R v Secretary of State for the Home Department, ex parte Salem

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date06 March 1998
Judgment citation (vLex)[1998] EWCA Civ J0306-6
Date06 March 1998

[1998] EWCA Civ J0306-6






Royal Courts of Justice


London W2A 2LL


Lord Justice Hobhouse

Lord Justice Brooke

Sir John Balcombe

Fathi Saleh Salem
Secretary of State for the Home Department

MR NICHOLAS BLAKE QC and MISS STEPHANIE HARRISON (instructed by Messrs Tyndallwoods, Birmingham) appeared on behalf of the Applicant.

MR NEIL GARNHAM (instructed by The Treasury Solicitor) appeared on behalf of the Respondent.


l. Mr Salem is moving the Court of Appeal for the Judicial Review of a decision of the Secretary of State for the Home Department dated 5th September 1997 to notify the Department of Social Security that his claim to asylum had been recorded as determined. This motion is being heard exceptionally by the Court of Appeal without its first having been heard by the Divisional Court pursuant to an order of the Court of Appeal dated 19th December 1997 which was made at the same time as that Court gave him leave to apply, leave having earlier been refused by Mr Justice Tucker in the Divisional Court.


2. The question raised by this appeal is the status of Mr Salem as an asylum-seeker for the purposes of the Social Security legislation and his right to receive benefits. The historical background to this scheme of legislation has been helpfully summarised in the judgment of Neill LJ in R v Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants [1997] l W.L.R. 275. Broadly, those who are "persons from abroad" as defined in Regulation 2l of the Income Support (General) Regulations 1987 are not entitled to receive benefit. Asylum-seekers come within the definition of such persons. But there is a further category of those who are entitled to be treated as "Urgent Cases" under Regulation 70 which authorizes the payment of 90% benefits to, among others, those who have arrived from abroad and have claimed asylum at the port of entry. This scheme of exclusion from and qualified inclusion in the right to benefit was the subject of the Joint Council case to which I have referred. An attack on the vires of the Regulations was successful but the Government by provisions included in s.ll and the First Schedule of the Asylum and Immigration Act 1996 took powers which effectively validated the previous Regulations and authorized the making of Regulations effectively in the same terms. We are not concerned in the present case with any of the transitional provisions since the events we have to consider all occurred during the calendar year 1997. We have to determine this case upon the basis of the legislation and Regulations which have come to effect following the passing of the 1996 Act. No question of the vires of the current Regulations arises.


3. As will appear, the questions in this case arise from the inter-relationship between the obligations of the Secretary of State under the Asylum Convention (as recognized by the Immigration Rules and the Asylum and Immigration Appeals Act 1993), the grant of leave to enter by the Immigration Authorities and the right to receive benefits under the Social Security legislation. Nothing in the present case turns upon the distinction between one benefit and another. The overall purpose of the 1996 legislation is to allow a person who is seeking asylum from the Secretary of State to receive benefit provided he has made his application at the port of entry. Once he has been refused asylum by the Secretary of State his right to benefit ceases. If he should subsequently invoke the appeal procedures provided under the Asylum and Immigration Appeals Act 1993, his right to benefit will be reinstated retrospectively. Whilst there is no wish to prejudice meritorious asylum seekers, the necessity of excluding those whose claims lack merit (which is the vast majority of applicants) is recognized. But there are a number of practical or schematic difficulties. The first is that the duty of the Secretary of State under the Convention is not to return a refugee who comes within the terms of the Convention to an unsafe country. Thus his obligation continues up until the time that the asylum seeker is removed from this country or, his status as a refugee having been recognized or for some exceptional reason, he is given leave to enter or remain in this country. This continuing obligation of the Secretary of State is distinct from the obligations of the Immigration Officers under the Immigration Rules though of course a grant of asylum by the Secretary of State will lead to the admission, or non-exclusion, of the refugee. Further, the appeal procedure is triggered by the immigration decision not by the asylum decision although the point in issue is the immigrant's right to asylum. (s.8 of the 1993 Act) However this scheme does enable the correct question to be addressed by the Special Adjudicator, namely, whether the exclusion or removal of the immigrant would contravene the Convention.


4. The question of the right to receive benefits, because it only relates to part of the process, cuts across this scheme. It contemplates that the Secretary of State will have been able to and will have discharged his Convention obligation towards the immigrant at some earlier stage. This assumption follows the practice of the Home Department and is reflected in the Immigration Rules. Thus, when a person arrives at a port of entry and makes a claim for asylum he makes it to the Immigration Officer at the port. The Immigration Officer interviews the immigrant and then refers the application for asylum to the Asylum Directorate at the Home Department which acts for the Secretary of State in respect of asylum applications. (Immigration Rules 328�9 and 334�7) The Immigration Officer meanwhile will have made some interim provision, normally for the immigrant to be detained or granted temporary admission. The asylum application is then considered by the Asylum Directorate carrying out such further investigation as it thinks appropriate and entertaining further representations and evidence from the applicant. (Rules 340�5) Interviews may take place. These will normally be conducted at the port of entry, or at some other convenient port, by Immigration Officers. After this process has been completed, which may take a relatively short or long time, the appropriate person in the Asylum Directorate decides whether or not asylum should be granted and returns the file to the Immigration Officers at the port of entry together with, in the case of refusal, a letter stating the reasons for the refusal. (Rule 348) The Immigration Officers will then at a further interview communicate that decision to the immigrant and, ordinarily, but not necessarily, give him their decision upon whether he should be given leave to enter. (Rules 33l and 333) There may in some cases be other grounds upon which leave to enter can be given and a proportion of unsuccessful applicants for asylum are given exceptional leave to remain. Following an adverse decision communicated in this way which results in refusal of leave to enter, the immigrant can exercise his rights of appeal to a Special Adjudicator.


5. The scheme therefore is one which keeps the function of the assessment of the asylum application separate from the grant or refusal of leave to enter although the relevance of the one to the other may of course be critical and the investigatory processes may involve both Immigration Officers and persons at the Directorate. Similarly, both aspects of the process lead to a single terminus, the grant or refusal of leave to enter communicated to the immigrant. Section 6 of the Asylum and Immigration Appeals Act provides that:

"During the period beginning when the person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom."


(See also Rule 329.) This also fits in with the definition of "claim for asylum" in s.l of that Act as being a claim 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.


6. Section ll of the Asylum and Immigration Act 1996 authorised the making of Regulations to "exclude any person who has made a claim for asylum from entitlement" to benefits and that where a person who is so excluded is "subsequently recorded by the Secretary of State as a refugee within the meaning of the Convention he may retrospectively be entitled to claim benefits "to which he would have been entitled had he been recorded as a refugee immediately after he made the claim for asylum". It will be noticed that this section therefore uses the word "recorded". The Regulations which were made or continued pursuant to the power granted by s.ll are to be found in the amended version of the Income Support (General) Regulations 1987. These are the Regulations which are directly relevant to the present case. Under the heading "Urgent Cases" in Regulation 70(3A) there is a revised definition of asylum-seeker.

"(3A) 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 a 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; or

(aa) becomes, while present...

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