CIS/265/1999

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, brought with the leave of the tribunal chairman by the Secretary of State as successor to the adjudication officer, against a decision of the Manchester social security appeal tribunal dated 29 July 1998 whereby they held, by a majority, that the claimant was an asylum seeker within regulation 70(3A) of the Income Support (General) Regulations 1987 and so was entitled to urgent case payments of income support.  I held an oral hearing at which the Secretary of State was represented by Ms Vicky Bergmann of the Office of the Solicitor to the Departments of Social Security and Health and the claimant was represented by Mr. David Forsdick of counsel, instructed by the Bar Pro Bono Unit.  I am very grateful to both Ms Bergmann and Mr Forsdick for their clear and helpful submissions.

2.	The material facts of the case are not in dispute and may be stated quite shortly.  The claimant first came to the United Kingdom with his family in 1994 to take a postgraduate course.  He was granted leave to enter as a student under a sponsorship agreement.  As such, he was a “person from abroad” and would not have been entitled to income support.  On 6 April 1997 he went to Saudi Arabia on a pilgrimage, leaving his wife and children in the United Kingdom.  On 21 April 1997, he returned and claimed asylum on his arrival at Heathrow airport.  He twice subsequently claimed income support, on 5 November 1997 and 24 April 1998.  Both claims were disallowed on the ground that he was a “person from abroad” because asylum seekers are generally allowed temporary admission to the United Kingdom by the Secretary of State outside any provision of the Immigration Act 1971, although in this particular case the claimant appears to have been allowed temporary admission by an immigration officer under that Act.  The claimant appealed on the ground that he was in any event an asylum seeker within regulation 70(3A)(a) of the 1987 Regulations which provides:-

	“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 adjudication officer submitted that, although the claimant had claimed asylum “on his arrival”, the claim had also been on “re-entry” and so the claimant was not an asylum seeker within regulation 70(3A)(a).  One member of the tribunal accepted the adjudication officer’s argument but the majority decided that there was no re-entry on 21 April 1997 because the claimant “was not given leave to enter the United Kingdom within the meaning of the Immigration Act 1971 but was only given temporary admission”.  The adjudication officer appealed.

3.	I need not set out the arguments advanced by the adjudication officer in the written submission to me.  Suffice it to say that Ms Bergmann accepted that it showed a serious misapprehension as to the relevant provisions of immigration law.  Even though appeals to Commissioners lie only on points of law, those who write most submissions on behalf of the Secretary of State are not lawyers.  They do have some expertise in social security law but, in my view, they should generally seek legal advice (which is readily available to them) before making assertions about the law in other fields.  Otherwise, their submissions are unlikely to provide the help that Commissioners are entitled to expect from them.

4.	It seems obvious that, in construing regulation 70(3A)(a) of the 1987 Regulations, regard must be had to immigration law and practice.  On the other hand, it is equally plain that the term “re-entry” is not a term used in immigration law.  The term “re-enter” is used in rule 20 of the Immigration Rules but neither Ms Bergmann nor Mr Forsdick was able to draw my attention to the use of either term anywhere else in either the 1971 Act or the Rules.

5.	Both Ms Bergmann and Mr Forsdick referred me to section 3 of the 1971 Act which provides, so far as is material:-

	“(1)	Except as otherwise provided by or under this Act, where a person is not a British citizen -

		(a)	he shall not enter the United Kingdom unless given leave to do so in accordance with this Act;

		(b)	he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for a indefinite period;

		(c)	if he is given a limited leave to enter or remain in the United Kingdom, it may be given subject to conditions restricting his employment or occupation in the United Kingdom, or requiring him to register with the police or both.

	....

	(4)	A person’s leave to enter or remain in the United Kingdom shall lapse on his going to a country or territory outside the common travel area (whether or not he lands there), unless within the period for which had leave he returns to the United Kingdom in circumstances in which he is not required to obtain leave to enter; but, if he does so return, his previous leave (and any limitation on it or conditions attached to it) shall continue to apply.

	....”

In relation to subsection (4), rule 20 of the Immigration Rules provides:-

	“20.  The leave of a person whose stay in the United Kingdom is subject to a time limit lapses on his going to a country or territory outside the common travel area.  Such a person who returns after a temporary absence abroad within the period of this earlier leave has no claim to admission as a returning resident.  His application to re-enter the United Kingdom should be considered in the light of all the relevant circumstances.  The same time limit and any conditions attached will normally be re-imposed if he meets the requirements of these rules, unless he is seeking admission in a different capacity from the one in which he was last given leave to enter or remain.”

In the context of rule 20, it appears that “re-enter” means simply “enter again within the time limit of the previous grant of leave”.  Mr Forsdick at first submitted that it appeared from section 3(1)(a) that the person could only “enter” with leave and that the majority of the tribunal was therefore right to find that there was no re-entry where leave was required but not granted.  Ms Bergmann accepted that, if the claimant’s previous leave still subsisted when he left the United Kingdom (as I am told it did), he would, by virtue of section 3(4), have required leave to enter upon his return but she submitted that Mr Forsdick’s construction would make the words in parenthesis in regulation 70(3A)(a) otiose because the only people other than British citizens who do not require leave to enter when returning to the United Kingdom from outside the common travel area are seamen, air crew, diplomats, members of certain armed forces and others to whom section 8 of the 1971 Act applies.

6.	One objection to Mr Forsdick’s argument is that section 3(1)(a) is merely an injunction and it does not mean that there cannot be entry without leave.  That is made plain by section 24(1)(a) which makes it an offence “if contrary to this Act [a person] knowingly enters the United Kingdom in breach of a deportation order or without leave”.  On the other hand, a person who has been granted temporary admission by an immigration officer under Schedule 2 to the 1971 Act (as the present claimant was - see document 15 which is presumably the third grant of temporary admission which seems to have been granted for six months at a time) has not entered the United Kingdom for the purposes of the 1971 Act (see Regina v Naillie [1993] A.C. 674) and it would therefore appear that the present claimant did not “enter” the United Kingdom on 21 April 1997, as that term is used in the 1971 Act.  In Naillie the House of Lords did not consider the position of a person granted temporary admission by the Secretary of State rather than an immigration officer but the tenor of the speech of Lord Slynn of Hadley suggests that such a person does not “enter” until the asylum application has been determined in his favour.

7.	That, however, merely serves to strengthen Ms Bergmann’s point that “re-entry” in regulation 70(3A)(a) bears a non-technical meaning.  The subparagraph plainly contemplates a person who claims asylum on arrival on re-entry and giving the term “re-entry” a technical meaning would have the effect that there were no, or were virtually no, such people.  Furthermore, it is plain that the purpose of the words in parenthesis in that subparagraph is to prevent those who have not claimed asylum on arrival gaining another opportunity of doing so by leaving the common travel area and arriving again.  I therefore accept Ms Bergmann’s submission that a person who, having claimed asylum, has been granted temporary admission to the United Kingdom may be a person who has re-entered the United Kingdom for the purposes of regulation 70(3A)(a).

8.	What, then, does the term “re-entry” mean?  Mr Forsdick pointed out that if it just meant “return” it would catch a person who left the United Kingdom to settle in another country and then sought asylum in the United Kingdom many years later following a political upheaval there.  Ms Bergmann readily accepted that re-entry did not simply mean “return”.  She submitted that once again one had to have regard to the mischief at what the words in parenthesis were aimed in order to find their meaning and that in this context the word “re-entry” connoted a relatively short period of absence, although she declined to be drawn on how short.  She further submitted that the length of time was not the only relevant criterion and suggested that it was material whether the departure was linked to the return in some way.  Thus, she was inclined to draw a distinction between a person who left the United Kingdom and then returned after what was always intended to be a short temporary period and a person who left the United Kingdom intending to settle elsewhere for a lengthy period but who returned after a short period following an outbreak of violence.

9.	Mr Forsdick submitted that the term “re-entry” should be construed so as to enable those with good reason for not having claimed asylum earlier to qualify for income support.  He gave as an example the facts of the present case where, he said, the claimant had claimed asylum on his return from the pilgrimage because, while in Saudi Arabia, he had received information which put him in fear of his life.  That had meant that there was a change in the claimant’s circumstances which, submitted Mr Forsdick, explained and justified his claim for asylum on his return so that it could be seen that this was not a case of a person going abroad deliberately to circumvent the legislation.  There is, of course, a provision that deals with change of circumstances.  Regulation 70(3A)(aa) of the 1987 Regulations provides that a person -

	“(aa)	becomes, while present in Great Britain, an asylum seeker when -

	(i)		the Secretary of State makes a declaration to the effect that the country of which he is a national is subject to such a fundamental change in circumstances that he would not normally order the return of a person to that country, and

	(ii)		he submits, within a period of 3 months from the day that declaration was made, a claim for asylum to the Secretary of State under the Convention relating to the Status of Refugees and

	(iii)	his claim for asylum under that Convention is recorded by the Secretary of State as having been made; ....”

That subparagraph is narrowly drawn - no doubt deliberately - and if the claimant had received information that his life was in danger while present in the United Kingdom he would not have been assisted by it.  In my view, it would create a considerable anomaly if a claimant were entitled to income support because he was fortuitously outside the common travel area on pilgrimage or on holiday when he received information that his life was in danger so that he had the opportunity of making the consequential claim for asylum on his arrival back in the United Kingdom after his pilgrimage.  Mr Forsdick also suggested that paragraph 70(3A)(aa) was drawn so narrowly that a person who happens to be temporarily abroad when an upheaval declaration was made by the Secretary of State would not be entitled to rely upon it.  I am not sure that that is right but, even if it were, it would be wrong to give to the words in parenthesis in subparagraph (a) a meaning which would defeat their obvious purpose, merely in order to avoid the unfortunate result of a simple drafting error in subparagraph (aa).

10.	It is unnecessary, and is probably undesirable, for me to give general guidance as to the approach to be taken to the phrase “otherwise than on re-entry”.  Mr Forsdick submitted that the European Convention on Human Rights required that a person should be able to predict the law to be applied by a court prior to a hearing.  However, although legal certainty is important under the convention, the convention does not prohibit the development of the law on a case by case basis and the actual terms of regulation 70(3A)(a) are available for all to see.  It is therefore only necessary for me to decide whether or not the claim for asylum in the present case was made on re-entry.  I accept Ms Bergmann’s concession that the length of the absence is a material consideration.  In the present case, the period of absence was only three weeks and that points to there being a re-entry.  If it is relevant that the absence was always intended to be a short temporary absence, that condition is satisfied in the present case.  If it is relevant that the claimant’s previous leave to enter had not expired when he left the common travel area and would not have expired when he returned had it not lapsed under section 3(4) of the 1971 Act, that condition is also made out in the present case.  I therefore accept Ms Bergmann’s submission that, on the undisputed facts of this particular case, the only proper conclusion that could have been drawn by the tribunal was that the claimant’s claim for asylum was made on re-entry.

11.	Accordingly, I allow the Secretary of State’s appeal.  I set aside the decision of the Manchester social security appeal tribunal dated 29 July 1998 and I give the decision that the tribunal should have given which is that the claimant is not entitled to income support on his claim on 5 November 1997.  It will follow from my decision that the claimant was not entitled to benefit on his later claim either.

M. ROWLAND
Commissioner
27 June 2000