Szoma v Secretary of State for Work and Pensions [2005] UKHL 64 CIS 2091 2001
| Jurisdiction | UK Non-devolved |
| Judge | Mr R.J.C. Angus |
| Judgment Date | 10 October 2002 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Residence and presence conditions |
| Docket Number | CIS 2091 2001 |
| Appellant | Szoma v Secretary of State for Work and Pensions [2005] UKHL 64 |
R(IS) 2/06
(Szoma v Secretary of State for Work and Pensions [2005] UKHL 64)
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HL
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(Lord Bingham of Cornhill Lord Hutton Lord Rodger of Earlsferry Baroness Hale of Richmond Lord Brown of Eaton-under-Heywood) |
CIS/2091/2001 |
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27 October 2005 |
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Residence and presence conditions – persons subject to immigration control –exception for nationals of states which are signatories to certain treaties – meaning of “lawfully present in the United Kingdom”
The claimant was a Polish national who came to the United Kingdom in 1998 and claimed asylum. He was granted temporary admission by the immigration authorities. He claimed income support and was awarded it under the rules in force at the time. In July 2000 his claim for income support was refused under the Immigration and Asylum Act 1999 (the 1999 Act) and Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (the 2000 Regulations), in force from April 2000. Those provisions excluded from entitlement to income support persons subject to immigration control, subject to certain exceptions. The claimant contended that he fell within the exception in paragraph 4 of the Schedule to the 2000 Regulations, namely that he was a national of a state that had ratified the European Convention on Social and Medical Assistance and was lawfully present in the United Kingdom. The issue at each stage of his appeal was the meaning of “lawfully present”. The appeal tribunal allowed his appeal, holding that he was lawfully present because he was present with the knowledge and permission of the immigration authorities. The Commissioner allowed the Secretary of State’s appeal, accepting that he was bound by Kaya v Haringey London Borough Council [2001] EWCA Civ 677, [2002] HLR 1 and agreeing with that judgment in holding that a grant of temporary admission did not confer “lawful presence” because (a) section 11(1) of the Immigration Act 1971 deems a person “who has not otherwise entered the United Kingdom … not to do so as long as he is … temporarily admitted” and (b) temporary admission was merely a mechanism to prevent illegality and “lawfully present” required more than simply the absence of illegality. The Court of Appeal upheld the Commissioner’s decision, regarding itself also as bound by Kaya, which a majority also held to be correct.
Held, allowing the appeal, that:
1. whilst the decision in Kaya was correct, the reasoning was wrong: section 11’s purpose was not to safeguard the person admitted from prosecution for unlawful entry but rather to exclude him from the rights given to those granted leave to enter. Even assuming that section 11’s deemed non-entry would otherwise be capable of affecting the construction of the 1999 Act and the 2000 Regulations, it would be wrong to carry the fiction beyond its originally intended purpose so as to deem a person in fact lawfully here not to be here at all (paragraph 25);
2. there was no possible reason why paragraph 4 should be construed as requiring more by way of positive legal authorisation for someone’s presence in the United Kingdom than that they are at large here pursuant to the express written authority of an immigration officer provided for by statute (paragraph 28).
DECISION OF THE HOUSE OF LORDS
Mr Richard Drabble QC and Mr Duran Seddon (instructed by Pierce Glynn, Solicitors) appeared for the appellant.
Mr Nigel Giffin QC and Mr Parishil Patel (instructed by the Solicitor, Department for Work and Pensions) appeared for the respondent.
Opinions of the Lords of Appeal for Judgment
LORD BINGHAM OF CORNHILL:
My Lords,
1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I agree with it, and for the reasons which he gives would allow the appeal and make the order which he proposes.
LORD HUTTON:
My Lords,
2. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Brown of Eaton-under-Heywood. I agree with it and for the reasons which he gives I too would allow this appeal.
LORD RODGER OF EARLSFERRY:
My Lords,
3. I have had the advantage of considering in draft the speech that is to be delivered by my noble and learned friend, Lord Brown of Eaton-under-Heywood. I agree with it and, for the reasons which he gives, I too would allow the appeal.
BARONESS HALE OF RICHMOND:
My Lords,
4. For the reasons given in the opinion of my noble and learned friend, Lord Brown of Eaton-under-Heywood, with which I agree, I too would allow this appeal and reinstate the tribunal’s decision in favour of the appellant.
LORD BROWN OF EATON-UNDER-HEYWOOD:
My Lords,
5. Is a person temporarily admitted to the United Kingdom under the written authority of an immigration officer pursuant to paragraph 21 of Schedule 2 to the Immigration Act 1971 (the 1971 Act) “lawfully present in the United Kingdom” within the meaning of paragraph 4 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (SI 2000/363) (the 2000 Regulations)? That is the single question raised on this appeal. Before addressing it, however, let me briefly indicate the particular context in which it arises and the consequences of a decision either way.
6. The appellant is a twenty-nine year old Polish national from the Roma community who arrived in this country on 8 November 1998 and immediately claimed asylum. He was temporarily admitted and in the event remained so under successive authorisations for a total of six years until 18 November 2004 when, following a Home Office concession made in October 2003 in favour of those who had claimed asylum...
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