CIS 2702 2000
| Jurisdiction | UK Non-devolved |
| Judge | Mr R.J.C. Angus |
| Judgment Date | 10 October 2002 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CIS 2702 2000 |
| Subject Matter | Income support and state pension credit |
1. The decision of the Income Support Appeal Tribunal dated 19 January 2000 is not erroneous in law.
2. 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 Urgent Case Payments of Income Support because she is a person from abroad claiming political asylum who did not make a claim for asylum on arrival in the United Kingdom.
3. The claimant is a national of Somali. The background to her case is conveniently explained by the following extract from the statement of the tribunal’s findings in fact and reasons for its decision:-
“ 1. [The claimant] arrived at Gatwick Airport on a flight from Yemen at 10.30 pm on 29 August 1999. This was the date given in the statement of [the claimant] and given to the Tribunal by Mr Khubber, [the claimant’s representative at the hearing]. The date of 30 August 1999 referred to in the letter of appeal and submission were incorrect.
2. The Tribunal accepted the evidence given by [the claimant] as follows:-
(a) [The claimant] left Somalia when the civil war began and went to Yemen. She was smuggled out by boat from Somalia. When she left Somalia it was with the intention of coming to the United Kingdom. She stayed with her cousin in Yemen who raised the money for her to come to the United Kingdom. She was in Yemen for 2 years as it took this length of time for the money to be raised. She had her first contact with the agent in Yemen and he arranged for a false passport.
(b) [The claimant]came to the United Kingdom with a view to applying for asylum. She asked the agent when she arrived to apply for asylum then and there but he refused and told her to apply in the country. He was scared about the false papers and in particular the false passport.
The tribunal noted that [the claimant’s] evidence was at points at odds with the statement filed on her behalf but preferred her oral testimony given when represented and with the assistance of an interpreter.
3. The submission filed on [the claimant’s] behalf and the letter from [the claimant’s] representative at North Islington Law Centre dated 4 September 1999 both state that [the claimant] rang her sister from the airport and took her sister’s address and the agent then called a taxi for her. This is inconsistent with [the claimant’s] statement. Unfortunately, [the claimant] was not asked to give evidence on this point but the tribunal accepted the account given in the submission and the letter as the more probable.
4. The Tribunal accepted that as described in [the claimant’s] statement [the claimant] arrived at her sister’s house at midnight. She was then advised by her sister that she needed to make an asylum application. As 30 August 1999 was a Bank Holiday they went to the Home Office on 31 August 1999 to make one.
The Department’s submission was that on [the claimant’s] account she had arrived in the United Kingdom on 30 August 1999 and not claimed asylum until 31 August 1999. The submission went on to state at paragraph 4 that there was no evidence that [the claimant] had been prevented from claiming asylum to the Immigration Officer at the point of arrrival and that they relied on the Commissioner’s decision CIS/143/1997 to support their contention that asylum had not been claimed on arrival.”.
4. It is not disputed that the claimant is a person from abroad as defined in paragraph (3) of regulation 21 of the Income Support (General) Regulations 1987 and that by virtue of paragraph (1) of that regulation as read with Schedule 7 to the Regulations she is a person whose Income Support applicable amount is nil with the consequence that she is not entitled to Income Support. However, if the claimant is an asylum seeker as defined by paragraph (3A) of regulation 70 of the General Regulations she is entitled to Urgent Case Payments calculated in accordance with Part VI of the Regulations. Paragraph (3A), 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 the 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 Mann and the Republic of Ireland collectively
5. The tribunal dismissed the claimant’s appeal on the grounds that she had not claimed asylum “on her arrival” in the United Kingdom. According to the statement of the tribunal’s reasons for decision the tribunal would have followed the Commissioner’s decision CIS/4117/1997 and accepted that the claim to asylum made on 31 August 1999 at Lunar House, Croydon was made on arrival for the purposes of regulation 70(3A) of the General Regulations if it had been able to find in fact that it had not been within the claimant’s power to claim asylum at Immigration Control in the airport: but in the tribunal’s view the claimant’s was the classic case of the CIS/4117/1997 type in which the claimant had put herself in the hands of an agent who had conducted her through Immigration Control without revealing that she was seeking asylum. In the absence of any evidence of duress the tribunal concluded that the claimant had not made her application for asylum at the earliest practicable opportunity when she arrived in this country and did not come within the definition of asylum seeker in regulation 70(3A).
6. I heard this appeal on 24 October 2001. The claimant did not attend the hearing but was represented by Mr R. Khubber of Counsel, instructed by the Free Representation Unit. 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/43/2000 and which raised similar legal issues. The claimant in that case did not attend but was represented by Mr D. Seddon of Counsel, instructed by Messrs. Pearce Glynn, Solicitors, London. Mr Chang represented the Secretary of State in that case also. A copy of my decision on file CIS/43/2000 is annexed to this decision. My decision in this case has been considerably delayed for the reasons given in paragraph 8 of my decision on the other case.
7. Mr Khubber adopted Mr Seddon’s arguments for a broad interpretation of regulation 70(3A) but subject to the reservation that Mr Khubber’s case would not be assisted by my decision on CIS/2719/1997. That decision is that, to bring a claimant within the paragraph (3A) definition, the claim for asylum must be made before the claimant leaves the port of arrival. Mr Seddon’s arguments are set out in paragraphs 10 to 16 of my decision on CIS/43/2000. Mr Khubber said that his essential point was that the ratio of the Commissioners decisions is that there has to be a sensible practical approach to the application of regulation 70(3A) to a claimant. It is a question of fact and degree in the circumstances of the claimant. Failure to adopt that approach gave the denial of benefit which is authorised by regulation 21 of the General Regulations as read with regulation 70(3A) and Schedule 7 to the Regulations a disproportionate effect. The port perimeter test applied in CIS/2719/97 was too narrow. He argued that the Commissioner had to consider several factors. Those were the need for compliance with Article 31 of the Geneva Convention on the status of refugees, that the adjudication officers’ guide enjoins a flexible approach to what constitutes a claim for asylum on arrival, the need to have regard to the terms of the Human Rights Act 1998 and the Government’s obligations under Articles 13 and 14 of the European Convention on Human Rights.
8. Mr Khubber said that the facts of his client’s case were that she had arrived at Gatwick Airport at 10.30 pm on a Sunday under the control of an agent. The Agent left her at the airport and she was collected by her sister who had been summoned by a telephone call. The following Monday was a Bank Holiday. On Tuesday, on the advice of a Law Centre, the claimant went to Lunar House. However, it was to be noted, as the tribunal chairman had recorded, that the claimant did not think that asylum was being claimed as she was going through Immigration Control. Her agent had told her to apply in the country and had refused her request to apply at Immigration Control. The tribunal had accepted that the claimant was under control of the agent but regarded it as a classic case in which the agent’s control should not have prevented the claimant from making her application at Immigration Control. The statement of the tribunal’s reasons refers to Commissioner Rowland’s decision on...
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