R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants ; R v Secretary of State for Social Security, ex parte B

JurisdictionEngland & Wales
Judgment Date21 June 1996
Judgment citation (vLex)[1996] EWCA Civ J0621-9
Docket NumberQBCOF 96/0461 and 0462/D
CourtCourt of Appeal (Civil Division)
Date21 June 1996
Secretary of State for Social Security
ex parte B and Joint Council for the Welfare of Immigrants

[1996] EWCA Civ J0621-9


Lord Justice Neill

Lord Justice Simon Brown

Lord Justice Waite

QBCOF 96/0461 and 0462/D




(Beldam LJ and Buxton J)

Royal Courts of Justice


London WC2

MR N BLAKE QC and MISS F WEBBER (Instructed by Christian Fisher, WC1A 1LY) appeared on behalf of the Appellants

MR S RICHARDS and MR S KOVATS (Instructed by Official Solicitor) appeared on behalf of the Respondents


( )


Friday, 21st June 1996


After anxious consideration and despite the powerful reasons advanced by Simon Brown L.J. I find myself unable to agree with the conclusions which he has reached in his judgment.


The appellants seek to challenge the validity of the Social Security (Persons from Abroad) Miscellaneous Amendment Regulations 1996 ( SI 1996/30) (the 1996 Regulations). The 1996 Regulations came into force on 5 February 1996. I propose to direct my attention to the effect of these regulations on the eligibility of asylum seekers to receive income support under the urgent cases provisions.


Income support was introduced by The Social Security Act 1986. The principal Act now dealing with the criteria for eligibility for income support is the Social Security (Contributions and Benefits) Act 1992 (the Act of 1992). Provisions relating to income-related benefits are contained in Part VII of the Act of 1992. Section 124 in Part VII of the Act of 1992, provides, so far as is material, as follows:

(1) A person in Great Britain is entitled to income support if —

(a) he is of or over the age of 18 or in prescribed circumstances and for a prescribed period of or over the age of 16 …;

(b) he has no income or his income does not exceed the applicable amount;

(c) he is not engaged in remunerative work and, if he is a member of a married or unmarried couple the other member is not so engaged; and

(d) except in such circumstances as may be prescribed —

(i) he is available for, and actively seeking, employment;

(ii) he is not receiving relevant education."


Certain categories of persons, however, are ineligible for income support. These categories are set out in Regulation 21(3) and Schedule 7 to the Income Support (General) Regulations 1987 (SI 1987/1967) (the 1987 Regulations). The 1987 Regulations have been amended from time to time, most recently by the 1996 Regulations. The 1987 Regulations were made under the Social Security Act 1976 and certain other enabling provisions; they now have effect as if made under inter alia the Act of 1992: see section 2(2).


Regulation 21 of the 1987 Regulations is concerned with special cases. Regulation 21 has to be read in conjunction with Schedule 7 which sets out the categories of special cases and prescribes the amount if any ("the applicable amount") which may be recovered by a person in one of these categories. A "person from abroad" is one of these categories. Regulation 21(3) contains a definition of the term "person from abroad" for the purposes of Schedule 7. It is, however, unnecessary for the purposes of this judgment to examine the definition of "person from abroad" in detail. It sufficient to say that at all material times the definition has covered persons coming to this country seeking asylum.


Part VI of the 1987 Regulations, however, contains provisions relating to claimants who fall into one of a number of categories of "urgent cases". One of these categories consists of certain persons from abroad as defined in Regulation 70(3) of the 1987 Regulations. In the past and until 1993 persons seeking asylum, though not within a defined group in Regulation 70(3), were in practice treated as "urgent cases" pending the final determination of their applications for asylum. Urgent cases payments are paid at 90% of the normal income support level.


Until the enactment of The Asylum and Immigration Appeals Act 1993 (the Act of 1993) persons seeking asylum from abroad had no special status in U.K. immigration law. The Act of 1993 was passed to make provision for persons who claimed asylum and to introduce certain specified rights of appeal under The Immigration Act 1971. In addition it was provided in section 2 of the Act of 1993 that nothing in the Immigration Rules should lay down any practice which would be contrary to the Convention relating to the Status of Refugees and the Protocol to that Convention. I shall refer to this Convention as the 1951 Convention.


Following the coming into force of the Act of 1993 certain amendments were made to the 1987 Regulations. Regulation 70 of the 1987 Regulations was amended so as to include as a special category of "person from abroad", who might be treated as an urgent case, "an asylum seeker" who was such for the purposes of the newly introduced paragraph 3(A) of Regulation 70. The new paragraph 3(A) was in these terms:

"For the purposes of this paragraph, a person —

(a) becomes an asylum seeker when he has submitted 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; and

(b) ceases to be an asylum seeker when his claim is recorded by the Secretary of State as having been finally determined or abandoned."


In 1994 the 1987 Regulations were further amended so that in paragraph 21(3), after the definition of "person from abroad" there was inserted the following definition:

"'person from abroad' also means a claimant who is not habitually resident in the United Kingdom, the Republic of Ireland, the Channel Islands or the Isle of Man, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is —

(a) …

(b) a refugee within the definition in article 1 of the [1951] Convention …; or

(c) a person who has been granted exceptional leave to remain in the United Kingdom by the Secretary of State."


This amendment was introduced by paragraph 4 of the Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1994 (1994/1807).


In broad terms the position at the end of 1995 was as follows:


(1) Persons from abroad, which included asylum seekers, were treated as special cases under the 1987 Regulations.


(2) Subject to exceptions, persons from abroad were not entitled to income support.


(3) Asylum seekers, however, as specified in paragraph 3A of Regulation 70 of the 1987 Regulations, were treated as "urgent cases". In the period during which an asylum seeker was treated as an urgent case he was entitled to receive 90% of the normal income support benefit until his claim for asylum had been finally determined.


(4) If an asylum seeker was successful or was granted exceptional leave to remain he would then become entitled to income support in the usual way. He would no longer be treated as a person from abroad.


(5) If, however, his claim was finally rejected or abandoned he was no longer treated as an urgent case and any right to any benefit as an urgent case came to an end.


It was against this legislative background that the 1996 Regulations were introduced. I turn next to the factual background.


It will be convenient to refer first to the statement made by the Secretary of State to the Social Security Advisory Committee in accordance with section 174(2) of the Social Security Administration Act 1992, in which the purpose of the 1996 Regulations was explained as follows:

"The purpose of these Regulations—together with measures in the Asylum and Immigration Bill announced by the Home Secretary since the Regulations referred to the Committee—is:

To ensure that the U.K. remains a haven for those genuinely fleeing from persecution, whilst discouraging unfounded applications from those who are actually economic migrants. The growing number of these unfounded applications prevents speedy processing of applications from those who genuinely merit asylum and imposes an unjustifiable cost on the British taxpayer.

The Government recognises that genuine refugees do not come to the U.K. to obtain social security benefits but to escape persecution. Their rights to asylum will not be curtailed in any way by these regulations or the Bill. And those who make their true intentions clear when they arrive in this country, and seek asylum at the port of entry will continue to have access to benefits while their claims are considered by the Home Office. However, well over 90% of those claiming asylum are eventually found not to be genuine refugees. Most of these applicants are economic migrants. The number of such applicants coming here is influenced by the ready availability of benefits. British benefits compare favourably with average wages in many countries from which asylum seekers come. Other European countries offer more limited benefits, less opportunity to work and have tightened up the procedures applying to asylum seekers. As a result the number of asylum claims in Western Europe as a whole has fallen by over a third since 1993 while in the same period the number of claims in Britain has doubled. So the proportion of all those claiming asylum in Europe who came to Britain has risen from 4% to 13% over ten years. Consequently, the total cost of social security benefits for asylum seekers already exceeds £200m. per year.


The proposed regulations mean that people claiming asylum at the port of entry will continue to be eligible for benefits...

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