Secretary of State for the Home Department, R (on the application of) v Chief Asylum Support Adjudicator

J U D G M E N T

MR JUSTICE TOULSON:

The facts

1. Ms Niclette Manzana is Congolese. She entered the United Kingdom on a date unknown. On 3 June 1998 she applied for asylum and was given a standard acknowledgment letter ("SAL") issued by the Home Office's Immigration and Nationality Department office in Croydon.

2. On 31 July 2001 Ms Manzana made a written application to the National Asylum Support Service ("NASS") for asylum support. NASS is an agency of the Home Office. In the application form she stated that she had applied for asylum on 5 February 1996. She enclosed with the application a copy of her SAL. This purported to show that she had entered the United Kingdom and applied for asylum on 5 February 1996. That may have been the date on which she entered the United Kingdom, but it was not the date on which she applied for asylum.

3. The misstatement of the date on which she had applied for asylum was significant. The power of the Secretary of State to provide asylum support is conferred by section 95 of the Immigration and Asylum Act 1999 ("the Act"). I will refer to its terms later, but the effect of regulations made under it was to exclude Ms Manzana from eligibility for asylum support because she had not made her application for asylum at the time of her arrival in the United Kingdom. Those who make a later application for asylum "in country" are not eligible for support from NASS, but are eligible for local authority support under a different statutory scheme.

4. On receiving Ms Manzana's application, NASS accepted that the information given by her was correct. By a letter dated 1 October 2001 NASS informed her that her application for support had been approved and gave details of the support that she would receive. NASS later discovered that it had been misinformed. On 16 May 2002 it wrote her two letters. The longer letter read as follows (page 18):

"You have applied for support under the provisions of the Immigration & Asylum Act 1999, to maintain you while your application for asylum in the United Kingdom is under consideration. However, the Secretary of State is not satisfied that you qualify for NASS support as he considers that you may be entitled to receive other support. In reaching his decision the Secretary of State has taken into consideration all the factors in your application, but has terminated your support for the reasons outlined below.

The Secretary of State notes that you applied for NASS support on an application dated 31 July 2001. The Secretary of State also notes that you applied for asylum on 3 June 1998 and made your claim for asylum in-country.

As you are a person who claimed Asylum in-country on 3 June 1998 at the Asylum Screening Unit in Croydon, the Secretary of State notes that under regulation 4 paragraph 4(2) and sub section (4)(a) of the Asylum Support Regulations 2000, you are excluded from asylum support from the National Support Services as you are a person to whom interim support arrangements apply. He considers you to be a person who may apply for support from your Local Authority. The Secretary of State has terminated your support under regulation 21 Section (3) of the Asylum Support Regulations 2000."

It is common ground that the final sentence, with its reference to regulation 21(3) of the Asylum Support Regulations 2000 was inapposite. In its second letter of the same date NASS told Ms Manzana that she had a right of appeal and it enclosed a form of notice of appeal to the asylum support adjudicator.

5. Ms Manzana completed and sent in her notice of appeal. In it she said (page 152):

"In your letter you also claim that you have terminated my assistance in conjunction to Regulation 21 section (3) of the Asylum Support Regulations 2000. This is, as you claim, because I applied for asylum In-Country on 3 June 1998. I would [indecipherable] reject this as I did not apply for asylum on this date. I applied for asylum and arrived in the UK in 1996."

Hearing before Chief Asylum Support Adjudicator

6. Ms Manzana's appeal was heard by the Chief Asylum Support Adjudicator on 28 May 2002. Her appeal was allowed. Although Ms Manzana had indicated in her notice of appeal that she wished to attend the hearing, she did not do so. The adjudicator found the following facts. First, the date shown on Ms Manzana's SAL as the date of her application for asylum had been altered. Second, the true date of her application for asylum had been 3 June 1998, not as shown on her application to NASS for asylum support and on her SAL. Third, the evidence did not enable her to make a finding as to the precise date on which Ms Manzana entered the United Kingdom, but she had not sought asylum at her port of entry.

7. The key passages in the adjudicator's reasons for allowing Ms Manzana's appeal are paragraphs 8 and 9, in which she said as follows (page 16):

"8. In the circumstances, I am satisfied that the appellant is an in-country applicant and accordingly, is not entitled to support from the National Asylum Support Service ('NASS') as the Secretary of State has not accepted responsibility for such category of persons. However, I note that the appellant's initial application made on 31 July 2001 was in fact [approved] on 1 October 2001 and NASS support has been in payment since. Having determined that she is entitled to support, the Secretary of State cannot then decide that she does not in fact qualify for it. The only option available is to discontinue support.

9. Regulation 20 of the Regulations in the only provision under which support can be suspended or discontinued to an appellant. The only grounds upon which suspension and discontinuance of support can be made are those set out in Regulation 20. The Secretary of State does not have the power to suspend or discontinue support once support has been granted for any other reason."

She then made a reference to the decision of Burnton J in the case of R v Asylum Support Adjudicator and the Secretary of State for the Home Department ex parte Hussain (5 October 2001 QBD CO/105/2001). She concluded her reasons as follows:

"Accordingly, in the absence of a specific power to discontinue support on the grounds that the award of support has been made in error, this appeal is allowed."

Judicial review

8. Leave was given to the Secretary of State to challenge the decision allowing Ms Manzana's appeal. On this hearing, NASS has been represented by Mr Gerard Clarke and the Chief Asylum Support Adjudicator by Mr Nigel Giffin. I am grateful to each of them for their assistance. Ms Manzana has not been represented.

Central issue

9. The central question is whether it was lawful for NASS to discontinue asylum support to Ms Manzana. On that issue, Mr Clarke put his argument very simply. Ms Manzana was never eligible for asylum support under section 95 of the 1999 Act. When NASS realised this, it was under no legal obligation to continue to provide her with support.

10. Mr Giffin's argument was that although Ms Manzana was not originally entitled to support, the structure of the statutory scheme is such that once support began to be provided, it could only be discontinued under regulation 20. Mr Giffin relied in support of this proposition, as had the adjudicator, on the decision of Burnton J in the case of Hussain. He added that this rule, if correct, would not present dire consequences for NASS in a situation such as the present, because it would appear to have had the right to discontinue support under regulation 20(1)(b).

11. Mr Clarke's response was that regulation 20 is a complete code for determining when NASS may cease to provide support to a person who is otherwise eligible for support under the statutory scheme. In other words, it provides limited exceptions to a continued right of support. But it is unnecessary for the Secretary of State to have recourse to those regulations in the case of a person who fails to meet the criteria necessary to be within the compass of section 95 at all.

12. Mr Giffin's counter argument was that the question whether a person falls within the compass of section 95 is one given to the Secretary of State. Therefore, once he has determined that the applicant is within the compass of the section, the only exit route is that provided by regulation 20. For that proposition he relied on a line of authorities including Rootkin v Kent County Council [1981] 1 WLR 1186, where Lawton LJ said at page 1195:

"It is the law that if a citizen is entitled to payment in certain circumstances and a local authority is given the duty of deciding whether the circumstances exist and if they do exist making the payment, then there is a determination which the local authority cannot rescind."

Mr Giffin accepts, of course, that in considering the application of such general propositions one must always have regard to the language of the particular scheme and any intention properly to be inferred from its wording.

13. Mr Clarke submitted that to apply such reasoning in this case in the way that Mr Giffin seeks to do would not accord with a sensible reading of the statutory scheme, to which I must now refer. I will refer only to what is strictly necessary.

The Act

14. Section 95 provides, so far as relevant, as follows:

"(1) The Secretary of State may provide, or arrange for the provision of, support for --

(a) asylum-seekers, or

(b) dependants of asylum-seekers,

who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.

(2) In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded."

The section goes on to set out how it is to be determined whether a person is destitute. So under section 95 an applicant for support must show three things: that he or she is an asylum-seeker or dependent upon an asylum-seeker; that he or she is not excluded from the scheme; and that he or she appears to the Secretary of State to be destitute or likely to become destitute within the relevant period.

15. Section 103 provides a right of appeal to an adjudicator against a decision by the Secretary of State on an application for support under section 95 that the applicant does not qualify for support, or against a decision by the Secretary of State to stop providing support under that section.

16. Section 114 makes provision for the possibility of repayment in cases where support has been provided by error, as follows:

"(1) Subsection (2) applies if, as a result of an error on the part of the Secretary of State, support has been provided to a person under section 95 or 98.

(2) The Secretary of State may recover from a person who is, or has been, a supported person an amount representing the monetary value of support provided to him as a result of the error.

(3) An amount recoverable under subsection (2) may be recovered as if it were a debt due to the Secretary of State.

(4) The Secretary of State may by regulations make provision for other methods of recovery, including deductions from support provided under section 95."

As was commented in argument, it is perhaps a little surprising that the section has provided that repayments may be recoverable as though the amount were a debt rather than by way of restitution, because a claim for restitution leaves available the defence of change of position which would not ordinarily be a defence to a claim in debt. However, the point may be of no significance because the power given to the Secretary of State under section 114 is discretionary and it might be that no Secretary of State would consider using the power or be allowed to use the power in circumstances where it would be unfair to do so, such that an action at civil law for repayment would fail if it were brought in restitution. There is no need to discuss that issue in this case.

17. Schedule 8, paragraph 8 enables regulations to be made so as to provide for the suspension or discontinuance of support under section 95 "in prescribed circumstances (including circumstances in which the Secretary of State would otherwise be under a duty to provide support)".

The Asylum Support Regulations 2000

18. Regulation 4 prescribes the circumstances in which a person is excluded from section 95 of the Act. There is no need to go into the details because, as I have indicated, it is common ground that Ms Manzana fell within the class of persons excluded from support by virtue of these regulations.

19. Regulation 15 provides that if a relevant change of circumstances occurs, the supported person or a dependant of his must without delay notify the Secretary of State of that change of circumstances. There is no need to set out the list of relevant change of circumstances, but they include circumstances where a supported person receives or gains access to any money or other assets not previously declared to the Secretary of State. Regulation 15(3) provides as follows:

"If, on being notified of a change of circumstances, the Secretary of State considers that the change may be one -

(a) as a result of which asylum support should be provided for a person for whom it was not provided before, or

(b) as a result of which asylum support should no longer be provided for a person or (c) which may otherwise affect the asylum support which should be provided for a person,

he may make further enquiries of the supported person or dependant who gave the notification."

There is, however, no express provision that a change of circumstances may entitle the Secretary of State to stop providing support or vary the support otherwise provided. This is a point to which I will return.

20. Regulation 18 refers to overpayments and provides as follows:

"As well as being recoverable as mentioned in subsection (3) of section 114 of the Act, an amount recoverable under subsection (2) of that section may be recovered by deduction from asylum support."

21. Regulation 20 provides:

"(1) Asylum support for a supported person and his dependants (if any), or for one or more dependants of a supported person, may be suspended or discontinued if -

(a) the Secretary of State has reasonable grounds to suspect that the supported person or any dependant of his has failed without reasonable excuse to comply with any condition subject to which the asylum support is provided;

(b) the Secretary of State has reasonable grounds to suspect that the supported person or any dependant of his has committed an offence under Part VI of the Act;

(c) the Secretary of State has reasonable grounds to suspect that the supported person has intentionally made himself and his dependants (if any) destitute;

(d) the supported person or any dependant of his for whom asylum support is being provided ceases to reside at the authorised address; or

(e) the supported person or any dependant of his for whom asylum support is being provided is absent from the authorised address --

(i) for more than seven consecutive days and nights, or

(ii) for a total of more than 14 days and nights in any six month period,

without the permission of the Secretary of State."

22. In Hussain, Burnton J held that regulation 20 provided a complete list of the circumstances in which the Secretary of State was entitled to terminate support to destitute asylum-seekers. However, it is important to note that he was not concerned in that case to consider the position of somebody who did not meet the conditions of eligibility for support under section 95, whether because the person was not an asylum-seeker or was not destitute or was a person excluded from the section. Indeed, in interpreting the regulations as he did, he observed in paragraph 48 of his judgment that he bore in mind the context in which that part of the statutory scheme operated, namely that asylum-seekers who were eligible for support were by definition destitute. His reasoning cannot therefore be applied to somebody who was not by definition destitute, or not an asylum-seeker, or to a person excluded from the operation of the Act. Whether regulation 20 provides an exclusive exit route for the Secretary of State to cease to provide support to such persons is a very different matter.

23. On the central question in this case, in my judgment the argument of NASS is correct. If the applicant falls outside the scope of section 95, then that person obviously cannot be entitled to support under the section. Regulation 20 fits sensibly and naturally in relation to persons who satisfy the criteria of eligibility subject to the exceptions provided in the regulation.

24. Mr Giffin accepted that all the paragraphs of regulation 20 were capable of applying to people who are on the face of it entitled to support under section 95, although he submitted that where an applicant fell foul of regulation 20(1)(b) (ie because the Secretary of State had reasonable grounds to suspect them of having committed an offence under Part VI of the Act), as a matter of practicality they were extremely likely to be outside the scope of section 95. This is because the offences provided for under Part VI of the Act are largely offences of providing false information with a view to obtaining benefit or obstructing the Secretary of State's investigations into whether they are eligible for benefit; and, Mr Giffin submitted, such a person is only likely to commit such offences in support of a false claim for benefit. In practical terms that may be so, but it does not have to be so. A person may make false assertions in support of a valid claim or may be obstructive even though they would, on a full view of the facts, be entitled to some support.

25. There is, as I see it, no need for the statutory scheme to provide in terms that support need not be provided or that the Secretary of State may cease to provide support if the person does not, or has ceased to, fulfil the criteria for support, for that is merely the obverse of the requirement that the person should fulfil those criteria in order to be entitled to support. That this was the understanding of the draftsman of the scheme appears to me also to be clear from other provisions to which I have referred.

26. Take the provisions for repayment of benefits supplied as a result of an error on the part of the Secretary of State. The present case is a good illustration. The Secretary of State made an error. It was an error induced by misrepresentation by Ms Manzana, but it might not have been. If Mr Giffin's argument is right, how is one to reconcile her continued right to support, unless the Secretary of State could bring a case within regulation 20(1)(b), with the Secretary of State's right to claim repayment of the amounts paid by error? No satisfactory way of reconciling these two was advanced in argument. The obvious answer is that if the Secretary of State realises that he has been mistakenly paying somebody who is not eligible for support, he can stop making payments because the eligibility requirements of the Act are not fulfilled. Nothing more specific requires to be stated in the Act or the regulations to achieve that result. However, provision is made for the Secretary of State to be able recover overpayments as a debt or as provided for by regulation 18, because that would not be otherwise automatic.

27. Consider next the matter of a change of circumstances. Suppose that an asylum-seeker won the national lottery, and therefore ceased to be destitute within the meaning of section 95, and therefore failed to satisfy the criteria for support under the section. Such a person would be obliged to notify the Secretary of State of his change of circumstances under regulation 15, but the section does not say that the Secretary of State could stop providing support. That is assumed. Why is it assumed? The logical answer to that question is that the draftsman recognised that on the person ceasing to fulfil the criteria to bring himself or herself within section 95, the right to support would automatically come to an end, and there was therefore no need to state in the statutory scheme that the consequence of the person concerned not fulfilling the criteria for support is that they cease to be entitled to support.

28. In these circumstances, I do not find the principle in Rootkin v Kent County Council of assistance. That case, and others in that line of authority, are far removed from the present case, which has to be decided by reference to the relevant statutory scheme.

A procedural problem

29. I have referred to the fact that NASS' letter to Ms Manzana of 16 May 2002 referred to the Secretary of State having terminated her support under regulation 21(3) of the Asylum Support Regulations. That reference was unhelpful. However, it is clear from Ms Manzana's notice of appeal that she was well aware of the crucial issue of fact about when she first made her application for asylum. It does not appear to me, therefore, that the erroneous reference to regulation 21(3) caused any mischief on this occasion.

30. However, the Chief Asylum Support Adjudicator has expressed concerns about the position in which an adjudicator may find himself or herself if, after a decision letter has been sent to an applicant on certain grounds, the representative of NASS at the hearing deploys different grounds, calling into question the eligibility of the applicant for support. It does not appear to me that this problem, to the extent that it exists, is by its nature specific to cases where NASS has paid under a mistake. Potentially it is a situation which could arise in any type of case. These matters are dealt with speedily. There is always the possibility that NASS may discover at a late stage some point which had gone unnoticed before and may seek to raise it before the adjudicator.

31. I can see that this could cause difficulty, but there are ways in which an adjudicator could deal with such a situation when it arises. One way would be to adjourn the appeal. It has been pointed out that there is no specific power to adjourn an appeal, but any person sitting in a judicial capacity must have an inherent power to adjourn proceedings if justice so requires. An obvious example was given in argument of an appellant who is involved in an accident on the way to a hearing and telephones the tribunal to explain that they will not be able to attend. It would obviously be a denial of justice if the appeal were to be heard in their absence. I can see that if proceedings had to be adjourned because of a point raised late by NASS, questions might arise as to how the applicant would be supported in the meantime, and the readiness or otherwise of NASS to deal sympathetically with that problem might affect the willingness of the adjudicator to grant an adjournment. An alternative way in which an adjudicator would be entitled to proceed would be not to allow NASS to raise a fresh matter at the hearing of the appeal if to do so would cause prejudice to the appellant and to deal with the appeal purely on the material which had been properly filed in time, leaving NASS to take whatever subsequent decision it might consider right in the light of the newly-found information.

32. I have made these comments only because it has been suggested in argument that adjudicators are finding real problems of this kind in practice.

33. In this case I have a good deal of sympathy with the Chief Asylum Support Adjudicator. Although I have interpreted the effect of what Burnton J said in Hussain more narrowly than she felt free to do, I can well understand her feeling that if there were to be any distinguishing of his ruling about regulation 20, it should be done by a judge at the same level. I can see also why she was concerned that NASS should not be allowed to run an unpleaded case of fraud in relation to Ms Manzana's SAL, which she concluded had been altered, and therefore one can have sympathy with her sense that NASS ought to take the route afforded by regulation 20(1)(b). However, I have had the benefit of probably fuller argument than she had. It is in my view clear that it does not matter whether Ms Manzana committed an offence or not. On the facts as found by the adjudicator, Ms Manzana never fulfilled the criteria for support under section 95 and therefore NASS was never obliged to provide her with such support.

34. I will hear counsel on what form of order I should make.

35. MR CLARKE: My Lord, the order that I invite is as set out on page 4 of the bundle, which is an order quashing the decision of the Chief Asylum Support Adjudicator dated 28 May last year and directing that she dismiss Ms Manzana's appeal. So it is really a two-part order, first quashing and second directions to dismiss. Box 6 on page 4. My Lord, I seek no order as to costs.

36. MR JUSTICE TOULSON: As a matter of practice, do you now know whether she is actually being paid any money?

37. MR CLARKE: I still do not know, I am afraid, my Lord.

38. MR JUSTICE TOULSON: I just wonder whether this is unnecessary red tape.

39. MR CLARKE: I believe, my Lord, it is necessary. As I see it at the moment the decision that stands is that the appeal against the Secretary of State's withdrawal of payment was allowed. That certainly needs to be quashed and there certainly needs to be, effectively, a reversal of that decision by this court so that the result that will stand is appeal dismissed.

40. MR JUSTICE TOULSON: Can that be done by this court or does it go back to the adjudicator to do? If one is a first-instance judge and one gets it wrong, then the Court of Appeal simply reverses the judgment.

41. MR CLARKE: My Lord, that is right. I think here that properly speaking my Lord has to quash the decision that has been made and send it back for a further decision but with a direction that the decision must be of a particular kind, ie appeal dismissed. That is one way of doing it. The other way is to direct the adjudicator to retake the decision in accordance with my Lord's decision.

42. MR JUSTICE TOULSON: I suspect if I merely quash the decision and the matter goes back to the adjudicator it is pretty obvious what she will do. I know when one is dealing with arbitrators, there are sensitivities about this. When you set aside an arbitrator's award sometimes one particular form of order is seen as being more censorious than another about what they are doing. Are there any particular sensitivities in this area?

43. MR CLARKE: Mr Giffin, I am sure, can explain if there are. I will be content with a quashing order, my Lord, because the consequences will then follow because on that basis there is no extant decision on the appeal and it will have to be retaken and it can only go in one direction. While I am on my feet, I do not ask for any order as to costs.

44. MR GIFFIN: My Lord, I do not resist an order as my learned friend has sought. I am not aware there are any sensitivities. I do point out that under Part 54 there is a provision which was not there in the old days of the RSC: 54 rule 19(3):

"Where the court considers that there is no purpose to be served in remitting the matter to the decision-maker it may, subject to any statutory provision, take the decision itself."

Then it says in brackets "(Where a statutory power is given to a tribunal, person or other body it may be the case that the court cannot take the decision itself.)" I am not sure what the rather cryptic brackets mean.

45. MR JUSTICE TOULSON: Is it usual in this division for counsel to prepare a minute of order? If it is, you can do it and you can get it right and I will initial it. But if it is not the usual form .... (conferred with the associate) It is not usual. Then I have to do something here and now.

46. MR GIFFIN: It is simply a question of deciding whether .... My Lord, I should have thought that 54-19(3) did allow the court simply to take a decision itself in this case. But it comes to the same thing.

47. MR CLARKE: I would not dissent from that, so if my Lord wanted to say quash the decision --

48. MR JUSTICE TOULSON: Quash the decision and direct that the appeal be dismissed.

49. MR CLARKE: That is the easy way.

50. MR JUSTICE TOULSON: That is the simplest thing. It saves more paperwork. Well, encouraged by you both, I will direct that the decision be quashed and the appeal be dismissed and that is that. Thank you very much.