Shah v. Secretary of State for Social Security [2002] EWCA Civ 285 CIS 6608 1999
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 20 February 2002 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Residence and presence conditions |
| Docket Number | CIS 6608 1999 |
| Appellant | Shah v. Secretary of State for Social Security [2002] EWCA Civ 285 |
R(IS) 2/02
(Shah v. Secretary of State for Social Security [2002] EWCA Civ 285)
Mr. E. Jacobs CIS/6608/1999
18.12.00
CA (Pill and Mummery LJJ, and Hale LJ)
20.2.02
Applicable amount – person from abroad – whether sponsor’s undertaking relates to grant of leave on re-entry to the United Kingdom – whether Social Security (Persons From Abroad) (Miscellaneous Amendments) Regulations 1996 ultra vires
The claimant was given leave to enter the United Kingdom as a visitor in 1993. His nephew subsequently signed a sponsor’s undertaking to be responsible for the claimant’s maintenance and accommodation. The claimant was given indefinite leave to remain in 1994. He left the United Kingdom in 1995. In 1996 the Social Security (Persons From Abroad) (Miscellaneous Amendments) Regulations 1996 implemented a change of Government policy aimed at excluding people covered by sponsorship undertakings from income support. This was achieved by prescibing the applicable amount for “persons from abroad” as nil for a period of 5 years. Soon after that the claimant returned to the United Kingdom and was given leave to enter as a returning resident. He also left for a short time in 1997, and again returned and was given leave to enter under the same terms. He then made the first of three claims for income support. They were all rejected by an adjudication officer on the basis that the 5-year period had not elapsed, and the claimant’s appeal to a tribunal was dismissed. The claimant appealed to the Commissioner, who decided inter alia that leave granted to enter the United Kingdom under paragraph 18 of the Immigration Rules is fresh leave, reflecting the fact that the immigrant has previously been granted indefinite leave to enter or remain in the United Kingdom. The sponsor’s undertaking was a continuous one, and it applied to leave granted under paragraph 18. The Commissioner also decided that the amendments made by the 1996 Regulations were authorised by sections 135(1) and (2), and 175(3)(a) of the Social Security Contributions and Benefits Act 1992. The claimant appealed to the Court of Appeal
Held, dismissing the appeal, that
- this particular undertaking is offered by the sponsor for the benefit of the immigrant and it should be construed in the light of the immigration scheme as a whole
- the Commissioner was right to reject a strict approach to construction when deciding that the undertaking was a continuing one, which related to grant of leave on the claimant’s subsequent return to the United Kingdom;
- the the use of the word ‘upon an undertaking’ in regulation 21(3)(i) of the Income Support (General) Regulations 1987 is to be construed so that the leave granted on the claimant’s return to the United Kingdom was on the basis of the undertaking;
- section 135(2) of the Social Security Contributions and Benefits Act 1992 specifically permits an applicable amount of nil to be prescribed, so it is not arguable that the use of that enabling power in the Social Security (Persons From Abroad) (Miscellaneous Amendments) Regulations 1996 renders those Regulations ultra vires.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
Decisions:
CIS/1077/1999
1. My decision is as follows. It is given under section 14(8)(a)(i) of the Social Security Act 1998.
1.1 The decision of the Whittington House social security appeal tribunal held on 13 March 1998 is erroneous in point of law.
1.2 Accordingly, I set it aside and, as I can do so without making fresh or further findings of fact, I give the decision that the tribunal should have given.
1.3 My decision is to confirm the decision of the adjudication officer that was the subject of the appeal to the social security appeal tribunal.
CIS/6608/1999
1.4 My decision is that the decision of the Birmingham social security appeal tribunal held on 30 September 1998 is not erroneous in point of law.
Reservation of determination of entitlement to damages for breach of Convention right under Article 6(1)
1.5 With the agreement of the parties to both appeals, I reserve to myself or to another Commissioner the issue of whether the claimants are entitled to damages for breach of their Convention right to a fair hearing under Article 6(1) by reason of the delay in the handling of their cases or otherwise, if a Commissioner is held to have jurisdiction over this issue.
The issues arising for decision
- These appeals raise four sets of issues. All concern the limitations imposed by immigration law and social security law on access by immigrants to public funds. They are dealt with in separate appendices:
Appendix A Immigration law from paragraph 29
Appendix B Transitional protection from paragraph 86
Appendix C Validity from paragraph 128
Appendix D Human rights from paragraph 152.
The facts of the cases
CIS/1077/1999
- In this case, the claimant entered the United Kingdom in November 1993.
- He was given limited leave. Conditions could have been imposed on the limited leave under the authority of section 3(1) of the Immigration Act 1971. However, I do not know what conditions, if any, were imposed.
- Later, on 21 June 1994, the claimant was granted indefinite leave to remain in the United Kingdom by the Secretary of State acting through the Immigration and Nationality Directorate of the Home Office. That leave was not, and could not be, subject to any condition. There is no statutory authority for attaching conditions to indefinite leave; section 3(1) of the Immigration Act applies only to limited leave. The claimant’s daughter was asked to give, and on 19 May 1994 gave, an undertaking in pursuance of the Immigration Rules.
- The relevant parts of the undertaking by the claimant’s daughter are paragraphs 2 and 3. They are in the then standard form and read:
‘2. I [the sponsor] hereby undertake that if [the claimant] is granted leave to enter or remain in the United Kingdom I shall be responsible for his/her maintenance and accommodation in the United Kingdom throughout the period of that leave and any variation of it.
‘3. I understand that this undertaking shall be made available to the Department of Health and Social Security in the United Kingdom who may take appropriate steps to recover from me the cost of any public funds paid to or in respect of the person who is the subject of this undertaking.’
Paragraph 3 refers to the powers of prosecution and recovery under sections 105 and 106 of the Social Security Administration Act 1992.
- The claimant was awarded income support from 5 May 1995. It was paid until 17 July 1997, despite a period of absence in Turkey. The award was terminated on review with effect from 20 December 1996.
- The claimant made a fresh claim for income support on 11 August 1997. His sponsor had become unemployed and unable to maintain him. The adjudication officer decided that the claimant was a person from abroad, with the result that the applicable amount used to calculate his entitlement to income support was nil. The result was that he was not entitled to income support and the claim was refused.
- The claimant appealed against that decision, but the tribunal confirmed the refusal of the claim.
- At the first oral hearing, Ms. Bergmann conceded on behalf of the Secretary of State that the decision of the tribunal was erroneous in law in that (a) it had wrongly decided that the claimant’s indefinite leave to remain had not lapsed when he left the common travel area and (b) it had not properly considered the definition of ‘person from abroad’. The oral hearings of this appeal were conducted on the basis that the decision was agreed to be wrong in law and the argument concentrated on how the law should have been interpreted and applied.
- The claimant has now been awarded income support. That award takes place from the earliest date to which the claimant would be entitled under my decision, and possibly from an earlier date. A list of his absences from the United Kingdom is at page 105.
CIS/6608/1999
- In this case, the claimant entered the United Kingdom in February 1993...
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