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

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date11 February 1999
Judgment citation (vLex)[1999] UKHL J0211-3
Date11 February 1999

[1999] UKHL J0211-3


Lord Slynn of Hadley

Lord Mackay of lashfern

Lord Jauncey of Tullichettle

Lord Steyn

Lord Clyde

Secretary of State for the Home Department
Ex Parte Salem (A.P.)

My Lords,


Section 123 of the Social Security Contributions and Benefits Act 1992 (formerly section 20 of the Social Security Act 1986) provides for certain "income-related benefits" including "income support" and "housing benefit." Different conditions of entitlement are prescribed for each, including for the former that a person is "in Great Britain." Regulations may be made pursuant to Subsection 137(2)(a) "as to circumstances in which a person is to be treated as being or not being in Great Britain."


The Income Support (General) Regulations 1987 (made pursuant to the Act of 1986) and continued in force ( S.I. 1987 No. 1967) as amended provide in Regulation 21 and Schedule 7 for the applicable amounts in special cases including that of a "person from abroad." In paragraph (3)(j) of Regulation 21 a person otherwise in paragraph 3 (a)-(i) who submits a claim for asylum which is not finally determined is a person from abroad. Special arrangements are made in urgent cases by Regulation 70 of the 1987 Regulations including those for certain asylum seekers.


By Regulation 2 of the Income Support (General) Amendment No. 3 Regulations 1993, there is inserted in Regulation 70:

"(3A)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 [Geneva] 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."


Regulation 70(3A)(b) was amended by the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 (S.I. 1996 No. 30) to read:

"(b) ceases to be an asylum seeker:

(i)in the case of a claim which, on or after 5 February 1996, is recorded by the Secretary of State as having been determined (other than on appeal) or abandoned, on the date on which it is so recorded, or

(ii)in the case of a claim for asylum which is recorded as determined before 5 February 1996…."


By Regulation 3 of the Income Support and Social Security (Claims and Payments) (Miscellaneous Amendments) Regulations 1996 (S.I. 1996 No. 2431) it is provided:

"Treatment of Refugees

21ZA–(1)Where a person has submitted a claim for asylum and is notified that he has been recorded by the Secretary of State as a refugee within the definition in Article 1 of the [Geneva Convention on Refugees 1951 as extended] he shall cease to be a person from abroad for the purposes of Regulation 21 (Special Cases) and Schedule 7 (Applicable Amounts in Special Cases) from the date he is so recorded."


The appellant is a Libyan national who arrived in the United Kingdom on 17 April 1997 and claimed asylum pursuant to Regulation 70(3A)(a) of the 1987 Regulations. He was granted temporary admission and on 17 April 1997 was awarded income support and related benefits in accordance with that Regulation.


On 7 May 1997, the Home Office recorded on an internal file, without telling the appellant, that: "Asylum has been refused on 7 May 1997 and the claim is hereby recorded as having been determined."


Following a request to make further representations, arrangements were made for an interview and the memorandum of 7 May was re-dated 10 July 1997. On 18 August 1997, the Immigration Service informed the appellant's solicitors that the representations were being considered and on a date before 5 September 1997 the Home Office informed the Benefits Agency that the appellant's claim had been recorded as determined within the meaning of Regulation 70(3A)(b). Benefit was no longer paid. On 12 September 1997, the Home Office asked the appellant's solicitors if further evidence was available "in order for the Secretary of State for the Home Department to fully consider his asylum application".


On 5 November 1997 the appellant was told by the Benefits Agency that his income support had been stopped because the Home Office had informed them that he had been refused asylum. Between August 1997 and March 1998 further representations were made and the appellant was interviewed on 15 January 1998. On 15 May 1998, the Immigration and Nationality Directorate informed the appellant that the Secretary of State had refused the appellant's request for political asylum.


Tucker J. having refused leave to move for judicial review, the application was renewed before the Court of Appeal [1999] 2 W.L.R. 1 which decided to hear the substantive application. The Court of Appeal by a majority (Brooke L.J. and Sir John Balcombe, Hobhouse L.J. dissenting) dismissed the application on 6 March 1998.


On 5 January 1999 the Treasury Solicitor informed the Judicial Office of your Lordships' House that on 12 December 1998, following an appeal to a special adjudicator, the appellant was granted refugee status and that Regulation 21ZA of the 1987 Regulations operated, so that back-payment of benefits (from the date when they ceased to be paid until the date when refugee status was granted) fell to be paid at the urgent case rate applicable to a "person from abroad" under Regulations 70 and 71. They contended that the appeal was accordingly academic. The appellant replied that even though income support would be paid, there remained an issue as to whether housing benefit (which ceased to be paid between December 1997 and July 1998) would be paid by the relevant local authority. It was not clear that he would succeed, not having pursued a claim for housing benefit at that stage, and the matter ought to be dealt with on the present appeal, even though the claim had not been made to the local authority and the Housing Benefit Review Board. The appellant also contended that costs might be an issue and that his reputation had suffered from comments in the Court of Appeal and the use of his case in a White Paper on Asylum and Immigration published in July 1998 (Fairer, Faster and...

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