Szoma v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | LORD BINGHAM OF CORNHILL,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD RODGER OF EARLSFERRY,BARONESS HALE OF RICHMOND,LORD HUTTON |
| Judgment Date | 27 October 2005 |
| Neutral Citation | [2005] UKHL 64 |
| Date | 27 October 2005 |
| Court | House of Lords |
[2005] UKHL 64
Appellate Committee
Lord Bingham of Cornhill
Lord Hutton
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
Appellant:
Richard Drabble QC
Duran Seddon
(instructed by Pierce Glynn)
Respondent:
Nigel Giffin QC
Parishil Patel
(instructed by Office of the Solicitor, Department for Work and Pensions)
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I agree with it, and for the reasons which he gives would allow the appeal and make the order which he proposes.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Brown of Eaton-under-Heywood. I agree with it and for the reasons which he gives I too would allow this appeal.
My Lords,
I have had the advantage of considering in draft the speech that is to be delivered by my noble and learned friend, Lord Brown of Eaton-under-Heywood. I agree with it and, for the reasons which he gives, I too would allow the appeal.
My Lords,
For the reasons given in the opinion of my noble and learned friend, Lord Brown of Eaton-under-Heywood, with which I agree, I too would allow this appeal and reinstate the Tribunal's decision in favour of the appellant.
My Lords,
Is a person temporarily admitted to the United Kingdom under the written authority of an immigration officer pursuant to paragraph 21 of Schedule 2 to the Immigration Act 1971 (the 1971 Act) "lawfully present in the United Kingdom" within the meaning of paragraph 4 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (the 2000 Regulations) (2000/363)? That is the single question raised on this appeal. Before addressing it, however, let me briefly indicate the particular context in which it arises and the consequences of a decision either way.
The appellant is a twenty-nine year old Polish national from the Roma community who arrived in this country on 8 November 1998 and immediately claimed asylum. He was temporarily admitted and in the event remained so under successive authorisations for a total of six years until 18 November 2004 when, following a Home Office concession made in October 2003 in favour of those who had claimed asylum before October 2000, he was granted indefinite leave to remain. Meantime, he had been refused asylum and his appeal against that refusal had been dismissed.
This appeal, however, concerns not (or at least not directly) the appellant's immigration status but rather his entitlement to a particular non-contributory benefit, income support. Shortly after his arrival here the appellant had claimed and received this benefit: in those days it was payable to asylum seekers provided only that they claimed asylum "on their arrival". But then a new benefit regime was introduced by the Immigration and Asylum Act 1999 (the 1999 Act) and the 2000 Regulations made under it and it was under these provisions that the appellant's claim to income support was refused. It was refused on the basis that the appellant was not "lawfully present inthe United Kingdom". The appellant appealed against the refusal andon 26 January 2001 his appeal was allowed by the Social Security Appeal Tribunal. On 10 October 2002, however, Mr Commissioner Angus allowed the Secretary of State's appeal and on 30 July 2003 the Court of Appeal (Pill and Carnwath LJJ and Maurice Kay J) dismissed the appellant's appeal against the Commissioner's decision. Your Lordships having granted leave, the appellant now appeals again to this House.
For reasons into which it is unnecessary to go, only six weeks worth of income support now turns upon the outcome of this appeal. The point at issue, however, will undoubtedly affect many others besides the appellant and, indeed, a number of other non-contributory benefits too.
Whilst previously the appellant had been entitled to income support simply by virtue of his presence in the United Kingdom, the 1999 Act changed that position. Section 115(1) of the Act, under the heading "Exclusion from Benefits", provided that no one is entitled to income support and a number of other specified security benefits "while he is a person to whom this section applies." Subsection (3) provides that "This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed." Subsection (9) provides:
"'A person subject to immigration control" means a person who is not a national of an EEA state and who – (a) requires leave to enter or remain in the United Kingdom but does not have it…"
(paras (b), (c), and (d) of section 115 (9) refer to certain others who do have leave to enter or remain).
The 2000 Regulations prescribe those who, pursuant to section 115 (3), are not excluded from specified benefits notwithstanding that they are subject to immigration control. The various categories are described in Part 1 of the Schedule to the Regulations and it is paragraph 4 which is critical for present purposes:
"A person who is a national of a state which has ratified the European Convention on Social and Medical Assistance (done in Paris on 11 December 1953) [ECSMA] or a state which has ratified the Council of Europe Social Charter [CESC] (signed in Turin on 18 October 1961) and who is lawfully present in the United Kingdom."
It is sufficient for present purposes to cite one article from each of those treaties. Article 1 of ECSMA:
"Each of the Contracting Parties undertakes to ensure that nationals of the other Contracting Parties who are lawfully present in any part of its territory to which this Convention applies, and who are without sufficient resources, shall be entitled equally with its own nationals and on the same conditions to social and medical assistance (hereinafter referred to as 'assistance') provided by the legislation in force from time to time in that part of its territory."
Article 13 of CESC:
"With a view to ensuring the effective exercise of the right to social and medical assistance, the Contracting Parties undertake … 4. to apply the provisions referred to in paras 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other contracting parties lawfully within their territories, in accordance with their obligations under [ECSMA]."
It is not in dispute that paragraph 4 was included in the Schedule to the 2000 Regulations specifically to meet the United Kingdom's obligations under those treaties and it is common ground too that Poland had ratified one of them. The appellant's entitlement to benefit thus depended solely upon whether or not he was "lawfully present in the United Kingdom."
The provision under which the appellant was temporarily admitted to the United Kingdom was, as already mentioned, paragraph 21 of Schedule 2 to the 1971 Act. So far as relevant this provides:
"(1) A person liable to detention … under paragraph 16 above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained …; but this shall not prejudice a later exercise of the power to detain him.
(2) So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer."
The appellant's straightforward case is that during the yearsin question he had received the immigration officer's "writtenauthority" to be "at large in the United Kingdom" and accordingly, there being no suggestion that he had failed to comply with such restrictions as had been imposed upon him, he fully satisfied the condition that he was "lawfully present" here. Undoubtedly he was present, such presence being pursuant to the written authority of an immigration officer expressly provided for by the legislation; and he had committed no breach of the law. Small wonder that the IND's Asylum Policy Instructions provide that "applicants who have been granted temporary admission … are lawfully present in the United Kingdom, provided they adhere to the conditions attached to the grant of temporary admission."
The argument looks on its face unanswerable but, submits the Secretary of State, there is an answer to it and this is to be found in section 11 of the 1971 Act and two decisions closely in point: first that of your Lordships' House in R v Secretary of State for the Home...
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