R (Nadezda Anufrijeva) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL,LORD STEYN,LORD HOFFMANN,LORD MILLETT,LORD SCOTT OF FOSCOTE
Judgment Date26 Jun 2003
Neutral Citation[2003] UKHL 36

[2003] UKHL 36

HOUSE OF LORDS

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Hoffmann

Lord Millett

Lord Scott of Foscote

Regina
and
Secretary of State for the Home Department

and another

(Respondents)
ex parte Anufrijeva (FC)
(Appellant)
LORD BINGHAM OF CORNHILL

My Lords,

1

The issue in this appeal is whether income support should have been paid to Nadezda Anufrijeva (the appellant) as an asylum seeker between 10 December 1999 and 25 April 2000. The answer depends on whether, on or before the earlier of those dates, she had ceased to be an asylum seeker. That in turn depends on whether, on or before the earlier of the dates, her claim for asylum had been "recorded by the Secretary of State as having been determined (other than on appeal)" within the meaning of regulation 70(3A)(b)(i) of the Income Support (General) Regulations 1987 (SI 1987/1967) ("the Regulations").

2

On 31 August 1998 the appellant, then aged 20, arrived at Gatwick Airport with her father and several other members of her family. They were Lithuanians of Russian origin and had flown to this country from Lithuania. Her father claimed asylum for himself and other dependent members of the family. The appellant claimed asylum on her own behalf. It seems clear (and it has not been questioned) that her claim for asylum was duly recorded by the Secretary of State as having been made.

3

On 4 September 1998 the appellant claimed payment of income support. This is an income-related benefit governed by Part VII of the Social Security Contributions and Benefits Act 1992. The amount payable to a "person from abroad" as defined in regulation 21(3) of the Regulations is ordinarily nil, entitling such person to no payment. But Part VI of the Regulations made special provision for some urgent cases, in which there was an entitlement to payment of 90% of the amount normally payable to those entitled. The class of urgent case relevant for present purposes is persons from abroad who were asylum seekers for purposes of paragraph (3A) of regulation 70 of the Regulations. That paragraph provided (so far as relevant):

"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 [1951 Geneva Convention and the 1967 Protocol relating to the Status of Refugees] 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."

The appellant was accepted as falling within that description. Income support at the applicable rate (90% of the normal rate) was accordingly paid to her with effect from 4 September 1998. It continued to be paid for some 14 months until, with effect from 9 December 1999, payment was stopped.

4

At some time after her arrival in the United Kingdom the appellant was interviewed by an immigration officer concerning the merits of her asylum claim. Decisions on asylum, however, unlike decisions on leave to enter, are taken not by immigration officers but by the Secretary of State. This long-standing rule is now found in rule 328 of the Statement of Changes in Immigration Rules (HC 395) ("the Rules") laid before Parliament in accordance with section 3(2) of the Immigration Act 1971 as a statement of "the practice to be followed" in the administration of the Immigration Acts. Rule 328 provides:

"All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees. Every asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer for determination by the Secretary of State in accordance with these Rules."

The immigration officer's record of the interview with the appellant has not been produced in these proceedings, but it was produced to and considered by an adjudicator who heard appeals by the appellant and her father in December 2000-January 2001 (Appeal nos CC/17722/00 and CC 15675/00, March 2000, paragraph 75) and it seems clear that the record was sent to the officials responsible for making asylum decisions on behalf of the Home Secretary to enable them to make that decision.

5

On 20 November 1999 the responsible official in the Integrated Casework Directorate of the Home Office made a note to the following effect in the file relating to the appellant's asylum claim:

"This woman has cited numerous mishaps throughout the 1990s and puts her woes down to an encounter her father had with a drunken solicitor in 1991. There is no credibility in any of this and no Convention reason anyway.

For the reasons given in the letter aside, this applicant has failed to establish a well founded fear of persecution. Refusal is appropriate. Case hereby recorded as determined. Certified under 5(4)(a)."

The terms of this note, and the certification of the appellant's asylum claim under paragraph 5(4)(a) of Schedule 2 to the Asylum and Immigration Appeals Act 1993 as not showing a fear of persecution for a Convention reason, make plain that in the opinion of the Home Office the claim was hopeless. This was not the view later taken by the adjudicator who, although rejecting the asylum claim, believed the appellant's account, recommended that the Home Secretary consider granting her exceptional leave to remain and declined to uphold the certificate under paragraph 5(4)(a). But the Home Office did not regard the appellant's claim as in any way borderline, as is evident from the terms of the "letter aside": this was a draft letter setting out the Home Secretary's reasons for refusing the asylum claim which was dated 20 November 1999, the same date as the file note, but was not at that stage sent to the appellant or her solicitors.

6

Upon the making of the file note just described, the Home Office considered (whether rightly or wrongly, which is the issue in this appeal) that the appellant was no longer an asylum seeker and so no longer entitled to payment of income support. As already shown, the appellant's entitlement to income support depended on her being an asylum seeker within the definition in paragraph (3A) of regulation 70 of the Regulations. But that paragraph also provided:

"For the purposes of this paragraph, a person -

"(b) ceases to be an asylum seeker -

(i) in the case of a claim for asylum which, on or after 5th 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."

The Home Office treated the appellant as ceasing to be an asylum seeker on 20 November 1999 and communicated its decision to the Benefits Agency, responsible for paying income support to the appellant, some days later. That agency ceased to pay income support to the appellant with effect from 9 December 1999 and on the same day wrote to her asking for the return of her income support order book and directing her to cash no further orders. A week earlier the London Borough of Southwark had written to the solicitors acting for the appellant and her father referring to refusal of "the family's" asylum application and indicating that there was no longer an entitlement to housing assistance. The appellant's solicitors gathered from the Benefits Agency and the local authority that her (and her father's) asylum claims had been refused, and on 23 December 1999 the Benefits Agency confirmed that it had been told by the Home Office that her asylum claim had been refused on 20 November and that payments of income support had been stopped with effect from 9 December. It is, however, a very regrettable feature of this case that the appellant was not informed directly that her asylum claim had been refused or when, was given neither reasons for the refusal nor any promise that reasons would be given at a later date, and was not told that her income support payments were to be stopped or why or when.

7

Upon the Home Secretary's determination (or purported determination) of the appellant's asylum claim, responsibility for resolving her immigration status returned to the immigration officer at Gatwick. Had the Home Secretary decided to grant asylum and had the appellant not yet received leave to enter, the immigration officer would have granted limited leave to enter pursuant to rule 330 of the Rules. But rule 331 provides:

"If a person seeking leave to enter is refused asylum, the Immigration Officer will then resume his examination to determine whether or not to grant him leave to enter under any other provision of these Rules. If the person fails at any time to comply with a requirement to report to an Immigration Officer for examination, the Immigration Officer may direct that the person's examination shall be treated as concluded at that time. The Immigration Officer will then consider any outstanding applications for entry on the basis of any evidence before him."

8

In order to discharge the duty under this rule, the immigration officer at Gatwick wrote to the appellant on 28 November 1999, inviting her to attend for interview there on 11 January 2000. At this interview, had it taken place, it is likely that the appellant would have been refused leave to enter and would have been handed the letter of 20 November 1999 setting out the Home Secretary's reasons for refusing asylum. Rule 333 of the Rules prescribed the procedure to be followed:

"A person who is refused leave to enter following the refusal of an asylum application will be provided with a notice...

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