RJCA/SH/AH/5
				Commissioner’s File:	CIS/1137/1997

SOCIAL SECURITY ADMINISTRATION ACT 1992

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992

APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the Social Security Appeal Tribunal dated 18 November 1996 is erroneous in law.  I set that decision aside and direct that the claimant’s case be heard again by a differently constituted tribunal.

2.	The claimant appeals, with the leave of the chairman, against the tribunal’s majority decision that the claimant is not entitled to Income Support from 14 August 1996.  

3.	The claimant and his mother entered the United Kingdom at Heathrow Airport on 7 August 1996 and attended at the Home Office (Lunar House, Croydon) in connection with claims for asylum on 8 August 1996.  On 14 August 1996 they each made claims for Income Support.  An adjudication officer refused both claims on the basis that the claimants were persons from abroad as defined in regulation 21 of the Income Support (General) Regulations 1987 and, although they had applied for political asylum, they were not asylum seekers within the meaning of regulation 70(3A)(a) of those regulations because they had not submitted their claims for asylum on their arrival in the United Kingdom.  The consequence was that their respective applicable amounts for the purposes of the calculation of Income Support were, in terms of regulation 21 as read with paragraph 17 of Schedule 7 to those regulations, nil which meant that neither claimant was entitled to benefit.  Both claimants appealed to the Social Security Appeal Tribunal.

4.	Both appeals were heard on the same day by the same tribunal.  The claimant’s case was heard first in the presence of his mother.  The claimant was represented by a solicitor who also acted as an interpreter because the claimant speaks virtually no English and his mother speaks none.  The tribunal made detailed findings in fact which included findings that the claimant and his mother had arrived at Heathrow Airport from Moscow on 7 August 1996 at 12.30 pm.  They were, with others, escorted by a Russian agent who had provided passports for them to board the plane at Moscow.  At Heathrow the agent went through immigration control with the passports ahead of the claimant and his mother and arranged for them to pass through.  The claimant was not asked about and did not apply for political asylum either on the plane from Moscow or at immigration control at Heathrow.  After the agent and the whole group had gone through immigration control the agent departed from the airport with the passports and the other members of the group leaving the claimant and his mother at the airport.  At about 5.00 pm the claimant and his mother were taken to the office of the Refugee Arrivals Project at Terminal 2. There was no Persian speaker at the Refugee Arrivals Project Office.  The Project staff placed them in a hotel for the night and the next morning took them by taxi to the Immigration and Nationality Department of the Home Office at Lunar House, Croydon , where claims for asylum were made.  

5.	The reason for the tribunal’s majority decision was that the claimant’s account of his journey from Afghanistan to Heathrow was so incredible that his evidence could not be accepted as wholly credible and that the majority’s conclusion was that the claimant could have applied for political asylum on 7 August 1996 the record refers to 7 July but that is obviously a slip of the pen) while he was at Heathrow instead of at Lunar House the following day.  Therefore he had not submitted his application for asylum “on his arrival” in the United Kingdom, consequently did not satisfy the definition of asylum seeker in regulation 70(3A)(a) and for that reason did not qualify for an urgent case payment under regulation 71 of the Income Support (General) Regulations 1987 as amended.

6.	The claimant’s grounds for appealing the tribunal’s decision are that the incredibility of his account of his journey from Afghanistan to London was irrelevant, the tribunal had made no findings in fact in relation to the claimant’s evidence that he had tried to speak to an official and later to a policeman, it was perverse of the tribunal to dismiss the claimant’s appeal but uphold his mother’s appeal given the similarity of their situations at Heathrow Airport, the decision failed to take account of the evidence from the Refugee Arrivals Project as to the condition of the claimant and his mother when they were found at the airport and the decision failed to take account of ministerial statements during the passage through Parliament of the Asylum and Immigration Bill to the effect that it’s provisions would be interpreted flexibly.  The adjudication officer’s submission in answer to those grounds of appeal is simply that in CIS/143/1997 a Social Security Commissioner had decided that “on arrival” in regulation 70(3A)(a) means before clearing immigration control at the port of entry.  

7.	I heard the claimant’s appeal on 2 February 1998 together with an appeal on file CIS/2719/1997.  The claimant in this appeal was represented by Mr M Haran of the Citizens Advice Bureau and the adjudication officer was represented by Miss J Hartridge of the Office of the Solicitor to the Department of Social Security.  Mr Haran reiterated the argument that it was perverse for the tribunal to have dismissed the claimant’s appeal on the grounds that he had not submitted his application for political asylum on his arrival in the United Kingdom while upholding the appeal by his mother who had been in exactly the same circumstances and had made her application at the same time.  Miss Hartridge argued that the claimant’s and his mother’s appeals were separate cases before the tribunal on which the tribunal had made separate decisions.  There was therefore no connection between the two cases and a tribunal was not bound by its decision in one case in deciding another case.  Although the majority of the tribunal had rejected the claimant’s evidence of his journey from Afghanistan to London as incredible it had made its decision on the basis of evidence of what had happened at the airport and had made sufficient findings in fact to justify its decision that the claim for asylum made at Lunar House was not made on arrival in the United Kingdom. 

8.	Mr Haran produced to me the chairman’s notes of evidence in the claimant’s appeal.  They read as follows:-

“Tribunal introduced as in the son’s related appeal (7.07.96.21806).

Mrs [the claimant’s mother] confirms through interpreter that the same set of facts applied to her as applied to her son.  

          :  she speaks literally no English.  She has a mobility problem, so it was all the more difficult for her to apply at the airport for asylum either at Passport Control or during that day of arrival 7‑8‑96.

Parties leave.

Tribunal deliberates.”.

I think it is quite clear from those notes that the tribunal regarded itself as hearing the two cases together and that the son’s evidence was incorporated with his mother’s evidence to the tribunal.  Therefore there is in the record of the tribunal’s decision on the claimant’s appeal an inadequate explanation as to why the evidence which was common to both appeals led the tribunal to dismiss the claimant’s appeal but uphold that of his mother.  That is a breach of regulation 23(2)(b) of the Social Security (Adjudication) Regulations 1995 and on account of that error I have to set the tribunal’s decision aside.  Mr Haran and Miss Hartridge both addressed me on the interpretation of the  expression “on his arrival” in regulation 70 (3A) (a).  I have recorded their submissions in my decision on CIS/2719/97, a copy of which is the Appendix to this decision.

9.	For reasons which will be apparent from my decision on the appeal on file CIS/2719/1997 the tribunal which rehears the claimant’s case will have to inquire into, and make findings in fact based on the results of that inquiry on, the questions of whether the claimant made any contact with anyone acting in the name of the Secretary of State before he left Heathrow Airport on 7 August 1997 and whether that contact was recorded by that person.  Who was the officer referred to in the claimant’s statement on document 50 of the appeal papers , what is the locus of the Refugee Arrivals Project, does it have any mandate from the Secretary of State to deal with asylum seekers, did the Refugee Arrivals Project contact an immigration officer in Heathrow on 3 August 1997? Although it is the tribunal’s duty to inquire into those matters the onus of establishing that he satisfies the conditions for entitlement to benefit, including that of coming within the definition enacted in regulation 70(3A)(a) of the General Regulations, rests on the claimant and it will be for him to establish to the satisfaction of the tribunal on the balance of probabilities that before leaving Heathrow Airport on 7 August 1998 he informed somebody acting in the name of the Secretary of State that he required asylum.

10.	For the foregoing reasons the claimant’s appeal succeeds to the extent that I have set the tribunal’s decision aside and my decision and directions are in paragraphs 1 and 9 above.

					(Signed)	R J C Angus
							Commissioner

					(Date)	2 April 1998