Mohammed Aziz Shah v Secretary of State for Social Security
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,Lady Justice Hale,LADY JUSTICE HALE |
| Judgment Date | 20 February 2002 |
| Neutral Citation | [2002] EWCA Civ 285 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 February 2002 |
[2002] EWCA Civ 285
IN THE SUPREME COURT OF JUDICATURE A1/2001/1079
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM A SOCIAL SECURITY COMMISSIONER
(MR. COMMISSIONER JACOBS)
Royal Courts of Justice
Strand
London WC2
Lord Justice Pill
Lord Justice Mummery and
Lady Justice Hale
MR. A. NICOL Q.C. and SIMON COX (instructed by Messrs. Eric Bowes & Co., Solihull B90 3AY) appeared on behalf of the Claimant.
MISS N. LIEVEN (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
( )
Wednesday, 20th February 2002
Lady Justice Hale will give the first judgment.
This is an appeal from a decision of Mr. Social Security Commissioner Jacobs which was communicated by a letter dated 3rd January 2001. The Commissioner himself gave permission to appeal because of the complexity of the issues. These concern the effect of an undertaking given by an immigrant's sponsor to maintain the immigrant upon the immigrant's entitlement to income support, in particular after the immigrant has left the country and later returned. The difficulty arises because of changes in policy and regulations since the relevant undertaking was given in this case. Those changes are therefore part of the background history to these proceedings.
The appellant is a Pakistani citizen who was born in 1921 and so is now over 80 years old. He was given leave to enter this country as a visitor in February 1993. On 6th December 1993, his nephew, Hameed Hussain Shah, signed a sponsor's undertaking to be responsible for his maintenance and accommodation. I shall return to the precise wording of that undertaking in due course.
On 16th June 1994, the appellant was given indefinite leave to remain. The basis of that indefinite leave to remain is contained in paragraphs 139, 56 and 52 of HC 251, the Statement of Changes in Immigration Rules which was then in force. At that date the undertaking, in itself, had no effect upon the appellant's entitlement to income support or other means-tested benefits. If he did claim such support, a sponsor who had persistently refused or neglected to maintain him would be guilty of a criminal offence under section 105 of the Social Security Administration Act 1992 and the monies paid might be recouped from the sponsor under section 106 of that Act.
The appellant left the United Kingdom on 1st January 1995. The Government then decided to change the policy. The Social Security Commissioner quoted from paragraphs 36 and 39 of the memorandum submitted by the Government to the Social Security Advisory Committee to explain their original draft:
"36. The Government proposes to address the situation where people who are granted indefinite leave to remain in this country on the basis that they will be maintained and accommodated by a sponsor become a charge on the benefit system. The Government does not believe that the taxpayer should be responsible for providing support which should be provided by sponsors.
…
39. The Government proposes that a barrier to claiming benefits will therefore be imposed. People covered by sponsorship agreements will henceforth be excluded from entitlement to income-related and non-contributory benefits."
This was originally planned to be an absolute ban until the sponsor died. It was, however, modified in response to representations from the Social Security Advisory Committee so that it would last only for five years. The Social Security Commissioner quoted the Government's response to the Committee as follows:
"46. The Government recognises that the longer the time since a sponsorship agreement was made the harder in practice it is to hold sponsors to their obligation.
47. For these reasons the Government have decided that if a sponsorship agreement breaks down after a period from five years from the date when the arrangement was made, the sponsored immigrant should then be entitled to the full range of benefits so long as they [sic] fulfil the appropriate entitlement conditions. This concession will be made regardless of whether the sponsored immigrant eventually applies for naturalisation in the UK."
The outcome of that policy change was the Social Security (Persons From Abroad) (Miscellaneous Amendments) Regulations 1996, made under various enabling powers of the social security legislation. Two points are relevant to these proceedings. First, regulation 8 amended the Income Support (General) Regulations 1987, regulation 21(3), to add another category to the definition of "persons from abroad". The effect was to remove their entitlement to income support. Income support is payable, roughly, where a person's income, as defined in the regulations, is less than his or her requirements as prescribed in the regulations. By schedule 7 to the 1987 regulations, paragraph 17, the requirements of certain people, including single people, who fall within the definition of "persons from abroad" are prescribed as nil.
The additional category of such persons introduced by regulation 8 is in regulation 21(3)(i). (There was also a paragraph (j) which does not concern us in this case.) Paragraph (i) covers a person who:
"…has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking given by another person or persons in writing in pursuance of immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation; and he has not been resident in the United Kingdom for a period of at least 5 years beginning from the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later…"
Secondly, regulation 12 of the amending regulations contained transitional provisions, including, in regulation 12(2), a saving for certain people who had already claimed or were in receipt of benefit. The Commissioner held that this saving did not apply to this appellant, and grounds of appeal in relation to that have not been pursued in the light of the decision of the House of Lords in M (A Minor) v. Secretary of State for Social Security [2001] 1 WLR 1453.
Those amendment regulations came into force or 5th February 1996. Soon after that, on 8th March 1996, the appellant returned to the United Kingdom. He was given leave to enter as a returning resident. By this time, HC 251 had been replaced by the Immigration Rules, HC 395, although they were to much the same effect. Paragraph 18 provides for the conditions under which returning residents may be given leave to enter, and I will return to those later in this judgment.
The appellant left again in April 1997 and returned in July 1997. On return he was again given leave to enter under paragraph 18. Shortly after that, he made the first of three claims for income support which are the subject of these proceedings. They were all rejected in June 1998, on the ground that he fell within regulation 21(3)(i) and five years had not yet elapsed. His appeal to the Social Security Appeal Tribunal was dismissed, and Mr. Social Security Commissioner Jacobs dismissed his further appeal in December 2000.
Meanwhile, on 30th June 1999, the Secretary of State accepted that he was now entitled to income support as five years had elapsed, in fact, since the date that leave was first given on the basis of the undertaking. So the actual claim with which we are concerned relates to the two years between the claim in July 1997 and the grant of income support on 30th June 1999. There will be many other people similarly affected, although they will be diminishing in number because of changes made to the law by the Immigration and Asylum Act 1999.
There are three issues on this appeal: first, whether the undertaking given by the nephew covered the later periods of leave to enter as a returning resident; second, whether that leave was granted "upon an undertaking" within the meaning of regulation 21(3)(i); and third, whether the 1996 amended regulations were validly made—that is, within the powers granted by the enabling legislation. The first two issues are to some extent inter-related in that they depend upon very similar arguments, although conceptually they are quite distinct.
The scope of the undertaking
Mr. Nicol Q.C., on behalf of the appellant, argues that the undertaking must be construed in the context of the scheme of immigration law as it existed at the time. The Immigration Act 1971, in section 3(1)(b), provides that people not otherwise entitled to enter or remain here may be given leave either to enter or to remain, either for a limited or an indefinite period. Section 3(1)(c) provides that limited but not indefinite leave may be granted subject to conditions. Section 3(3) provides that limited but not indefinite leave may be varied and that any conditions continue to apply during a period of absence from the United Kingdom. Section 3(4), which for the purpose of his argument is the crucial one, provides that a person's leave to enter or remain in the United Kingdom shall lapse on his going to a country outside the common travel area. Hence, the argument is that, when the applicant left the United Kingdom in 1995, his initial indefinite leave to remain lapsed and, when he returned in 1996, he was granted a new leave to enter; and the same happened when he left again in 1997 and returned later that year. The Social Security Commissioner accepted that argument (paragraph 40 of his decision) and rejected an argument that leave to enter as a returning resident is not a fresh grant of leave. So thus far there is...
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