Blakesley v Secretary of State for Work And Pensions

This judgment is in seven parts, namely:

In this appeal a refugee seeks to recover back-payments of income support in respect of the period before her refugee status was established. It is common ground that the appellant’s claim cannot succeed on the basis of UK legislation. The issue is whether the appellant can sustain her claim on the basis of international instruments.

Let me begin by setting out the relevant UK legislation. The statutory framework is as follows. The Asylum and Immigration Act 1996 (“the 1996 Act”), before it was amended on 2^nd April 2000, provided:

“11.

Saving for social security regulations

(1)

Notwithstanding any enactment or rule of law, regulations may exclude any person who has made a claim for asylum from entitlement to any of the following benefits, namely—

(a)

income support, housing benefit and council tax benefit under the Social Security Contributions and Benefits Act 1992;

(b)

income support and housing benefit under the Social Security Contributions and Benefits (Northern Ireland) Act 1992; and

(c)

jobseeker’s allowance under the Jobseekers Act 1995 or the Jobseekers (Northern Ireland) Order 1995.

(2)

Regulations may provide that, where such a person who is so excluded is subsequently recorded by the Secretary of State as a refugee within the meaning of the Convention—

(a)

that person may, within a prescribed period, claim the whole or any prescribed proportion of any income support, housing benefit or council tax benefit to which he would have been entitled had he been recorded as a refugee immediately after he made the claim for asylum; and

(b)

where he makes such a claim as is mentioned in paragraph (a) above in respect of housing benefit or council tax benefit having resided in the areas of two or more local authorities in Great Britain, the claim shall be investigated and determined, and any benefit awarded shall be paid or allowed, by such one of those authorities as may be prescribed.”

On 3^rd April 2000 a new statutory scheme for the support of asylum seekers, embodied in the Immigration and Asylum Act 1999 (“the 1999 Act”), came into force. All asylum seekers received the support provided for in this scheme. Section 115 of the 1999 Act provided that they were not entitled to the mainstream benefits available to the rest of the UK population. Section 123 of the 1999 Act provided:

“Back-dating of benefits where person recorded as refugee.

(1)

This section applies if —

(a)

a person is recorded by the Secretary of State as a refugee within the meaning of the Refugee Convention; and

(b)

before the refugee was so recorded, he or his dependant was a person to whom section 115 applied.

(2)

Regulations may provide that a person mentioned in subsection (1)(b) may, within a prescribed period, claim the whole, or any prescribed proportion, of any benefit to which he would have been entitled had the refugee been so recorded when he made his claim for asylum.”

The Income Support (General) Regulations 1987/1967 (“the Income Support Regulations”) were amended pursuant to section 123 of the 1999 Act. Regulation 21ZB of the Income Support Regulations. Regulation 21ZB of the Income Support Regulations, as it stood between 6^th April 2004 and 13^th June 2007, provided:

“21ZB Treatment of Refugees

(1)

This paragraph applies to a person who has submitted a claim for asylum on or after 3rd April 2000 and who is notified that he has been recorded by the Secretary of State as a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31^st January 1967.

(2)

Subject to paragraph (3), a person to whom paragraph (1) applies, who claims income support within 28 days of receiving the notification referred to in paragraph (1), shall have his claim for income support determined as if he had been recorded as a refugee on the date when he submitted his claim for asylum.”

On 14^th June 2007 section 12 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”) came into force. That section repealed both section 123 of the 1999 Act and regulation 21ZB of the Income Support Regulations.

I shall deal with the relevant international instruments later in this judgment, using the following abbreviations:

Article 31.1 of the Vienna Convention provides:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

In this judgment I shall use the phrase “category 1 asylum seekers” to mean persons whose claims for asylum will ultimately succeed. I will use the phrase “category 2 asylum seekers” to mean persons whose claims for asylum will ultimately fail.

A category 1 asylum seeker is a person who is a refugee, as defined in article 1 of the Geneva Convention. But the fact that he or she is (and probably has been for some time) a refugee is not known until the date when either the Secretary of State or a tribunal upon appeal accepts the validity of his/her claim.

After these introductory remarks, I must now turn to the facts.

The appellant is an Eritrean national, now aged 45, who came to the UK in 1997 and claimed asylum. The Secretary of State rejected that claim and his decision was upheld on appeal. On 23^rd August 2005 the appellant made a fresh claim for asylum on new grounds. The crucial issue raised in the appellant’s fresh claim was her religion. The appellant stated that she had now become a member of the Pentecostal Church and that, if returned to Eritrea, she would face persecution by reason of her new religion. On the 16^th February 2008 the appellant married Mr Barry Blakesley and moved into his house in Dorset. This strengthened her claim under ECHR article 8.

On 5^th June 2008 the Asylum and Immigration Tribunal allowed the appellant’s appeal against the Secretary of State’s decision to remove her from the UK. The tribunal held that the appellant was entitled to remain in this country on two grounds. First, the appellant would face persecution in Eritrea by reason of her Pentecostal Christianity. Accordingly she was a refugee as defined in article 1A of the Geneva Convention. Secondly, it would be a breach of the appellant’s rights under ECHR article 8 to remove her, since she now had an established family life in the UK.

On 9^th July 2008 the Secretary of State issued an immigration status document, formally recognising the appellant’s status as a refugee. On 24^th July 2008 the appellant made a claim for income support. The social security officials who considered the appellant’s claim awarded her income support as from 19^th July 2008. The appellant appealed against that decision, contending that she should be awarded income support for the entire period since she had applied for asylum.

The First-tier Tribunal dismissed the appellant’s appeal, holding that section 12 of the 2004 Act had abolished the entitlement of refugees to retrospective payment of income support. The First-tier Tribunal rejected the contention that the appellant had any right to retrospective payment of that benefit either under the Geneva Convention or under article 28 of the Qualification Directive. The Upper Tribunal upheld that decision on appeal.

The appellant now appeals to the Court of Appeal.

It is common ground that under UK legislation the appellant has no entitlement to payment of income support in respect of the period before 19^th July 2008. The appellant’s case is that her entitlement to such payment arises under article 23 of the Geneva Convention and article 28 of the Qualification Directive. The Upper Tribunal erred in failing to construe those provisions in the appellant’s favour. The appellant further contends that the failure to backdate her income support constitutes discrimination in breach of ECHR article 14.

This appeal was heard on 27^th January 2015. Mr Adrian Berry, leading Mr Desmond Rutledge, appeared for the appellant. Ms Samantha Broadfoot appeared for the respondent. I am grateful to counsel on both sides for the excellence of their oral argument.

My gratitude does not extend, however, to the appellant’s skeleton argument. That document contains several pages reciting the history of this litigation, who argued what at each stage of the process and so forth. There are quotations from Hansard and other irrelevant material.

That is not in accordance with the rules. A concise introduction to the relevant facts and the issues is all that is required, before the author sets out the arguments upon which he/she intends to rely, following the guidance in paragraph 5.1 of Practice Direction 52 A.

I must now turn to the three issues of construction which arise on this appeal, starting with the interpretation of article 23 of the Geneva Convention.

Article 23 of the Geneva Convention provides:

“Public Relief

The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.”

Mr Berry for the appellant contends that this provision is both forward looking and backward looking. Anyone who, upon inquiry, is found to be a refugee should receive public relief and assistance under article 23 as from the date of their application (or, if later, the date upon which they first qualified for refugee status). He submits that this interpretation is consistent with the humanitarian aims of the Convention, as expressed in the preamble to the Convention. He also submits that his interpretation is consistent with the purposive approach to construction which article 31.1 of the Vienna Convention requires.

Mr Berry also relies upon paragraph 9 of Lord Bingham’s speech in R v Asfaw (United Nations High Commissioner for Refugees intervening) [2008] UKHL 31; [2008] 1 AC 1061. In that paragraph Lord Bingham sets out the broad humanitarian aims of the Geneva Convention. He states that one of those aims was “to ensure reasonable treatment of refugees in their countries of refuge”.

Until 14^th June 2007 any successful asylum seeker received income support payments backdated to the time when he applied for asylum. Mr Berry submits that that former statutory regime complied with the requirements of article 23. The current statutory regime, which has been in force since 14^th June 2007, falls short of what article 23 requires.

Miss Broadfoot for the Secretary of State accepts that the Geneva Convention should be given a generous and purposive interpretation, bearing in mind its humanitarian objects. Nevertheless she submits that the court’s task is to interpret the words to which the contracting states have committed themselves by acceding to the Convention.

Miss Broadfoot contends that the phrase in article 23 “refugees lawfully staying in their territories” means refugees whose status has been established. It does not include category 1 asylum seekers. Those persons are in fact refugees, but their status has not yet been established. Accordingly on the Secretary of State’s case the former statutory regime went further than article 23 of the Geneva Convention required. The current regime is less generous to refugees, but still compliant.

It seems to me that in order to ascertain the meaning of the phrase “refugees lawfully staying in their territories” in article 23 it is necessary to look at the context in which that phrase appears and the scheme of the Convention.

The Geneva Convention contains a preamble setting out the underlying intentions and then seven chapters. Article 1 in chapter 1 defines a refugee as someone who:

“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Chapter IV of the Convention contains five articles dealing with welfare. The whole of that chapter is an appendix to this judgment.

Chapter V of the Convention contains ten articles dealing with administrative measures. Two of those articles, namely 32 and 33, are also included in the appendix.

It can be seen that articles 20, 22, 24.2, 24.3, 24.4 and 33 apply to “refugees”. Articles 23 and 24.1 apply to “refugees lawfully staying in their territory”. Article 32 applies to “a refugee lawfully staying in their territory”.

This difference in phraseology is significant. It has been the subject of recent consideration by the Supreme Court in R (ST) v Secretary of State for the Home Department [2012] UKSC 12; [2012] 2 AC 135.

The facts of ST are bound up with turbulent history of Eritrea. Between 1950 and 1993 Eritrea was part of Ethiopia under a federal structure. In 1993 Eritrea attained independence and gained international recognition as a separate state. There have been subsequent border conflicts between Ethiopia and Eritrea with much loss of life.

The claimant in ST was an Eritrean national, who had never lived in Eritrea. She was born in 1981 in Ethiopia when that was a federation, incorporating Eritrea. She remained living in Ethiopia, when the two countries separated. In 1998 the claimant came to the UK and claimed asylum. The Secretary of State refused her claim. An adjudicator allowed her appeal on the basis that the claimant had a well founded fear of persecution by reason of her religion, if returned to Eritrea. She failed, despite repeated attempts, to establish that she had a well founded fear of persecution in Ethiopia. The Secretary of State decided to remove her to Ethiopia. The claimant brought judicial review proceedings in order to quash that decision. Both the Court of Appeal and the Supreme Court rejected her claim.

The essence of the Supreme Court’s decision was that because of the claimant’s status as “refugee”, she had protection under article 33 of the Geneva Convention. Therefore the Secretary of State could not remove the claimant to Eritrea. The claimant was not, however, a “refugee lawfully in” the UK within the meaning of article 32.1. Therefore the claimant was not protected by article 32. Accordingly the Secretary of State was entitled to expel the claimant to any (safe) country other than Eritrea, in this case Ethiopia.

Lord Hope gave the leading speech with which the other members of the court agreed. He reviewed all the provisions of the Convention and noted that the rights conferred upon refugees depend on their degree of attachment to the contracting state in which asylum is sought. The Convention in its various articles provides five different levels of attachment to the asylum state:

Article 33 of the Convention requires no more than physical presence. Article 32 requires lawful presence. Lord Hope concluded that “lawful” presence meant presence that was lawful under the domestic law of the state where the refugee was currently residing. The consequence of that analysis was that the claimant was a refugee physically present, but not lawfully present, in the UK. Accordingly article 32 protected her against a return to Eritrea, but article 33 did not protect her against expulsion to Ethiopia.

The Supreme Court’s judgments in ST are of considerable assistance in relation to the present case. Looking at chapter IV of the Geneva Convention, it can be seen that articles 20, 22, 24.2, 24.3 and 24.4 merely require physical presence. On the other hand articles 21, 23 and 24.1 require lawful stay.

It is not difficult to see the logic behind those distinctions. All asylum seekers, both category 1 and category 2, require to be housed and fed while their claims are being processed. Likewise their children require to be educated during that interim period. On the other hand, other more generous welfare benefits are not essential for asylum seekers. Those additional benefits can properly be provided to genuine refugees, once it is known who they are.

If it was intended that all welfare benefits should be backdated for genuine refugees, article 23 would have referred to “refugees”, not “refugees lawfully staying in their territory”. A refugee is only “lawfully staying in” the UK once it is established that he/she is indeed a refugee. During the earlier period, although he/she is a refugee, no-one knows that this is the case. His/her presence is tolerated, because the UK cannot take the risk of expelling someone who may turn out to be a genuine refugee. His/her presence only becomes “lawful” under UK law when the proper authority (either the Secretary of State or on appeal a tribunal) has determined that the person is a refugee.

In my view this interpretation is entirely consistent with the broad humanitarian aims of the Convention. Both category 1 and category 2 asylum seekers receive accommodation and support at a basic level while their claims are being processed. As soon as that process is complete, the category 1 asylum seekers become established refugees and receive the full range of mainstream benefits. Taking the facts of the present case as an example, I do not see how it serves the broad humanitarian aims of the Geneva Convention to pay to the appellant a large lump sum representing historic accumulated income support. The appellant has received proper support, albeit under a different statutory regime, ever since she arrived in this country.

Mr Berry has drawn our attention to two documents prepared by the UNHCR. The first is UNHCR Executive Committee Conclusion Number 93, dated 8^th October 2002 (“conclusion 93”). The second is a briefing note dated 15^th June 2004 for the assistance of the House of Lords in a forthcoming debate (“the briefing note”).

The UNHCR is a respected body. Its views should always be taken into account, when the courts are considering the interpretation of the Geneva Convention. Conclusion 93 makes a number of recommendations concerning reception arrangements for asylum seekers. So far as I can see the asylum support system and the other arrangements accord with those recommendations. The UNHCR recommendations do not go so far as to recommend that successful asylum seekers receive lump sums back-payments representing the difference between asylum support and mainstream benefits.

The briefing note goes somewhat further. It states:

As stipulated in Para. 28 of the UNHCR Handbook, a person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition.  This would necessarily occur prior to the time at which his refugee status is formally determined.  Recognition of his refugee status does not therefore make him a refugee but declares him to be one.  He does not become a refugee because of recognition, but is recognized because he is a refugee.  From this it follows that a refugee with an outstanding asylum claim is still a refugee.

In this context, it is clear that all refugees fall within the provisions of Articles 23 and 24 of the 1951 Convention entitling them to be accorded the same treatment as nationals in regard to social security and public relief.  In the United Kingdom, refugees whose asylum applications are yet to be decided, are currently denied 30% of a UK national’s benefit entitlement, but are reimbursed once their status has been established and asylum is granted.  While UNHCR favours the granting of full benefit entitlement to all asylum seekers, it endorses as equitable the current arrangement, which sees an individual receiving retrospectively monies to which he was entitled as a refugee, but which he was denied during the time it took the UK government to recognise this.  We are concerned that the proposed amendments would deny support to a particularly vulnerable group of people at a time when they require funds to establish new lives and, in many instances, to repay informal loans that were acquired whilst reliant on just 70% of income support and with no right to work.

Integration Loans

Whilst UNHCR welcomes the idea of “integration loans” as an additional facility to aid the integration of refugees in the UK, such loans should not be a substitute for repayment of benefits that are temporarily withheld whilst refugee status is determined.

UNHCR considers that a loan system would be most effectively implemented as part of a holistic approach to refugee integration. Loans should be supported by financial and business advice and should not be regarded in isolation from broader issues of social and economic wellbeing.”

I can readily understand the UNHCR’s thinking behind the briefing note. Undoubtedly the pre-June 2007 arrangements were more favourable to refugees than the present statutory scheme. On the other hand the briefing note is essentially policy advice to assist the legislature in its allocation of national resources. The passage quoted does not govern the proper construction of article 23 of the Geneva Convention.

Let me now draw the threads together. For the reasons set out above I do not accept the appellant’s proposed interpretation of article 23 of the Geneva Convention. I therefore reject the first ground of appeal.

The Treaty of Amsterdam came into effect on 1^st May 1999. It extended the objectives of the EU in a number of respects. In particular, it inserted into the EC Treaty a new title IV governing immigration, asylum and visas. One of the objectives was to create a common European Asylum System.

The European Council held a special meeting at Tampere in October 1999 in order to take those proposals forward. Subsequently, in order to implement the decisions reached at Tampere, the Council of the European Union issued the Reception Directive, the Qualification Directive, the Procedures Directive and Council Regulation (EC) Number 343/2003 (commonly known as “Dublin II”). These instruments required the member states of the European Union to adopt a common approach to the allocation of asylum claims between member states, the processing of such claims, the treatment of asylum seekers and the treatment of refugees.

The Reception Directive sets out minimum standards for the reception and treatment of asylum seekers. Member states are required to provide housing, food and clothing either in kind or by means of financial allowances or vouchers. Member states are also required to provide education for the children of asylum seekers, which is similar to that provided to the children of their nationals.

The Procedures Directive sets out minimum standards on procedures for granting and withdrawing refugee status. The Qualification Directive sets out common criteria for determining who qualify as refugees. It also sets out the level of benefits which should be available to persons who do qualify as refugees.

Article 28 of the Qualification Directive provides:

“Article 28

Social welfare

1.

Member States shall ensure that beneficiaries of refugee or subsidiary protection status receive, in the Member State that has granted such statuses, the necessary social assistance, as provided to nationals of that Member State.

2.

By exception to the general rule laid down in paragraph 1, Member States may limit social assistance granted to beneficiaries of subsidiary protection status to core benefits which will then be provided at the same levels and under the same eligibility conditions as nationals.”

It seems to me that the three Directives fit together neatly to form a coherent package. In relation to welfare benefits the Reception Directive requires the host state to meet the basic needs of all asylum seekers. The Qualification Directive requires that successful asylum seekers (i.e. those who are recognised as refugees) then receive the same welfare benefits as nationals of the host state.

Mr Berry contends that article 28 of the Qualification Directive requires refugees to receive welfare benefits at the same rate as UK nationals backdated to the time when they applied for asylum or to the date (if later) when they became refugees, e.g. because of a revolution in their home state. In support of this construction he relies first and foremost upon article 23 of the Geneva Convention.

Mr Berry refers to recitals 14, 33 and 34 at the beginning of the Directive. Mr Berry also relies upon all of the provisions of chapter VII of the Directive (articles 20 to 34) as setting the context in which article 28 appears.

The main plank of Mr Berry’s argument has now fallen away. For the reasons set out in Part 4 above, article 23 of the Geneva Convention does not provide for payment of retrospective benefits in cases such as the present. Mr Berry candidly concedes that if he loses on article 23 of the Geneva Convention, that puts him in difficulties in relation to article 28 of the Qualification Directive.

I have nevertheless carefully considered both the recitals and the text of the Qualification Directive to see whether it goes beyond the requirements of the Geneva Convention in relation to the back-payment of welfare benefits. I do not think that it does. Recitals 14, 33 and 34 do not suggest any such intention. Nor do the general provisions of chapter VII.

In my view the phrase “beneficiaries of … refugee protection” in article 28 means persons whose status as refugees has been established. The verb “receive” means “receive from then onwards”. There is no express or implied obligation to make a lump sum payment representing the difference between the earlier asylum support payments or benefits in kind and mainstream benefits. If there were such a requirement, I would expect to see further provisions in the Qualification Directive explaining at least in outline how this should be achieved. In particular, some mechanism should be specified for reconciling the different regimes in the Reception Directive and the Qualification Directive. The Directives do not contain any such mechanism.

In conclusion therefore I do not accept the appellant’s construction of article 28 of the Qualification Directive.

In those circumstances, it is unnecessary to determine whether article 28 of the Qualification Directive would have direct effect if given the meaning for which the Appellant contends. Having considered counsel’s competing submissions, I do not believe that it would. However, this does not require resolution in the present appeal.

In the result, I reject the appellant’s second ground of appeal.

Article 14 of ECHR provides:

“Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Mr Berry advances the following propositions in support of his contention that the abolition of back-payments of income support is a breach of the appellant’s rights under article 14:

In my view this argument has a number of flaws. First, there is no significance in the fact that refugees whose status was established before 14^th June 2007 were treated more favourably than others. If I am right that the repeal of regulation 21ZB was not contrary to the UK’s international obligations, there was bound to be an arbitrary date when that (permissible) repeal took effect.

Secondly, there is no analogy between asylum seekers and British citizens in need of social assistance. In the case of asylum seekers it is not known whether they have any entitlement to be in this country. Therefore they all receive support under an asylum support scheme, which complies with the obligations imposed by the Geneva Convention and the Reception Directive. British citizens in need of social assistance are in a different position and they receive mainstream benefits.

Thirdly, in this case (as in R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173) there is an objective justification for the different treatment of the two groups to which the appellant points. The two groups are asylum seekers and British citizens in need of social assistance. Asylum seekers are a large group of people, an unknown proportion of whom have no entitlement to be here. Their entitlement to welfare support derives from international instruments, which do not apply to British citizens. In this sphere it is for the legislature and the executive to determine how national resources should be allocated.

In my view the appellant’s failure on her first two grounds of appeal is fatal to her case under ECHR article 14.

I therefore reject the third ground of appeal.

The appellant is a national of Eritrea who came to the UK and claimed asylum. Her claim initially failed. Subsequently, however, her claim succeeded because she converted to Pentecostal Christianity, a form of religion which would have caused her to be persecuted in Eritrea. The precise date when the appellant first satisfied the definition of refugee is unknown, but it was some years after her arrival in the UK. On 9^th July 2008 the appellant’s status as refugee was formally recognised.

The appellant was awarded income support from July 2008 onwards, but her claim for back-payments of income support to the date when she applied for refugee status was refused. The appellant appealed against that refusal. Both the First-tier Tribunal and the Upper Tribunal rejected her appeal.

The appellant now appeals to the Court of Appeal, basing her claim for back-payments of income support on article 23 of the Geneva Convention relating to the status of refugees, article 28 of Council Directive 2004/83/EC (the Qualification Directive) and article 14 of the European Convention on Human Rights.

In my view the UK is entitled to establish a support scheme for asylum seekers which is less generous than mainstream benefits, provided that it complies with the requirements of Council Directive 2003/9/EC (the Reception Directive). Successful asylum seekers receive the same welfare benefits as UK citizens as from the date when their refugee status is established. The international instruments upon which the appellant relies do not require the UK Government to make lump sum payments to successful asylum seekers representing the difference between previous asylum support and mainstream benefits.

Accordingly, if my Lords agree, this appeal will be dismissed.

I agree.

I also agree.