28/11/2007
The House of Lords today handed down judgment in this case and allowed outright the appeals by both appellants that they had met the criteria of making their claim for asylum “on arrival” and were therefore entitled to urgent payments of income support at the reduced rate.
Kola and Mirzajani v Secretary of State for Work and Pensions [2007] UKHL 54, [2007] All ER (D) 425 (Nov)
> judgment
The issue of claiming asylum "on his arrival"
The central provision around which this appeal turned was regulation 70(3A) of the Income Support (General) Regulations 1987 (SI 1987/1967) (as inserted by regulation 8 of the 1996 Regulations):
“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 ...”
The critical issue for determination in this appeal was what precisely was meant by the phrase “on his arrival”. To qualify for benefits, an asylum seeker had to have made his asylum claim “on his arrival"; if he failed to do so, he was not an asylum seeker for the purposes of the urgent cases payment provision and was thus disqualified from all benefits however genuine his asylum claim and however destitute his situation.
Background
Mrs Kola had entered the United Kingdom in a sealed container lorry, from which she had not been able to disembark until the door was unlocked. Mr Mirzajani had entered the United Kingdom in a car which had traveled through the Channel Tunnel in March 1999. It was agreed between the parties that the Channel Tunnel did not amount to a port of entry, nor was there any immigration control at the Folkestone end of the Tunnel. Instead, British Immigration control was based in a ‘control zone’ at the Coquelles terminal in France. The Appellants argued that had Mr Mirzajani claimed asylum at British immigration control in France, he would not have been allowed to proceed to the UK, but instead handed over to the French authorities. The Appeal Tribunals hearing the Appellants’ appeals accepted that both had claimed asylum ‘in-country’ on their day of arrival in the United Kingdom.
Judgment
The House of Lords, having considered the conflicting approaches taken in the cases of Shire v Secretary of State for Work & Pensions [2003] EWCA Civ 1465 and R (Q) v Secretary of State for the Home Department [2004] QB 36, resolved the issue in favour of the Appellants and held that :
‘38. … If the asylum seeker could not reasonably have been expected to claim asylum any earlier than he did, having regard both to his practical opportunity for doing so and to his state of mind at the time, including the effect on him of anything said by his facilitating agent, then I see no good reason why his claim should not properly be accepted as one made “on his arrival.”
39. The approach taken by Q to the use of facilitating agents is to my mind altogether fairer and more realistic than that adopted in Shire (and in the court below) and, indeed, no one now doubts but that the Q approach should be followed in all future cases.
40. It follows that in my judgment the construction of regulation 70(3A) for which the appellants contend is to be preferred. Thus construed and applied, the relevant requirement was to my mind clearly satisfied in their cases’
Robust approach to interpretation of regulation 70(3A)
In so concluding, the House of Lords adopted a robust approach to the interpretation of regulation 70(3A). Although the Government had repeatedly stated its intention during proceedings before the Social Security Advisory Committee (SSAC), that anyone who did not claim asylum at the port of entry would not be entitled to benefit, the House of Lords held that the fact that the provision remained ambiguously drafted, notwithstanding the strong criticisms by the SSAC of the same, meant that the Government never addressed what the position would be for those asylum seekers entering the UK in an unorthodox or an unusual fashion, such as the Appellants.
Appellants not bound by conduct of migrant smugglers
The House of Lords emphatically rejected the Court of Appeal’s conclusion that the Appellants should be bound by the conduct of the migrant smugglers who facilitated their unlawful entry to the United Kingdom. It is considered that the House of Lords’ approach provides implicit support either to a human rights challenge to section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 or for this provision to be drastically read down.
Article 31 (1951 UN Convention on Refugees) applicable?
The House of Lords also followed the approach taken by the Court of Appeal in Q in having regard to the policy behind Article 31 of the 1951 UN Convention relating to the status of refugees, in construing the meaning of Regulation 70(3A). The House of Lords left the issue open as to whether or not Article 31 was directly applicable to the refusal of benefit to those who did not claim asylum at the port of entry.
Although Lord Brown was somewhat sceptical as to whether or not this could amount to a penalty on account of illegal entry, it is important to note that the Appellants’ argument is supported by Commissioner Rowland’s decision in CIS/4439/1998, which in turn has been approved by Professor Hathaway in The Rights of Refugees under International Law (2005 – Oxford University Press – pages 405-412) and Guy Goodwin Gill in his paper Article 31 of the 1951 Convention relating to the Status of Refugees : non penalization, detention and protection (within Refugee Protection in International Law – UNHCR’s Global Consultations on International Protection – Cambridge University Press 2003). Practitioners should therefore not be dissuaded from relying upon Article 31 in civil and immigration related proceedings in which the relevant issues arise.
Paul Draycott has represented the two Appellants from the original Social Security Appeal Tribunal hearings onwards.
Richard Drabble QC and Paul Draycott appeared for both appellants (instructed by CLC solicitors)
> House of Lords leave to appeal in Income Support / asylum case 14/12/2005