Shire v Secretary of State for Work and Pensions [2003] EWCA Civ 1465

[2003] EWCA Civ 1465IN THE SUPREME COURT OF JUDICATURE C3/2003/0521
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS
Venue Royal Courts of JusticeDate Monday 13 October 2003
Between
AMINA JAMA SHIREAppellantSECRETARY OF STATE FOR WORK AND PENSIONSRespondent
The Strand
London
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)
LORD JUSTICE CHADWICK
and
LORD JUSTICE BUXTON
_______________
B E T W E E N:
_______________(Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4A 2HDTelephone 020 7421 4040Official Shorthand Writers to the Court)_______________MR NICHOLAS BLAKE QC and MR RANSIV KHUBBER (instructed by the Joint Council for Welfare of Immigrants, London EC1V 9RT) appeared on behalf of THE APPELLANTMR T WARD (instructed by the Office of the Solicitor to the Department for Works and Pensions) appeared on behalf of THE DEFENDANT_______________J U D G M E N T(As Approved by the Court)_______________

Monday 13 October 2003

[1]This is an appeal with the permission of the Social Security Commissioner against a decision which he gave on 10 October 2002. On that occasion he dismissed the appeal of an Income Support Appeal Tribunal made on 19 January 2000 that the claimant was not entitled to urgent case payment of income support because she was a person who arrived in this country from abroad and had not claimed political asylum on arrival in the United Kingdom.[2]Put very shortly, her case was that she had been told by the agent who was responsible for managing her entry into this country not to make a claim and she did not do so.[3]Before developing the appeal further in relation to the facts of this particular case it is desirable that I say something about the procedure which has occurred in relation to this appeal. The Procedural Point[4]The appellant identified three grounds of appeal, which are set out in her Notice of Appeal to this court. The precise terms are not important, but, having obtained from the Commissioner permission to appeal on the basis of those three grounds, the appellant (who was represented by junior counsel at that time) in due course had prepared on her behalf a skeleton argument which as far as the court is aware was served in accordance with the relevant Practice Direction. If there had been no further changes made in respect of that skeleton argument it would not be necessary for me to make the remarks that I now make. However, there came a stage where Mr Blake QC was instructed on the appellant's behalf. As I understand the position, Mr Blake was only instructed at the end of last term. He was then not available in August. He returned in September and there came a stage when he was able to give attention to this case. In consequence on 26 September a fresh skeleton argument was delivered direct to counsel appearing on behalf of the Secretary of State, and presumably about the same time the fresh skeleton argument was sent to the court. By then the date of hearing was rapidly approaching.[5]In the fresh skeleton argument the nature of the appellant's case changed significantly. The previous grounds had depended partly on Article 31 of the Geneva Convention and partly upon provisions of the European Convention on Human Rights. Finally, there was a reliance on guidance issued by the Department. No attempt was made to file amended grounds of appeal to cover the new argument which, as will appear hereafter, was, by contrast, a short point of interpretation. Instead, if the court had not intervened, Mr Blake would have developed the argument to which I will in due course turn when opening the appeal.[6]It seems to me that this is an unfortunate way to go about the processing of an appeal where it is decided that the case which should be presented at the hearing of the appeal will differ radically from the case which had previously been intended to be presented where that case is the one upon which permission to appeal had been given. In a situation of that nature it is highly desirable that those who act on behalf of the appellant should write to the court and to the other party indicating the proposed nature of the changed case which is to be advanced, seeking the directions of the court as to whether the matter should be dealt with at the beginning of the hearing of the appeal or by directions being given by the court prior to the hearing of the appeal.[7]If, as should happen, the respondent is informed of the change in the nature of the case, the respondent if he wishes can raise objection to the change in nature of the case. The court should be informed of the attitude of the respondent. If this is done the court can decide whether the case is one which can be disposed of summarily because there is no merit in the new grounds. The court can also decide, that in the interests of justice, it is not right that the appellant should not be allowed to change the grounds at a very late stage, as occurred in this case. Where the new grounds may have merit the course to which I have referred will also give the court the opportunity to consider the most appropriate way in which to dispose of the appeal if it is to proceed. It is to be hoped that action indicated will be taken in future where there is a change of the sort that I have indicated in the way the appeal is to be presented.[8]In the present case the court was satisfied that it was appropriate to hear the appeal, notwithstanding the change in the nature of the arguments relied on which it was proposed would take place. That being so, I turn to consider the merits of the appellant's argument. The Merits[9]The appellant arrived at Gatwick Airport on a flight from Yemen at 10.30pm on 29 August 1999. She did not apply for asylum until 31 August 1999. There is no dispute that the appellant was therefore a person from abroad within the meaning of section 21(3) of the Income Support General Regulations 1987 (“the Income Support Regulations”). As such she was not entitled to income support other than in the applicable amount, which in her case was nil. This meant from a practical point of view she would not normally be entitled to any income support. However, Regulation 70 of the Income Support Regulations at that time provided for payment of income support in certain urgent cases. Asylum seekers were among the cases in which such payments could be made. They were made under Regulation 70(3B). For these purposes an asylum seeker was defined in Regulation 70(3A) in the following terms:
“For the purpose of this paragraph, a person -- (a) is an asylum seeker when he submits on his arrival [my emphasis] (other then on his re-entry) in the United Kingdom from the 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 the claim is recorded by the Secretary of State as having been made;...”
The Convention referred to in that regulation is the Geneva Convention relating to the status of refugees.[10]The issue which divides the parties on this appeal is the interpretation to be given to the words “on his arrival”. One of the reasons why Mr Blake considered it was necessary to change the basis of the argument on this appeal is that, prior to his being instructed, reliance was sought to be placed upon the European Convention on Human Rights. But, as Mr Blake accepts, in the present case there was no right to rely directly on the European Convention on Human Rights because prior to October 2000 the European Convention was not part of our domestic law. As Mr Blake accepts, neither in this case or in any other could the European Convention directly affect the interpretation of the regulation in question because the regulation which is at the heart of this appeal was no longer in force by the time the European Convention on Human Rights became part of our domestic law under the Human Rights Act 1998. In fact the relevant law has since been changed on at least two occasions. This case on its facts therefore is only of historic interest, although it is possible that there are other cases, which have not yet been finally resolved, which might be affected by this court's decision in this case.[11]The evidence as to precisely what happened when the appellant arrived in this country is not clear. However, it is clear that she was accompanied by an agent who was responsible for obtaining for her the documents she needed in order to travel and the documents that it was necessary to show in order to obtain entry into this country at Gatwick Airport. She says that she was under the control of the agent and therefore was not in a position to make a claim independent of the agent. She says that the agent had a very substantial interest in ensuring that she did nothing that might cause the agent to be arrested and charged with facilitating her entry on arrival. However, from her personal point of view there was no advantage in her not claiming on first landing. Indeed, had it not been for the agent's intervention, she would have claimed on arrival. However, having arrived, the agent called a taxi. The appellant was put into the taxi. She went from the airport to the address of her sister. She did not claim asylum the following day, which was a bank holiday. But on the next day she did claim.[12]If the words “on her arrival” are given a literal meaning in the regulation, then there is no doubt, as the Office for the Solicitor to the Department for Works and Pensions contends, that she did not claim “on her arrival”. However, she submits that this court should adopt a more realistic interpretation of those words, having regard to their applicability to a number of different situations. Mr Blake submits that the meaning which should be given to those words in the context of these regulations is one which would mean that the requirement that a claim should be made on arrival would be met if the claim is made at the first effective opportunity.[13]Mr Blake submits that either the Commissioner or the fact-finding tribunals below the Commissioner should have decided that, in the context that we are here considering, the appellant had made such a claim, or, alternatively, the matter should be reconsidered by the fact-finding tribunal because they did not apply the proper test, namely, the first effective opportunity of making a claim. If they had considered the matter in the manner for which Mr Blake contends, the appellant may have been found to fall within the wording of the regulation.[14]In support of his approach Mr Blake draws attention to the fact that Commissioners in other cases have not adopted a strictly literal interpretation of the words “on his arrival”, but have applied them appropriately to the facts of a particular situation under consideration. He gives examples of the person who wishes to seek asylum who arrives in this country by being landed at some distant part of the countryside, away from any designated airport or the Home Office appropriate offices; the person who is brought into this country in the back of a container lorry, so that he or she cannot physically make a claim until released from the container; the person arriving in this country who is physically unable to make a claim either because he or she is suffering from an illness which perhaps even makes the claimant unconscious and who has to be rushed to hospital; or of the person who does not speak the language and is incapable of communicating with anyone who speaks his or her language. Finally, Mr Blake refers to cases of duress and points out that duress can take different forms. In the case of commercial transactions it may involve economic duress. He submits that an interpretation must be adopted which covers these different situations, and therefore he seeks to contend for an approach to the regulation which requires the claimant to do no more than make his or her claim at the first effective opportunity.[15]Viewed in that way Mr Blake submits that the appellant could have been regarded as someone who made a claim at the first effective opportunity. As to that approach to the regulation, I do not accept Mr Blake's submission that the appellant should be treated as someone who made a claim at the first effective opportunity, if that is the right test to apply. In my view the position of a person who employs an agent to obtain access to this country is quite distinct from the situations to which Mr Blake refers. The person who uses an agent must be regarded as putting themselves under the control of that agent so that they are responsible for the actions of the agent. Unless there is clear evidence of some form of physical duress being applied to the claimant, he or she must be regarded as continuing to be in control of what is happening.[16]I therefore am of the view that on any showing on the facts of this case the appellant has not put forward a claim for asylum at a time which meets the requirements of the regulation which was applicable at that time. She is therefore not someone who is entitled to the urgent support for which the regulation provides.[17]As the regulations are no longer in force and the legislation now is in a different form, it is not necessary in my view to try to identify which cases would fall within the language of the regulation and which cases would fall outside the language of the regulation. There has to be a limit placed upon the elasticity of the words “on his arrival” used by the regulation. As indicated, they do not extend to a case of this sort. I would accordingly dismiss this appeal.

LORD JUSTICE CHADWICK: I agree.

LORD JUSTICE BUXTON: I also agree.

ORDER

Appeal dismissed; no order for costs save Community Legal Services assessment of the appellant's costs.

Cited in 4 later judgments