed post-hearing written submissions with a view to a further hearing if the parties required it. In the event the submissions were completed on 18 April 2002, the parties not requiring further oral hearing. Mr Chang raised at the hearing a question as to what office the claimant in this appeal had visited at Heathrow to apply for asylum after she had passed through Immigration Control. I directed that the claimant's solicitors should investigate that question and they supplied the results of their inquiries in May of this year. There has been a further delay in making a decision because I had expected that in July I would hear appeals by two other asylum seekers in which it was possible that the arguments for the claimant would add to those which I had heard in this appeal and in the appeal on file CIS/2702/2000. However, it now transpires that those two appeals cannot be heard until later this year. Mr Seddon said that as his client's husband had been awarded Income Support in respect of them both with effect from 3 March 1999 the period in dispute was limited to 11 June 1998 (the date of claim) to 3 March 1999.
- As I have decided that this particular case turns on the question of which of the various Commissioners' decisions available to it the tribunal should have followed I can, without any disrespect to Mr Seddon's arguments, dispense with a rehearsal of his submissions insofar as they went beyond the question of whether or not "on arrival" should, by reference to those Commissioners' decisions, be interpreted as meaning before clearing Immigration Control rather than before leaving the port of arrival.
- Mr Seddon argued that the tribunal had misdirected itself as to the proper interpretation of "on arrival" by focusing on the technicality of "entry" for the purposes of the Immigration Act 1971. He argued that the proper test is to be found in CIS/2719/1997 which is that the application for asylum has to be made in the port of arrival. In this case that was where the claimant made her application. The alternative was to follow those Commissioners who say that the restriction on applications for asylum which will bring the claimant within the regulation 70(3A) definition do not relate solely to the point of entry. There was flexibility. The tribunal had erred in not coming to any conclusion as to the actual circumstances of the claimant's application for asylum in this case. Insofar as the tribunal have decided that the claimant did not, on her own evidence, make the claim in the port of arrival after she had gone through Immigration Control its decision is contrary to the evidence.
- Mr Seddon submitted that "on arrival" as used in the Income Support Regulations was not intended to have any reference to the technicalities of Immigration Control. The framework of that control was that by virtue of section 3 of the Immigration Act 1971 anyone who did not have British nationality wishing to enter the United Kingdom from outside the Common Travel Area had to obtain leave to enter. Subsection (1) of section 4 conferred on Immigration Officers the power to grant or refuse leave to enter. Subsection (2), read with Schedule 2, provided for the appointment and powers of Immigration Officers, the examination of persons arriving in or leaving the United Kingdom, the exercise by Immigration Officers of their powers and the detention of persons pending examination or removal from the country. Technically the important matters here were entry and examination, not arrival. Section 11 of the Act deemed the person seeking leave to enter not to have entered until leave to enter had been given. "Entry" was therefore a technical term and there could be no entry until the claimant was out of the controlled zone in the port of arrival. A person who had not otherwise entered was deemed not to have done so while in detention or on temporary admission while liable to detention. The key provision was paragraph 2 of Schedule 2. That empowered the Immigration Officer to examine any persons who "have arrived". The loose use of "arrived" was significant. The paragraph refers to "persons who have arrived" a person who was clearing Immigration Control would be doing so after arrival. Therefore, if "arrival" as used in the Social Security Regulations was a term of art as used in the Immigration Control Legislation all asylum seekers would have to claim asylum before they reached Immigration Control.
- As to the general circumstances in which claims for asylum are made it was accepted, said Mr Seddon, that asylum seekers had to use subterfuge to get out of their own country because it was not possible to obtain a visa to come to the West. They had to resort to false papers or produce their own genuine documents but give false reasons for their journeys. It was also the case that many asylum seekers came into the country with agents who were carrying false papers and who did not want to be exposed at Immigration Control or lose the papers. Such agents told their clients not to apply for asylum until after passing through Immigration Control. There were also those asylum seekers who were smuggled past Immigration Control in lorries and in other ways. All those individuals were making their claims for asylum in the only way open to them. This was recognised by the 1951 Convention on Refugees. If the tribunal's decision was correct all of those asylum seekers who were forced to resort to subterfuge would be excluded from entitlement to benefit under the Income Support system.
- Mr Seddon said that the reasoning which I had adopted in CIS/2719/1997 should be followed with the result that any claim for asylum made within the port of arrival, even although made after passing Immigration Control, would bring the claimant within the regulation 70(3A) definition. However, referring to paragraph 24 of CIS/2719/1997 he said that, as had been argued for the claimant in that case, for the purposes of that definition the stages of arrival included the first reasonable opportunity which the claimant had to make his application. When that opportunity arose would depend on the circumstances of the applicant. In some cases it would arise at Immigration Control but in others it could arise later, even after leaving the port. Acceptance of that degree of flexibility would be consistent with the United Kingdom's obligations under the treaties and conventions dealing with the treatment of refugees.
- Turning to the other Commissioners' decisions, Mr Seddon referred first to those of Commissioner Rowland. In CIS/143/97, in paragraph 6, Commissioner Rowland had accepted the argument for the Secretary of State that "on arrival" for the purposes of regulation 70(3A) means "while clearing Immigration Control at the port of entry". However, in that case the claimant was not represented and there was no oral hearing. In a later case, CIS/4117/97, the same Commissioner, having heard argument at an oral hearing, took a different view. The Commissioner accepted that ministerial statements made during Parliamentary proceedings indicated that "on arrival" was intended to be a more flexible test than simply "while clearing Immigration Control" and he accepted also that that simple test should not be replaced with another simple but inflexible test. Commissioner Rowland had taken the view that questions of who had or had not made an application for asylum on arrival had to be decided on a case by case basis and the claimant in the case before him could not be said to have come within the scope of regulation 70(3A).
- CIS/4117/97, said Mr Seddon, had to be read with Commissioner Rowland's next case which was CIS/4439/98. In that case a solicitor's clerk whose firm had been instructed by the claimant's aunt to assist the claimant in a claim for asylum when she arrived was waiting for the claimant at the Airport. When the claimant emerged from Immigration Control with her passport the clerk realised that the claimant had not been given leave to enter as an asylum seeker. The clerk raised the matter with the Immigration Officers and it was denied that the claimant had made any claim for asylum although the claimant asserted that she had done so. The clerk telephoned her principal to tell him what was happening and he made phone calls to the officer concerned and to a Senior Officer but was told nothing further could be done. The principal then instructed the clerk that nothing further could be done for the claimant at the Airport that day. The question of asylum for the claimant was pursued on the first available day thereafter at Lunar House. Commissioner Rowland accepted that on those facts the solicitors telephone calls to the Immigration Officer and the Senior Immigration Officer intimating that his client wished to claim asylum amounted to an in port application which brought the claimant within regulation 70(3A). In paragraph 11 of that decision Commissioner Rowland noted an Immigration Officer's power under paragraph 6(2) of Schedule 2 to the Immigration Act 1971 to recall within 24 hours a person to whom leave to enter had been granted for the purposes of reconsidering the leave. That power to recall and reconsider enjoyed by the Immigration Officer indicated to the Commissioner that the flexibility in the interpretation of "on arrival" for which he, Mr Seddon, argued was consistent with the scheme of Immigration Control under the 1971 Act.
- Mr Seddon next referred to Commissioner William's decision CIS/4341/98 the facts of which were that a claimant had passed through Immigration Control on a false passport without claiming asylum but was taken back to Immigration Control by an agent within an hour and without leaving the airport. The claimant attempted to claim asylum on that second attendance at Immigration Control but the claim was not accepted. Commissioner Williams also noted the power to recall a claimant within 24 hours for reconsideration of a grant of leave to enter conferred on Immigration Officers by the Schedule 2. He decided that in the circumstances of the claimant in CIS/4341/1998 a claim for asylum had been made in the Airport on her return to the Immigration Office and that brought her within regulation 70(3A).
- Mr Seddon said that in the instant case the tribunal had made no findings in fact as to if and when the claimant made an application for asylum. If I adopted his approach, he said, it would not matter what was the claimant's state of knowledge because she made a claim in port. If I adopted Commissioner William's approach it would be necessary to make findings in fact. He submitted that the evidence which was before the tribunal to the effect that the claimant believed that she did not think that she could claim when she was passing through what she did not know at the time was Immigration Control should be accepted. Had she been aware that she could claim at that point it would have been bizarre for her not to have done so but if I had any doubt about the facts of the case I should remit it for rehearing by a tribunal.
- In response to a question from me Mr Seddon submitted that the recording of the application for asylum which is required to bring the claimant into regulation 70(3A) is a requirement for an overall record of the application and a record made later than the time of the application or even at another place is sufficient for the purpose of the regulation. In this case the record was in fact made, presumably at Croydon and is simply a record of a claim made at the Airport. All that had happened was that the claimant made the application for asylum at Heathrow and was told to go to Croydon. The claim was then recorded at Croydon and that was a record of the claim which was initiated at the Airport. If that were not so the result would be that an Immigration Officer's refusal to accept a claim at the Airport or his failure to record it could be remedied only by judicial review. Parliament could not have intended that carelessness or recalcitrance on the part of an official could have that effect. His alternative submission was that the point of a lack of a record of the Airport application had not been taken against the claimant in the proceedings so far but at page 9 of the appeal bundle at the end of the first paragraph is evidence that the Immigration Officer at Heathrow gave the claimant a bit of paper with the Lunar House address and telephone number on it so there is a contemporaneous record of the application in the written instruction of how to further progress the claim. That piece of paper was before the tribunal. It can be inferred from that that the officer kept a separate record. Finally, citing R v. Lord Chancellor ex parte Witham [1997] 2 All ER 779 and reminding me that the same argument had been put to me in CIS/2719/97, Mr Seddon submitted that statutory provisions which restrict entitlement to Social Security benefits were to be construed strictly as against the notion of restriction.
- Mr Chang said that his starting point was that the correct test for whether or not a claimant made an application for asylum "on arrival" was whether or not he had done so before passing through Immigration Control. That was because the case law, the Hansard material and the pre-Parliamentary material (the Social Security Advisory Committee Report and comments on the Persons Abroad Regulations) all supported that view.
- Mr Chang said that the case law was inconsistent. The opposite poles were CIS/143/97 which adopted the "Immigration Control" test and CIS/2719/97 which applied the "port perimeter" test. The inconsistency was resolved by Commissioner Pacey in CIS/597/1999 in the interests of comity and commonsense. That was something which the Commissioner was entitled to do on the principles enunciated in the Minister of Pensions v. Higham [1948] 2 KB 153 and in Colchester Estates (Carter) v. Carlton Industries PLC [1986] 1 Ch. 81. Commissioner Pacey had looked at both decisions and said why one of them was incorrect. In the interests of comity his decision should be followed, the relevant paragraphs of the decision being from 10 onwards. In those paragraphs the Commissioner reviewed all previous authorities and opted for the Immigration Control test. In doing that the Commissioner had followed the views expressed by Commissioner Howell QC in CIS/259/99 and CIS/3867/98. The claimant's subjective intentions were not relevant. The test was an objective factual test. He referred to paragraphs 12 and 13 of CIS/259/99. There it is stated that "on his arrival (other than on his re-entry) in the United Kingdom" must be read in accordance with the normal principles of legislative construction as meaning "arrival" as that term is used in the Immigration Act 1971 and not in some different more general sense from ordinary usage. The Commissioner had, in his paragraphs 14 to 16 of CIS/259/99 considered the difference between "arrival" and "entry" as used in the 1971 Act. Citing the House of Lords decision in R v. Naillie [1993] AC 674 he had said that "arrival" was physical arrival and preceded "entry" as that term was used in the 1971 Act. In his paragraphs 17 and 18 Commissioner Howell had said that there were only three ways in which someone without British nationality could enter the United Kingdom through a recognised port of entry. These were by claiming asylum, by asking to be allowed to enter as a visitor etc., or by making de facto entry without making any application at all. It was in the Commissioner's judgment only a person employing the first method who could be said to have claimed asylum on entry. Mr Chang submitted that Commissioner Howell's was the correct view and that the port perimeter and flexibility tests should not be used.
- Referring to the quotations from the Hansard report of the Parliamentary proceedings in paragraph 11 of CIS/2719/1997, Mr Chang said it was apparent from the Ministerial statements that it was intended that an application for asylum, to bring the applicant within regulation 70(3A), had to be made to an Immigration Officer. That argument was supported by the report of the Social Security Advisory Committee. At paragraph 4 of the Secretary of State's statement reference was made to "those who claim at the point of entry". In paragraph 16 there was a reference to "in-country" applicants and in paragraph 19 there is a reference to it being not unreasonable to deem those who have misrepresented their situation to the Immigration Officer to have excluded themselves.
- Mr Chang submitted that the case law, the Hansard record and the Social Security Advisory Committee's report all indicated that the legislative intention was that "on his arrival" as used in regulation 70(3A) meant that the claimant must say at Immigration Control that he seeks asylum. In neither this case nor in the case to which the appeal on file CIS/2702/00 related had the claimant done that.
- On the matter of recording the application for asylum Mr Chang referred to the tribunal's findings in fact where it is said, in the third paragraph, that the claimant "went to the Immigration Office and said she wanted to claim asylum". Mr Chang understood that there was an "Immigration Office" funded by the Secretary of State in part but that it was an independent advisory office. It was not clear to him that the claimant had approached an officer of the Secretary of State at Immigration Control. He thought that Mr Seddon was correct to say that the record would not be contemporaneous but should record when the claim was treated as made. Referring to the notification of temporary admission dated 9 June 1998 and the note, on document 4 of the bundle, it would appear that the claim for asylum had been treated as made when the claimant arrived at Lunar House. That was something which could be cleared up by asking the Home Office when the claim was treated as made.
- Mr Seddon said that Commissioner Pacey's decision on CIS/597/1999, an attempt at the resolution of differences between Commissioners on the grounds of comity, could not be followed. Comity could not be achieved precisely for the reason given by Commissioner Howell in paragraph 11 of CIS/259/99, namely, the fact of two objectively defined but inconsistent tests of "on arrival" enunciated by Commissioners, each supported by an equal weight of judicial authority. Mr Seddon thought that there were in fact three tests. These were the "Immigration Control test, the perimeter test and the test of the facts of the particular case. He disagreed with Commissioner Howell's view, expressed in the same paragraph 11, that the only test was objective and factual. He submitted that subjective factors, such as the claimant's state of health were relevant. The fact that Commissioner Pacey's decision was later than the others cited in argument was not enough for it to be preferred to the others because in paragraph 5 the Commissioner seems to have mistaken which Commissioner favoured the Immigration Control test and which favoured greater flexibility. The Commissioner had attributed CIS/3231/97 to Commissioner Rowland when, in fact, that was a decision of Commissioner Sanders and has to be read with his later decisions as regards the pre-legislative papers. Mr Seddon said that all of the ministerial Parliamentary statements and the report of the Social Security Advisory Committee were supportive of the perimeter test or something more flexible but not the Immigration Control test.
- Neither this nor the appeal on CIS/2702/00 has been easy to decide. Firstly, I accept Mr Seddon's argument that, as pointed out by Commissioner Howell, there are two quite inconsistent schools of thought among the Commissioners who have decided cases on the interpretation of regulation 70(3A), those who have applied the "Immigration Control test" and those who accept that "on his arrival" allows for a degree of flexibility and that where the claimant's circumstances were such that it was reasonable for him not to intimate his requirement for asylum at Immigration Control he can be treated as having made his application on arrival if he makes it at the earliest reasonable opportunity for him to do so. The interpretation of regulation 70(3A) which I adopted in CIS/2719/97 and other cases allows for only limited flexibility because I have taken the view that the application for asylum, while it need not be made before clearing Immigration Control, must be made to an official acting in the name of the Secretary of State, almost certainly an Immigration Officer, and must be made before the claimant leaves the port of arrival. That means that where the claimant does not arrive at a port with a designated control zone and immigration officers or does not arrive at anything in the nature of a port, for example, an open beach where the process of arrival will have been completed by the simple expedient of stepping ashore, it would be only very rarely that the claimant would be able to approach an officer of the Secretary of State at a time or place of such proximity to the time and place at which he came in to the United Kingdom for that approach to be "on his arrival" in the country. With the greatest of respect to those Commissioners who have said that the test is more flexible than that and can take account of the claimant's particular circumstances I agree with Commissioner Howell that the test which has to be applied is objective and factual. Either the claimant has arrived or he has not, and the question is what constitutes arrival for the purposes of regulation 70(3A).
- Of all the Commissioners' decisions which have been cited to me as authority for the view that the "port perimeter" test is more flexible than paragraph (3A) warrants those which give me most pause for thought are those of Commissioner Howell. It seems to me that he has two main reasons for his conclusion that it is the "Immigration Control" test which has been set by regulation 70(3A). Firstly, the Parliamentary statements by Ministers and the report of the Social Security Advisory Committee all point, in his opinion, to the intention to exclude from entitlement to Income Support claimants who did not claim asylum at the point in the arrival process beyond which an application for asylum would be an in-country application with the result that the procedures for appealing a refusal of leave to enter would be the long procedures for appealing against a refusal of an in-country application rather than the more summary procedures which would apply to appeal against a refusal given at Immigration Control. Secondly, Commissioner Howell thinks that the language of the Social Security legislation which imposes the restriction on the asylum seeker's right to Income Support includes expressions which are terms of art in Immigration Control legislation. Although I am reluctant to disagree with such an experienced Commissioner, I have to do so in this case.
- If one is looking for an expression in the Immigration Act 1971 which specifies the point at which an out-of-country application for asylum becomes an in-country application it is not "arrival" or any expression including that word used in the 1971 Act. The whole of Immigration Control under the Act is based on the concept of entry to the United Kingdom and what happens after entry. It is only entry to, remaining in and departure from the country which are subject to control under the Act. The only mention in the Act of the significance in law of a person's arrival in the United Kingdom is in section 1(3) which provides that arrival in and departure from the United Kingdom on a local journey from or to any of the Channel Islands, the Isle of Man or the Republic of Ireland is not subject to control under the Act. Section 11(1) refers to a person arriving in the United Kingdom by ship or aircraft but there is no attempt to define "arrival" as being, for example, the point at which the ship or aircraft enters British territorial waters or air space, or the point at which the ship docks or the aircraft touches the ground. On the other hand it is provided that the person arriving is deemed not to enter the United Kingdom unless and until he disembarks and even when he has disembarked, if he does so into a controlled zone, he is deemed not to have entered the country until he leaves the controlled zone. It has been common ground in all of the appeals to tribunals and Commissioners involving the interpretation of regulation 70(3A) that it is on leaving the controlled zone, at the latest, that an asylum seeker will encounter an Immigration Officer. In practice he will not normally encounter an Immigration Officer before that point.
- In CIS/2719/97 I took the view that there was sufficient ambiguity in the expression "on his arrival" to justify my examination of the Parliamentary papers in which were recorded the Ministerial statements as to the legislative intention behind the Immigration and Asylum Act 1996 and the provisions of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 which that Act validated following the Court of Appeal's decision in the case of R ex parte JCWI [1996] 4 All ER 385. I cited Pepper (Inspector of Taxes) v. Hart [1993] AC 593. However, even if I had not been able to persuade myself that I was entitled to invoke that judicial authority I was, and am now, entitled to follow the longstanding practice of Social Security Commissioners and look to the pre-legislative papers for an indication of the purpose of the legislation (R(G) 3/58, R(M) 1/83, R(SB) 6/86 and CIS/5177/97). The result of my examination of the relevant Hansard reports and the report of the Social Security Advisory Committee on its consideration of the 1996 Persons from Abroad Miscellaneous Amendments Regulations are set out at length in my decision on CIS/2719/97 and need not be repeated here. Suffice it to say that the SSAC report makes it clear that the intention behind the 1996 Regulations and the amendments which they effected in the Income Support (General) Regulations was to restrict the entitlement to Income Support of asylum seekers who did not apply promptly for asylum when they arrived in this country but gained permission to enter the country from an Immigration Officer on grounds other than asylum and then applied for asylum at a time when the longer procedures for appealing against any refusal would extend their stay in this country before removal if the appeal failed. A consideration of the mischief identified in the SSAC report together with the Ministerial references in the course of the Parliamentary proceedings to the Government's desire that asylum seekers make themselves known to the Immigration Officers in the port of arrival would point to the interpretation of "on his arrival" in regulation 70(3A) being "at Immigration Control".
- However, as I pointed out in CIS/2719/97 ministers repeatedly said to Parliament that there would be flexibility and that an asylum seeker would not be penalised for some difficulty about making himself known at Immigration Control. Ministers did not say categorically that the essential test would be whether or not the claimant applied for asylum before passing through Immigration Control and out of the controlled zone, the last point in the arrival process before which he is deemed by section 11 of 1971 Act not to have entered the country. Clearly, if it had been the intention that Immigration Control was to be an absolute dividing line between those claimants who would be able to qualify for Income Support and those who would not it would have been an easy enough matter for Ministers to have said so and an easy enough matter for the regulations, instead of using the general language expression "on his arrival," to provide specifically that the application for asylum has to be made to an immigration officer before the claimant ceased to be deemed by virtue of section 11 of the 1971 Act not to have entered the country or before he is released from detention or temporarily admitted under the powers conferred by Schedule 2 to the Act. That would have ruled out anybody who passed through Immigration Control clandestinely or by-passed Immigration Control by coming into the country at some place other than a port at which there is Immigration Control. It is that lack of specification in both the Ministerial statements and the terms of regulation 70(3A) which leads me to adhere to the conclusion at which I arrived in CIS/2719/97 that the legislative intention behind the 1996 Act and the 1996 Regulations was to remedy the mischief identified in the SSAC report and in the Ministerial statements to both Houses of Parliament by something less rigid than the "Immigration Control test".
- Commissioner Howell referred in his decisions to the House of Lords decision in R. v. Naillie [1993] AC 674 as support for his view that regulation 70(3A) of the Income Support (General) Regulations should be interpreted by having regard to the language of the Immigration Act 1971. In that case the House of Lords endorsed the Court of Appeal decision that an agent who had supplied intending immigrants with false papers could not be convicted of facilitating his clients' illegal entry to the United Kingdom because the clients had not attempted to leave the controlled zone at the port and had applied for asylum while still in the zone. The House had emphasised the distinction made by the 1971 Act between "arrival" and "entry". I do not think that the House of Lords judgment supports Commissioner Howell's view. The very fact that the 1971 Act makes such a clear distinction between entry and arrival, without ever defining arrival but making very clear what entry is, seems to me to support the view that the reference in regulation 70(3A) to arrival rather than to entry indicates that the draftsman did not have "entry" as used in the 1971 Act in mind as the defining point. The passage from the speech of Lord Slynn of Hadley in Naillie quoted by Commissioner Howell gives some definition to "arrival" as used in the 1971 Act. It is the stage before entry at which those seeking entry wait for examination and are examined. However, Lord Slynn was examining the language of the 1971 Act in order to decide whether or not a crime relating to entry had been committed before the individuals seeking entry had left the controlled zone at their port of arrival. He was not attempting to interpret other legislation in a different statutory code by importing the technicalities of the 1971 Act, to that other legislation.
- The Naillie decision is to my mind of no help to the Secretary of State's case in this and similar instances. The weakness in that case is that the Secretary of State's draftsman has employed in paragraph (3A) an expression which could refer to the pre-entry stage described by Lord Slynn but the Secretary of State argues for an interpretation which equates arrival with the instantaneous action of clearing immigration control notwithstanding that ministers in their explanations of the legislative intention have described a proceeding which need not be instantaneous and could involve two encounters with immigration control several days apart. Moreover, what ministers described is compatible with paragraph 6 of Schedule 2 to the 1971 Act which authorises an immigration officer to recall an entrant and change the basis of his permission to enter or substitute a temporary permission with the result that the applicant for entry is deemed not to have entered.
- That leaves me with the question of what is the test if it is not the "Immigration Control test". On this I again adhere to my decision on CIS/2719/97. The ministerial statements indicate that even although it was envisaged that there would be sufficient flexibility in procedures to enable somebody who had not been able to make and have recorded an application when he first came through Immigration Control the intention was nevertheless that the claimant's desire for asylum would be made known while he was still in the process of arrival. That is "arrival" in the general meaning rather than as interpreted by Lord Slynn for the purposes of the 1971 Act. It was repeatedly said that the application should be made "in port". The most flexible meaning consistent with that intention which can be given to "on his arrival" is "before the claimant leaves the port of arrival". It is unlikely that a claimant would remain in the port of arrival and delay making an approach to an Immigration Officer for more than 24 hours therefore the practical effect of the "perimeter test" which I adopt is that the claimant would have the same flexibility about revealing his true intentions to an Immigration Officer after he had obtained leave for some other reason than asylum as paragraph 6 of Schedule 2 to the 1971 Act, to which I refer above, confers on Immigration Officers. It seems from the facts of the various asylum seekers' cases with which I have dealt that where somebody returns to Immigration Control to ask for asylum the Immigration Officer does not deal with the application but sends the claimant to an Immigration Office. The reasons for that may be purely logistical or it may be that the Home Office takes the view that because the claimant has obtained entry to the country illegally the application which he now requires to make for asylum is an application for leave to remain, rather than leave to enter, which falls to be dealt with under the 1971 Act by the Secretary of State rather than the Immigration Officer. Nevertheless, the power to re-consider the permission to enter, so prolonging the clearance of Immigration Control, is there.
- It follows that as I adopt the "perimeter test" my view is that the tribunal misdirected itself in not making full inquiry into what the claimant in this case did while she was in the Airport in order to establish whether or not she did in fact make a declaration of a need for asylum to an Immigration Officer after she had passed through Immigration Control but before she left the Airport. The tribunal's decision has, therefore, to be set aside. In the circumstances of this case I do not think that I should remit for a new hearing. Although there are discrepancies and a lack of absolute clarity in the various accounts of her actings which the claimant has given to the authorities at different stages in her applications for asylum and for Income Support no particular version of her history of her arrival at Heathrow has ever been challenged. There is Mr Chang's point that it is not clear whether the claimant, having asked for directions to the "Immigration Office", was directed to Immigration Control or, directed to, the Refugees Aid Office in the Airport. I agree with Mr Chang that even although that office is partly financed by the Secretary of State the staff working in it are not necessarily officers of the Secretary of State. The standing of that office is a question to which I referred in the appeal on CIS/1137/1997 which I heard with that on CIS/2719/1997. In remitting the former appeal for rehearing by a tribunal I directed that one of the matters which had to be ascertained was whether or not the staff in that office have sufficient connection with the Secretary of State for an intimation there of a need for asylum to be regarded as an application made to the Secretary of State before leaving the port of arrival. Mr Chang did not appear for the Secretary of State in those two earlier appeals. It is unfortunate that those who dealt with the case remitted to the tribunal did not pass to him the results of their inquiries into the standing of the advisory office.
- After the oral hearing I directed that the solicitors for the claimant should endeavour with her to ascertain which office it was that she had visited in order to apply for asylum. In a letter of 7 May 2002 the solicitors say that the claimant had recently gone to Heathrow Airport but was unable to identify the place where she first intimated that she required asylum. I have decided to accept Mr Seddon's point made at the oral hearing and reiterated by the claimant's solicitors in that letter that until the oral hearing it had never been suggested that the office to which the claimant was directed to make a claim for asylum was not the Immigration Control Office. The tribunal, although declining to come to a conclusion as to the veracity of the claimant's evidence, has not indicated which particular part of her evidence, if any, might, in its view, be inaccurate. In particular, there is no indication that the tribunal disbelieved the claimant's evidence that she had intimated her claim at the office where the Immigration Officers were stationed. I accept, therefore, Mr Seddon's point that by the date of the oral hearing it was too late to challenge or attempt to clarify the claimant's evidence on the point, and that it should be accepted.
- On the question of whether or not the claim for asylum in the Airport was adequately recorded for the purposes of regulation 70(3A) I agree with Mr Seddon and Mr Chang that the recording could be retrospective and that the handwritten note of the telephone number and address of Lunar House given to the claimant in the Airport together with the record made at Lunar House when she attended there is sufficient record for the purposes of the Regulations.
- For the foregoing reasons the claimant's appeal succeeds and my decision is in paragraph 1 above.
(Signed) R J C Angus
Commissioner
(Date) 10 October 2002
