Szoma v Secretary of State for Work and Pensions

This is an appeal against the decision of Mr Commissioner R J C Angus, given on 10 October 2002, whereby he allowed an appeal against a decision of a Social Security Appeal Tribunal dated 26 January 2001 in which the Tribunal had allowed an appeal against the refusal by the Secretary of State for Work and Pensions (‘the Secretary of State’) to pay income support to Robert Szoma (“the claimant”) from 7 July 2000. The issue is whether the claimant is “lawfully present in the United Kingdom” for the purposes of paragraph 4 of Part I of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (“the 2000 Regulations”).

The claimant, a national of Poland, arrived in the United Kingdom on 8 November 1998 and claimed asylum. For a time he received income support under the then existing Regulations. He was allowed temporary admission to the United Kingdom. His application for asylum was refused on 19 October 1999 but he is still in the country.

Income support was again claimed in July 2000 by which time section 115 of the Immigration and Asylum Act 1999 (“the 1999 Act”) had come into force. Section 115(1) provides that no person is entitled to the social security benefits specified in the subsection, which include income support, under the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”), “while he is a person to whom this section applies”. Subsection (3) provides that “this section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed”. It is conceded that the claimant is a person subject to immigration control.

Regulation 2(1) of the 2000 Regulations provides that, with respect to certain benefits, including income support, “a person falling within a category or description of persons specified in Part I of the Schedule is a person to whom section 115 of the Act does not apply”. The Schedule is headed “Persons who are not excluded under section 115 [of the 1999 Act].” Paragraph 4 specifies:

“A person who is a national of a State which has ratified the European Convention on Social and Medical Assistance (done in Paris on 11^th December 1953) or a State which has ratified the Council of Europe Social Charter (signed in Turin on 18^th October 1961) and who is lawfully present in the United Kingdom.”

Poland ratified the Convention on 25 June 1997 so that the claimant is entitled to income support if he is “lawfully present in the United Kingdom” within the meaning of that paragraph.

The Tribunal held that it “was satisfied that lawfully present meant that Mr Szoma was in the United Kingdom with the knowledge of the State and with a legal permit. Mr Szoma was given temporary permission by the Immigration and Nationality Department. … he was both present and lawfully present … .”

The Commissioner took a different view holding, first, that the case was governed by the decision of this Court in Kaya v Haringey LBC [2002] HLR 1 and, secondly, that he did not accept the submission that the decision in Kaya was wrong.

For the claimant, Mr Drabble QC submits that the Court is not bound by the decision in Kaya because it was reached per incuriam and, secondly, that, on a proper construction of the Regulations, an asylum seeker who has been granted temporary admission to the United Kingdom and who is not in breach of the immigration laws is lawfully present in the United Kingdom within the meaning of the Regulations.

It is common ground that the use of the expression “lawfully present” in the Schedule arises from the use of the similar expression ‘lawfully within their territories’ in Article 13 of the Council of Europe Social Charter (revised, 3 May 1996) (“CESC”), to which the United Kingdom is a party. Article 13 imposes an obligation on the United Kingdom Government, “with a view to ensuring the effective exercise of the right to social and medical assistance”, amongst other things, “to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in the case of sickness, the care necessitated by his condition” (Article 13 paragraph 1). Paragraph 4 of Article 13 requires contracting parties “to apply the provisions referred to in paragraphs 1, 2 and 3 of this Article on an equal footing with their nationals to nationals of other Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance (“ECSMA”), signed at Paris on 11^th December 1953”.

Before considering the status of Kaya, it is appropriate to summarise Mr Drabble’s submissions in relation to lawful presence. He submits that the expression should be given its ordinary natural meaning. The claimant has been “temporarily admitted” to the United Kingdom under paragraph 21 of Schedule 2 to the Immigration Act 1971 (“the 1971 Act”). That provides, in so far as is material:

“(1)

A person liable to detention or detained under paragraph 16 above [which the claimant is] may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him.

(2)

So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer.”

The claimant thus has the written authority of an Immigration Officer to be present in the United Kingdom. He is not in breach of the immigration law and has authority to be present. He is physically present in the United Kingdom and his presence is not unlawful so he is lawfully present, it is submitted. Provisions relating to “entry” under the 1971 Act (s11 below) do not affect the meaning of the word “presence” in the social security Regulations.

Mr Drabble refers to Asylum Directorate Instructions issued by the Immigration and Nationality Directorate. They provide in Chapter 1, Section 1, paragraph 3.2, that “applicants who have been granted temporary admission have not been ‘landed’ or given any leave to enter but are lawfully present in the UK, provided they adhere to the conditions attached to the grant of temporary admission”. It is also submitted that the expression “lawfully present” has acquired an autonomous international meaning, by virtue of which persons granted a temporary form of permission to remain in a country come within its scope.

In Kaya, the claimant sought benefits which, as in the present case, required him to be lawfully present in the United Kingdom. As in the present case, he had been granted temporary admission under paragraph 21. In holding that he was not lawfully present, the Court relied on the provisions of section 11(1) of the 1971 Act, as amended, which provides:

“A person arriving in the United Kingdom by ship or aircraft shall for purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for this purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to this Act …..”.

Giving a judgment, with which Peter Gibson LJ and Jonathan Parker LJ agreed, Buxton LJ relied on the decision of the House of Lords in Bugdaycay v Secretary of State for the Home Department [1987] AC 514. In a speech with which the other members of the House agreed, Lord Bridge of Harwich had cited Article 32.1 of the Geneva Convention relating to the Status of Refugees 1951:

“The contracting State shall not expel a refugee lawfully in their territory save on grounds of national security or public order.”

Lord Bridge considered the case of Musisi, one of those considered in Bugdaycay. The point was taken by Mr. Collins on behalf of Musisi that, because Musisi was “lawfully in the territory” of the United Kingdom within the meaning of Article 32.1 of the Convention, he could not be expelled except on grounds of national security or public order. Having referred to section 11(1) and paragraph 21 of Schedule 2 to the 1971 Act, Lord Bridge stated, at page 526:

“Mr Collins was constrained to concede that, if his argument is right, it must apply equally to any person arriving in this country at a regular port of entry and presenting himself to the immigration authorities, whether he is detained or temporarily admitted pending a decision on his application for leave to enter. It follows that the effect of the submission, if it is well-founded, is to confer on any person who can establish that he has the status of a refugee from the country of his nationality, but who arrives in the United Kingdom from a third country, an indefeasible right to remain here, since to refuse him leave to enter and direct his return to the third country will involve the United Kingdom in the expulsion of ‘a refugee lawfully in their territory’ contrary to article 32.1.

The United Kingdom was already a party to the Convention when the Act was passed and it would, to my mind, be very surprising if it had the effect contended for. But I am satisfied that the deeming provision enacted by section 11(1) makes Mr Collins’ submission on this point quite untenable.”

In Kaya, Buxton LJ concluded at paragraph 6:

“In my judgment Lord Bridge’s exposition in Bugdaycay is a binding exposition of the meaning and implications of virtually the same phrase with which we are concerned in another international Convention. I regard it as binding upon us even if we are to be seen as interpreting ‘lawfully present’ as used in the ECSMA rather than ‘lawfully present’ as used in the domestic legislation of Class E of regulation 3 of the 2000 Regulations.”

Mr. Drabble stresses that it is not part of the claimant’s case that the United Kingdom is not complying with its obligations under ECSMA. Those obligations can be met otherwise than by paying income support. The purpose of the present claim is to establish that persons in the position of the claimant are “lawfully present” in the United Kingdom for the purposes of the 2000 Regulations and thus entitled to social security benefits including income support.

What was omitted from consideration in Kaya, submits Mr.Drabble, were statutory provisions relating to social security and to naturalisation under British nationality law which are inconsistent with the proposition that temporary admission falling within Section 11(1) of the 1971 Act does not amount to lawful presence for the purposes of the 2000 Regulations. Moreover, while ECSMA and its purposes were considered in Kaya (and Buxton LJ stated that ECSMA reserved to contracting states the right to determine conditions of entry), the conclusions of the Committee of Experts (now the Committee of Social Rights) (“the Committee”) established under the European Social Charter were not considered by the Court in Kaya.

Counsel refers to the absence of a deeming provision, such as section 11(1) of the 1971 Act, in the 1992 Act. By section 124 of that Act, entitlement to income support is conferred on “a person in Great Britain”. By virtue of section 113(1), a person “absent from Great Britain” shall he disqualified from receiving benefit. Section 137(2) provides a power to make regulations amongst other things “as to circumstances in which a person is to be treated as being or not being in Great Britain”. The statutory intention, it is submitted, is to entitle those physically present to claim the benefits. The former regulations, under which some people under immigration control are still receiving income support, adopted that approach.

Attention is drawn to the presence of the expression “for purposes of this Act” in section 11(1) of the 1971 Act. The deeming provision does not apply to an assessment of entitlement under 1992 Act, it is submitted. Moreover, paragraph 21(2) of schedule 2 to the 1971 Act contemplates that a person temporarily admitted may be employed with the consequence that national insurance contributions may be payable. It cannot have been the intention of the legislation to disqualify such employed persons from receiving contributory benefits. The intention of the 1999 Act and 2000 Regulations was not to introduce the deeming provision in the 1971 Act into social security legislation, it is submitted.

Reliance is also placed on section 6 and paragraph 9 of schedule 1 to the British Nationality Act 1981. A certificate of naturalisation as a British citizen may be granted subject to conditions, including a requirement of a period of time spent in the United Kingdom. Paragraph 9(1) provides that a period of detention imposed by virtue of the immigration laws shall be treated as a period of absence from the United Kingdom. That provision would not be necessary, it is submitted, if, without it, time spent in detention was not a period of presence in the United Kingdom for naturalisation purposes. Only if such specific provision is made, can a person present in the country as the claimant is be excluded from being lawfully present.

Moreover, section 11 of the Nationality, Immigration and Asylum Act 2002 makes specific provision (in section 11(3)) to prevent a person in the position of the claimant from being not “in breach of the immigration laws”. In the absence of specific provision in the social security legislation, the deeming provision does not apply, it is submitted.

Before considering the effect of those provisions I refer to Mr.Drabble’s submissions upon the reports of the Committee established under CESC. Member states are required to submit periodic reports to the Secretary-General concerning the application of CESC within its jurisdiction. The reports throw light, Mr. Drabble submits, on the interpretation to be given to the expression “lawful presence” in the Charter and Regulations. On behalf of the appellant, a considerable study has been made of the reactions of the Committee to reports submitted by member states over very many years.

For the Secretary of State, it is submitted, that the Committee have not addressed themselves to the issue which has arisen in this case. They are concerned with the treatment of those whom national legal systems regard as lawfully present. Opinions expressed by the Committee would not in any event amount to an authoritative interpretation of Article 13.4 and would not be binding on the Courts of member states.

I do not consider the references to the reports to be helpful upon the present issue and reference to them would in my view have been extremely unlikely to influence the decision of the Court in Kaya. I take a few examples. In 1995 the Committee noted that “asylum seekers and foreigners requesting residents permits who were allowed, for special reasons, to remain in Sweden while their applications were processed were entitled to assistance under the 1988 Asylum Seekers (Assistance) Act, which had since been amended”. A similar reference appears in the report on Sweden for 1996. A report expresses concern about whether Norway afforded the protection required under Article 13.4. In the report for 2000, the Committee, having noted that Article 13.4 only applies to nationals of the other contracting parties who are lawfully present in the territory of a contracting party, concluded that the situation in Norway was in conformity with the Article. A report on the Netherlands noted that those coming under the regulations on asylum seekers were eligible for social assistance.

I have found nothing in the submitted reports of the Committee to support the proposition that, in the view of the Committee, member states must treat asylum seekers or those under immigration control as “lawfully present” within the relevant jurisdiction. Their view would not be binding in any event. Nor can it be said that the reports demonstrate such a unity of view in member states that asylum seekers are lawfully present within the meaning of the Article that English law can be said to be out step with the general treatment of the term.

In my judgment, reference to these statutory provisions and to the Committee reports is a wholly inadequate basis upon which to establish that the decision in Kaya was reached per incuriam. In present circumstances, it would have to be shown that the decision was given in ignorance or forgetfulness of material which must have led to a contrary decision (R(W) v Lambeth LBC [2002] 2 All ER 901). Nor do the provisions cast doubt on the correctness of Kaya,in my judgment.

Section 124 of the 1992 Act does not incorporate the expression “lawfully present”. The 1999 Act and 2000 Regulations make specific provision for the terms of entitlement to social security benefits in the context of immigration and asylum legislation. They do so by reference to the concept of lawful presence which has been authoritatively construed in Bugdaycay. The expression does not appear in the 1992 Act which is not in any event concerned with immigration status and control.

As to the naturalisation provision, the expression “lawfully present” again does not appear. Moreover, the scheme provides for the acquisition of citizenship by naturalisation and there is no reason why the criteria for achieving that end should be the same as the criteria for the receipt of benefits while under immigration control.

The argument based on section 11 of the 2002 Act has no force, in my judgment. It makes clear that a person in the claimant’s position is not “in breach of the immigrations laws”. It does not bear upon the application of the deeming provision in the present context.

I do not find references to dicta in R v Wandsworth LBC ex parte O [2000] 1 WLR 2539 at 2551 D-G and in Chief Adjudication Officer v Wolke, Remilien [1997] 1 WLR 1640 to be helpful on the present issue. In O, the issue under consideration was a different one and the statement by Simon Brown LJ that “those who claim asylum at the port of entry and are granted temporary admission … are here lawfully” does not seek or need to consider the effect of section 11 of the 1971 Act or the concept of lawful presence in the Regulations. The context was the National Assistance Act 1948. The same applies to Lord Slynn’s statement in Wolke, at page 1647 G, that persons with temporary admission are persons “whose presence in the United Kingdom would not seem to be ex facie unlawful.” While income support was under consideration, it was in quite a different context.

In my respectful view, the decision in Kaya was correct. The words “lawfully present” must be considered as a single expression. In context, a presence which is not “in breach of the immigration laws” is not necessarily a lawful presence within the meaning of the 2000 Regulations. Bugdaycay is plain authority for a construction of section 11(1) of the 1971 Act on the basis that, by virtue of the deeming provision, persons subject to immigration control (meaning in this judgment persons temporarily admitted under the section) have not entered the United Kingdom and so are not lawfully present here. As Woolf LJ stated in the Divisional Court in R v Home Secretary ex parte Singh [1987] IAR 489 at 495:

“For the purposes of the [Refugee] Convention, a person temporarily admitted is therefore [that is, because of section 11(1) ] not to be regarded as lawfully in the territory. He is instead in an intermediate position which also differs from those in the country illegally … .”

It can readily be accepted that the wording of paragraph 4 of part I of the schedule to the 2000 Regulations is based on the wording of paragraph 4 of Article 13 of CESC. That wording is itself plainly based on the wording of Article 32.1 of the 1951 Convention, to which Lord Bridge expressly referred when reaching his conclusion in Bugdaycay. In the Appendix to the Charter there is also express reference to the Refugee Convention and to the obligations of contracting parties to refugees. Paragraph 2 refers to refugees “lawfully staying” in the territory of a contracting party. The reference to refugees in the Charter confirms the relevance to the present issue upon the Charter’s wording of Lord Bridge’s observations in Bugdaycay.

I agree with Buxton LJ’s conclusion in Kaya that the 1953 Convention leaves to states the definition of those present within a jurisdiction for the purposes of the 1951 Convention and instruments based on it. Of course I would accept that there must be limits to the use of deeming provisions to provide that categories of persons are not lawfully present but I do not consider the use of a deeming provision with respect to persons subject to immigration control to be unacceptable or inappropriate.

Article 13 of the Charter is concerned, as stated in paragraph 8 of this judgment, to the right to social and medical assistance and it is not claimed that the law of England and Wales fails to meet that obligation. Such assistance can be provided in other ways, for example under the National Assistance 1948. Indeed Article 13.1 contemplates assistance other than benefits under a social security scheme and the Committee’s general report on Article 13.4 for 1996 stresses that it is “emergency aid” which is contemplated by the Article. Construction of the expression “lawfully present”, as provided in Bugdaycay, does not place the United Kingdom in breach of its treaty obligations. It is permissible to exclude those subject to immigration control from benefits such as income support and the work of the Committee does not suggest otherwise.

Reassuring though that may be, the issue in this case is not how ECSMA obligations may be met but the meaning of the expression lawful presence. Persons subject to immigration control are not lawfully present in the United Kingdom within the meaning of the Regulations. A state may give limited rights to an applicant for asylum, while the applicant remains under immigration control, without conferring the status of lawful presence. It must be accepted that the Asylum Directorate Instructions are misleading in that respect but that cannot affect the construction of the Convention or the Regulations.

I would dismiss this appeal.

I agree that the appeal should be dismissed, simply because we are bound by the decision in this court in Kaya. It is true that the context in which the issue arose in Bugdaycay was quite different; and that the reasoning of the House of Lords was very brief, no doubt partly influenced by the very unattractive consequences of the argument. However, it was treated in Kaya as binding in a context directly analogous to the present case. I agree with Pill LJ that none of the points relied on by Mr Drabble would permit us to depart from that conclusion.

I also agree that the appeal should be dismissed. I have no doubt that we are bound by the decision in Kaya. Like Pill LJ, I respectfully agree with that decision in any event.

Does anyone appear in this case? No.

For the reasons given in the judgments handed down this appeal is dismissed.

There is an agreed order subject to permission to appeal. The appeal be dismissed. The appellant to pay costs to the respondent with the assessment of the amount of the appellant’s liability postponed. Detailed assessment of the appellant’s Community Legal Services costs.

We have considered the written application for permission to appeal to the House of Lords and Leave is refused.