Secretary of State for the Home Department, Ex Parte Salem, R v. [1999] UKHL 8

House of Lords

Between

Secretary of State for the Home Department, Ex Parte Salem, R v.Appellant

Before

Lord Slynn of Hadley

Lord Mackay of Clashfern

Lord Jauncey of Tullichettle

Lord Steyn

Lord Clyde

Date 11 February 1999

LORD CLYDE

My Lords,

Section 123 of the Social Security Contributions and Benefits Act 1992 (formerly section 20 of the Social Security Act 1986) provides for certain "income-related benefits" including "income support" and "housing benefit." Different conditions of entitlement are prescribed for each, including for the former that a person is "in Great Britain." Regulations may be made pursuant to Subsection 137(2)( a ) "as to circumstances in which a person is to be treated as being or not being in Great Britain."

The Income Support (General) Regulations 1987 (made pursuant to the Act of 1986) and continued in force (S.I. 1987 No. 1967) as amended provide in Regulation 21 and Schedule 7 for the applicable amounts in special cases including that of a "person from abroad." In paragraph (3)( j ) of Regulation 21 a person otherwise in paragraph 3( a )-( i ) who submits a claim for asylum which is not finally determined is a person from abroad. Special arrangements are made in urgent cases by Regulation 70 of the 1987 Regulations including those for certain asylum seekers.

By Regulation 2 of the Income Support (General) Amendment No. 3 Regulations 1993, there is inserted in Regulation 70:

( a ) becomes an asylum seeker when he has submitted a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom's obligations under the [Geneva] 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; and

( b ) ceases to be an asylum seeker when his claim is recorded by the Secretary of State as having been finally determined or abandoned."

Regulation 70(3A)( b ) was amended by the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 (S.I. 1996 No. 30) to read:

(i) in the case of a claim which, on or after 5 February 1996, is recorded by the Secretary of State as having been determined (other than on appeal) or abandoned, on the date on which it is so recorded, or

(ii) in the case of a claim for asylum which is recorded as determined before 5 February 1996. . . . "

By Regulation 3 of the Income Support and Social Security (Claims and Payments) (Miscellaneous Amendments) Regulations 1996 (S.I. 1996 No. 2431) it is provided:

21ZA-- (1) Where a person has submitted a claim for asylum and is notified that he has been recorded by the Secretary of State as a refugee within the definition in Article 1 of the [Geneva Convention on Refugees 1951 as extended] he shall cease to be a person from abroad for the purposes of Regulation 21 (Special Cases) and Schedule 7 (Applicable Amounts in Special Cases) from the date he is so recorded."

The appellant is a Libyan national who arrived in the United Kingdom on 17 April 1997 and claimed asylum pursuant to Regulation 70(3A)( a ) of the 1987 Regulations. He was granted temporary admission and on 17 April 1997 was awarded income support and related benefits in accordance with that Regulation.

On 7 May 1997, the Home Office recorded on an internal file, without telling the appellant, that:

"Asylum has been refused on 7 May 1997 and the claim is hereby recorded as having been determined."

Following a request to make further representations, arrangements were made for an interview and the memorandum of 7 May was re-dated 10 July 1997. On 18 August 1997, the Immigration Service informed the appellant's solicitors that the representations were being considered and on a date before 5 September 1997 the Home Office informed the Benefits Agency that the appellant's claim had been recorded as determined within the meaning of Regulation 70(3A)( b ). Benefit was no longer paid. On 12 September 1997, the Home Office asked the appellant's solicitors if further evidence was available "in order for the Secretary of State for the Home Department to fully consider his asylum application".

On 5 November 1997 the appellant was told by the Benefits Agency that his income support had been stopped because the Home Office had informed them that he had been refused asylum. Between August 1997 and March 1998 further representations were made and the appellant was interviewed on 15 January 1998. On 15 May 1998, the Immigration and Nationality Directorate informed the appellant that the Secretary of State had refused the appellant's request for political asylum.

Tucker J. having refused leave to move for judicial review, the application was renewed before the Court of Appeal [1999] 2 W.L.R. 1 which decided to hear the substantive application. The Court of Appeal by a majority (Brooke L.J. and Sir John Balcombe, Hobhouse L.J. dissenting) dismissed the application on 6 March 1998.

On 5 January 1999 the Treasury Solicitor informed the Judicial Office of your Lordships' House that on 12 December 1998, following an appeal to a special adjudicator, the appellant was granted refugee status and that Regulation 21ZA of the 1987 Regulations operated, so that back-payment of benefits (from the date when they ceased to be paid until the date when refugee status was granted) fell to be paid at the urgent case rate applicable to a "person from abroad" under Regulations 70 and 71. They contended that the appeal was accordingly academic. The appellant replied that even though income support would be paid, there remained an issue as to whether housing benefit (which ceased to be paid between December 1997 and July 1998) would be paid by the relevant local authority. It was not clear that he would succeed, not having pursued a claim for housing benefit at that stage, and the matter ought to be dealt with on the present appeal, even though the claim had not been made to the local authority and the Housing Benefit Review Board. The appellant also contended that costs might be an issue and that his reputation had suffered from comments in the Court of Appeal and the use of his case in a White Paper on Asylum and Immigration published in July 1998 ( Fairer, Faster and Firmer , Cm. 4018) as an example of what happens if someone who does not give a full and accurate account on arrival in the United Kingdom claims income support.

Your Lordships asked for a summary of submissions from the parties as to which matters were still in issue. When the case was called on, it was accepted by the appellant(a) that his whole claim as to income support would be satisfied;

(b) that by 15 January 1999 it was agreed that he would be paid the housing benefit he claimed;

(d) that the parties agreed there should be no order as to costs save as to legal aid taxation of the appellant's costs; and

(e) that accordingly there was no live issue relating to the appellant's position.

Mr. Blake, Q.C., however, contended that the appeal should continue since, even if there was no longer a live issue between the parties, there was a question of general public importance as to when it can be said that an asylum claim is "determined" by the Secretary of State so that an applicant ceases to be an asylum seeker.

In Sun Life Assurance Company of Canada v. Jervis [1944] A.C. 111, Viscount Simon, L.C. said, at pp. 113-114:

In Ainsbury v. Millington (Note) [1987] 1 W.L.R. 379, 381 Lord Bridge of Harwich, with whom the other members of the House agreed, said, at p. 381:

Different considerations may arise in relation to what are called 'friendly actions' and conceivably in relation to proceedings instituted specifically as a test case. The instant case does not fall within either of those categories. Again litigation may sometimes be properly continued for the sole purpose of resolving an issue as to costs when all other matters in dispute have been resolved."

These cases, however, concern disputes between parties as to private rights--in Sun Life as to the terms of an insurance policy, in Ainsbury as to the parties' rights to the occupation of property initially held under a joint tenancy.

However, in Reg. v. Board of Visitors of Dartmoor Prison, Ex parte Smith [1987] Q.B. 106 where a prisoner was charged with an offence under the Prison Rules of doing gross personal violence to a Prison Officer, it was found by the Board of Visitors that there was no case to answer, but it was directed that a lesser offence of assault be preferred. On judicial review, the judge held that that direction was made without jurisdiction and prohibited the Board from inquiring into the assault charge. The prisoner was no longer at risk from further disciplinary proceedings. Despite opposition from the prisoner, the Court of Appeal ruled at p. 115:

In Reg. v. Secretary of State for the Home Department, Ex parte Abdi

[1996] 1 WLR 298

two Somalian nationals were refused asylum when they sought to challenge a decision rejecting their claim that to be sent to Spain would be contrary to the United Kingdom's obligations under the Geneva Convention of 1951. At page 302, I said:

Your Lordships heard the appeal.

My Lords,

I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v. Millington (and the reference to the latter in Rule 42 of the Practice Directions Applicable to Civil Appeals (January 1996) of your Lordships' House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.

I do not consider that this is such a case. In the first place, although a question of statutory construction does arise, the facts are by no means straightforward and in other cases the problem of when a determination is made may depend on the precise factual context of each case. In this very case, the first issue is expressed to arise "On the facts of this case"; the second issue concerns the question whether the Secretary of State had any discretion to record and rescind his decision and whether the discretion was exercised rationally and fairly in the instant case.

In the second place, Mr. Pannick, Q.C. on the basis of instructions from both the Home Office and the Department of Health and Social Security told us that only in a few cases has this question arisen. In Ex parte Karaoui (unreported), 11 March 1997 the issue was whether there was a record; the determination was quashed because there was no record. In Ex parte Bawa (unreported), 27 October 1997 the claim was accepted by the Home Office after the trial judge's decision. In two other cases, applications are being made for judicial review, but leave has not yet been given. The unusual facts of the present case do not seem to provide a good basis for the matter to be raised as a general principle, the particular lis having gone.

This was not brought as a test case and in my view these factors outweigh any possible advantages for the Legal Aid Board in dealing with this case, which has proceeded so far.

Moreover, pursuant to the White Paper published in 1998, it may be that the procedures to be followed will be reconsidered.

I would accordingly dismiss this appeal with no order as to costs save that there be legal aid taxation of the appellant's costs.

LORD MACKAY OF CLASHFERN

My Lords,

I have had the privilege of reading in draft the speech of my noble and learned friend, Lord Slynn of Hadley. I agree with him that this appeal should be dismissed on the terms he has proposed, for the reasons he has given.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Slynn of Hadley. For the reasons he has given I agree with him that this appeal should be dismissed on the terms he has proposed.

LORD STEYN

My Lords,

For the reasons contained in the speech of my noble and learned friend, Lord Slynn of Hadley, I would also make the order which he proposes.

LORD CLYDE

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley. For the reasons he has given I would also make the order which he proposes.

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