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Session 2002 - 03
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Judgments - Regina v Secretary of State for the Home Department and another (Respondents) ex parte Anufrijeva (FC) (Appellant)


SESSION 2002-03
[2003] UKHL 36
on appeal from: [2002] EWCA Civ 399






Secretary of State for the Home Department and another (Respondents) ex parte Anufrijeva (FC) (Appellant)



The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Hoffmann

Lord Millett

Lord Scott of Foscote




Regina v. Secretary of State for the Home Department and another (Respondents) ex parte Anufrijeva (FC) (Appellant)

[2003] UKHL 36


My Lords,

    1. The issue in this appeal is whether income support should have been paid to Nadezda Anufrijeva (the appellant) as an asylum seeker between 10 December 1999 and 25 April 2000. The answer depends on whether, on or before the earlier of those dates, she had ceased to be an asylum seeker. That in turn depends on whether, on or before the earlier of the dates, her claim for asylum had been "recorded by the Secretary of State as having been determined (other than on appeal)" within the meaning of regulation 70(3A)(b)(i) of the Income Support (General) Regulations 1987 (SI 1987/1967) ("the Regulations").

    2. On 31 August 1998 the appellant, then aged 20, arrived at Gatwick Airport with her father and several other members of her family. They were Lithuanians of Russian origin and had flown to this country from Lithuania. Her father claimed asylum for himself and other dependent members of the family. The appellant claimed asylum on her own behalf. It seems clear (and it has not been questioned) that her claim for asylum was duly recorded by the Secretary of State as having been made.

    3. On 4 September 1998 the appellant claimed payment of income support. This is an income-related benefit governed by Part VII of the Social Security Contributions and Benefits Act 1992. The amount payable to a "person from abroad" as defined in regulation 21(3) of the Regulations is ordinarily nil, entitling such person to no payment. But Part VI of the Regulations made special provision for some urgent cases, in which there was an entitlement to payment of 90% of the amount normally payable to those entitled. The class of urgent case relevant for present purposes is persons from abroad who were asylum seekers for purposes of paragraph (3A) of regulation 70 of the Regulations. That paragraph provided (so far as relevant):

    "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 [1951 Geneva Convention and the 1967 Protocol relating to the Status of Refugees] 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 appellant was accepted as falling within that description. Income support at the applicable rate (90% of the normal rate) was accordingly paid to her with effect from 4 September 1998. It continued to be paid for some 14 months until, with effect from 9 December 1999, payment was stopped.

    4. At some time after her arrival in the United Kingdom the appellant was interviewed by an immigration officer concerning the merits of her asylum claim. Decisions on asylum, however, unlike decisions on leave to enter, are taken not by immigration officers but by the Secretary of State. This long-standing rule is now found in rule 328 of the Statement of Changes in Immigration Rules (HC 395) ("the Rules") laid before Parliament in accordance with section 3(2) of the Immigration Act 1971 as a statement of "the practice to be followed" in the administration of the Immigration Acts. Rule 328 provides:

    "All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees. Every asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer for determination by the Secretary of State in accordance with these Rules."

The immigration officer's record of the interview with the appellant has not been produced in these proceedings, but it was produced to and considered by an adjudicator who heard appeals by the appellant and her father in December 2000-January 2001 (Appeal nos CC/17722/00 and CC 15675/00, March 2000, paragraph 75) and it seems clear that the record was sent to the officials responsible for making asylum decisions on behalf of the Home Secretary to enable them to make that decision.

    5. On 20 November 1999 the responsible official in the Integrated Casework Directorate of the Home Office made a note to the following effect in the file relating to the appellant's asylum claim:

    "This woman has cited numerous mishaps throughout the 1990s and puts her woes down to an encounter her father had with a drunken solicitor in 1991. There is no credibility in any of this and no Convention reason anyway.

    For the reasons given in the letter aside, this applicant has failed to establish a well founded fear of persecution. Refusal is appropriate. Case hereby recorded as determined. Certified under 5(4)(a)."

The terms of this note, and the certification of the appellant's asylum claim under paragraph 5(4)(a) of Schedule 2 to the Asylum and Immigration Appeals Act 1993 as not showing a fear of persecution for a Convention reason, make plain that in the opinion of the Home Office the claim was hopeless. This was not the view later taken by the adjudicator who, although rejecting the asylum claim, believed the appellant's account, recommended that the Home Secretary consider granting her exceptional leave to remain and declined to uphold the certificate under paragraph 5(4)(a). But the Home Office did not regard the appellant's claim as in any way borderline, as is evident from the terms of the "letter aside": this was a draft letter setting out the Home Secretary's reasons for refusing the asylum claim which was dated 20 November 1999, the same date as the file note, but was not at that stage sent to the appellant or her solicitors.

    6. Upon the making of the file note just described, the Home Office considered (whether rightly or wrongly, which is the issue in this appeal) that the appellant was no longer an asylum seeker and so no longer entitled to payment of income support. As already shown, the appellant's entitlement to income support depended on her being an asylum seeker within the definition in paragraph (3A) of regulation 70 of the Regulations. But that paragraph also provided:

    "For the purposes of this paragraph, a person -

    . . .

      "(b) ceases to be an asylum seeker -

        (i) in the case of a claim for asylum which, on or after 5th 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."

The Home Office treated the appellant as ceasing to be an asylum seeker on 20 November 1999 and communicated its decision to the Benefits Agency, responsible for paying income support to the appellant, some days later. That agency ceased to pay income support to the appellant with effect from 9 December 1999 and on the same day wrote to her asking for the return of her income support order book and directing her to cash no further orders. A week earlier the London Borough of Southwark had written to the solicitors acting for the appellant and her father referring to refusal of "the family's" asylum application and indicating that there was no longer an entitlement to housing assistance. The appellant's solicitors gathered from the Benefits Agency and the local authority that her (and her father's) asylum claims had been refused, and on 23 December 1999 the Benefits Agency confirmed that it had been told by the Home Office that her asylum claim had been refused on 20 November and that payments of income support had been stopped with effect from 9 December. It is, however, a very regrettable feature of this case that the appellant was not informed directly that her asylum claim had been refused or when, was given neither reasons for the refusal nor any promise that reasons would be given at a later date, and was not told that her income support payments were to be stopped or why or when.

    7. Upon the Home Secretary's determination (or purported determination) of the appellant's asylum claim, responsibility for resolving her immigration status returned to the immigration officer at Gatwick. Had the Home Secretary decided to grant asylum and had the appellant not yet received leave to enter, the immigration officer would have granted limited leave to enter pursuant to rule 330 of the Rules. But rule 331 provides:

    "If a person seeking leave to enter is refused asylum, the Immigration Officer will then resume his examination to determine whether or not to grant him leave to enter under any other provision of these Rules. If the person fails at any time to comply with a requirement to report to an Immigration Officer for examination, the Immigration Officer may direct that the person's examination shall be treated as concluded at that time. The Immigration Officer will then consider any outstanding applications for entry on the basis of any evidence before him."

    8. In order to discharge the duty under this rule, the immigration officer at Gatwick wrote to the appellant on 28 November 1999, inviting her to attend for interview there on 11 January 2000. At this interview, had it taken place, it is likely that the appellant would have been refused leave to enter and would have been handed the letter of 20 November 1999 setting out the Home Secretary's reasons for refusing asylum. Rule 333 of the Rules prescribed the procedure to be followed:

    "A person who is refused leave to enter following the refusal of an asylum application will be provided with a notice informing him of the decision and of the reasons for refusal. The notice of refusal will also explain any rights of appeal available to the applicant and will inform him of the means by which he may exercise those rights . . . The applicant will not be removed from the United Kingdom so long as any appeal which he may bring or pursue in the United Kingdom is pending."

At the applicant's request the interview arranged for 11 January 2000 was deferred to 7 March 2000, but the appellant (unable, as she claimed, to afford the train fare) did not attend. Nor, for the same reason, did she attend a further interview arranged for 17 April. That led the immigration officer to give her a written notice of refusal of leave to enter. The notice was dated 18 April 2000 but was sent to her on 25 April. At the same time he sent to the appellant the letter of 20 November setting out the Home Secretary's reasons for refusing asylum. Copies of these documents were sent to her solicitors on the same date. It is common ground that the appellant would not on any showing have been entitled to income support after 25 April 2000, unless an appeal against the refusal of asylum had succeeded, in which case regulation 21ZA of the Regulations would have entitled her to retrospective payment.

    9. The appellant unsuccessfully challenged the refusal of her asylum claim before an adjudicator, was refused permission by the Immigration Appeal Tribunal to appeal against that decision and applied unsuccessfully for judicial review of that refusal: [2002] EWHC Admin 383. She was also refused permission to apply for judicial review of the Home Secretary's refusal of leave to enter: [2002] EWHC Admin 600. In the present proceedings she sought judicial review of two decisions: the Home Secretary's decision to treat her asylum claim as having been refused on 20 November 1999; and the Secretary of State for Social Security's decision to withdraw her income support benefit on 9 December 1999. Her application was heard by Sir Christopher Bellamy QC sitting as a deputy judge: in a detailed and careful reserved judgment given on 25 October 2001 he dismissed the application, recognising considerable force in the submissions made on her behalf but holding himself bound to reject it by the Court of Appeal's decision in R v Secretary of State for the Home Department, Ex p Salem [1999] QB 805. In a judgment of the court delivered by Schiemann LJ, the Court of Appeal (Schiemann, Hale and Sedley LJJ) also held itself bound by Salem to dismiss the appeal but saw force in her arguments and gave her permission to appeal to the House: [2002] EWCA Civ 399.

    10. In opening the appeal, Mr Drabble QC for the appellant submitted, first, that it was not open to the Home Secretary to record a claim as determined on a date earlier than that on which it had in fact been determined. This is plainly so. Regulation 70(3A)(b)(i) provides that a person ceases to be an asylum seeker on (relevantly) the date on which it is recorded by the Secretary of State that his claim for asylum has been determined otherwise than on appeal. An event cannot be "recorded" for purposes of the sub-paragraph unless it has taken place. Thus on 20 November 1999 the responsible official could validly record the appellant's asylum claim as determined only if it had been determined. The plain intention of the provision was that income support should be payable to a qualifying asylum seeker so long as the Home Secretary's determination of the claim was pending but not once he had determined the claim and his determination had been recorded.

    11. Mr Drabble's second main submission was based on rule 348 of the Rules which at the material time provided:

    "Special provisions governing appeals in asylum cases are set out in the Asylum and Immigration Appeals Act 1993, the Asylum and Immigration Act 1996 and the Asylum Appeals (Procedure) Rules 1996. Where asylum is refused the applicant will be provided with a notice informing him of the decision and of the reasons for refusal. At the same time that asylum is refused the applicant may be notified of removal directions, or served with a notice of the Secretary of State's intention to deport him, as appropriate. The notice of refusal of asylum will also explain any rights of appeal available to the applicant and will inform him of the means by which he may exercise those rights."

This rule, it was argued, must be read with regulation 70(3A)(b)(i). It governs the steps to be taken when asylum is refused, requiring provision of a notice informing the applicant of the refusal and the reasons for it, and also the giving of information about the applicant's right of appeal. The rule is quite inconsistent with an uncommunicated refusal of asylum, recorded only in a departmental file. Not until the steps required by the rule have been accomplished has an asylum application been refused or determined adversely to the applicant. Thus the Home Secretary could not, on 20 November 1999, validly record an adverse determination which had yet to be made.

    12. There are, in my opinion, a number of reasons why this argument cannot be accepted. First, the language of regulation 70(3A)(b)(i) is not in any way ambiguous. It defines a date by reference to the recording by the Secretary of State of the claim for asylum as having been determined. It makes no reference to notification of the claimant. The reference to "recorded" is, as Hobhouse LJ pointed out in Salem [1999] QB 805, 812,

    "a formal criterion which must be applied by looking at the records kept by the Secretary of State. It is used in contrast and contradistinction to any concept of notification."

Although the Court of Appeal was divided on the outcome in Salem, there was no disagreement on this point. Secondly, the absence of reference to notification in regulation 70(3A)(b)(i) cannot be treated as inadvertent, since in regulation 21ZA of the Regulations, inserted by amendment later in the same year as paragraph (3A), express reference was made in paragraphs (1) and (3) to notification of the asylum claimant that he had been recorded as a refugee. In section 6 of the Asylum and Immigration Appeals Act 1993 (since repealed but re-enacted) it was similarly provided that

    "During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom."

Parliamentary draftsmen have no difficulty in distinguishing between the making of a determination or decision and giving notice of it to the party affected. Thirdly, there are compelling practical reasons why regulation 70(3A)(b)(i) should not have provided for notification. As already noted in paragraph 7 above, the Home Secretary's decision on asylum is the first stage in a two-stage process in which, under rules 330 and 331, the second stage is performed by the immigration officer. Where the Home Secretary's decision is to grant asylum, the immigration officer's role may be something of a formality. But where the Home Secretary's decision is to refuse asylum, the immigration officer must nonetheless consider whether leave to enter should be given. Thus the Home Secretary's decision on asylum, even if favourable, does not finally resolve the applicant's immigration status, and if it is adverse it gives rise of itself to no ground of appeal, since under section 8 of the 1993 Act (since repealed but re-enacted) an appeal lay only against the refusal of leave to enter and not against the refusal of asylum as such. Rule 348 is directed to the last formal stage of the immigration officer's involvement, as evidenced by the references to removal directions and notice of intention to deport. The Home Secretary's decision on asylum must necessarily have come earlier.

    13. A further ground for rejecting Mr Drabble's second submission is found in consideration of the perceived mischief at which regulation 70(3A)(b)(i) was directed. The provisions contained in the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 (SI 1996/30) were the subject of a statement made by the Secretary of State to the Social Security Advisory Committee in accordance with section 174(2) of the Social Security Administration Act 1992. In this he recorded that in recent years the number of asylum applications made in the United Kingdom had increased very sharply, both absolutely and proportionately in relation to other countries. Well over 90% of those claiming were found not to be genuine refugees. Most of these were economic migrants, attracted to this country by the ready availability in this country of benefits which were relatively generous, in comparison both with wages in the applicants' countries of origin and with benefits available in some other European countries. The availability of such benefits during the process of appeal following initial rejection of an asylum claim provided a further inducement, since a high proportion of unsuccessful applicants appealed, although only 4% of appeals succeeded. The number of applicants and appellants made for further delay and, inevitably, greater cost to the taxpayer. The proposed solution (paragraph 57 of the statement) was to withdraw benefits from "asylum seekers who have been found by the immigration authorities not to be refugees" and also from those claiming asylum otherwise than on arrival in the country. In R v Secretary of State for Social Security, Ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 the Court of Appeal, by a majority (Neill LJ dissenting), held the 1996 Regulations to be ultra vires on the ground (per Simon Brown LJ, page 293) that

    "Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution."

Parliament's response was to enact section 11 of the Asylum and Immigration Act 1996, which provided in subsection (1):

    "Notwithstanding any enactment or rule of law, regulations may exclude any person who has made a claim for asylum from entitlement to any of the following benefits, namely -

      (a) income support . . ."

Regulation 70(3A)(b)(i) applied to asylum applicants whose claims were granted by the Home Secretary as well as those whose claims were refused, but the latter were expected to be far more numerous. (In an earlier explanatory memorandum submitted to the Advisory Committee reference had been made, in paragraph 12, to "ending the benefit entitlement of all asylum applicants at the point where they receive a negative decision from the Home Office" and, in paragraph 17, to removing entitlement "at the point where the initial decision is made by the immigration authorities that the applicant is not a refugee and should not be granted exceptional leave to remain". This language was not, however, repeated in the Secretary of State's later statement and is not to be found in the Regulations as amended in 1996). To read regulation 70(3A)(b)(i) as intended to deny income support to an unsuccessful asylum applicant from the day that the Home Secretary's decision to refuse asylum was recorded, no matter how long it might thereafter take the immigration officer finally to resolve the applicant's immigration status, is not to defeat but to give effect to what I regard as a clear legislative intention. It is not of course for the House, sitting judicially, to express any view on the merits of this legislation. Mr Drabble pointed out that although a very small percentage of those claiming asylum were found to be refugees, a much larger number were granted exceptional leave to remain.

    14. Mr Drabble's second major submission was that the statutory scheme imposed a public law duty on the Home Secretary to notify the appellant of the asylum decision, that a decision only recorded in an uncommunicated file note could not be other than provisional, since it could be altered at any time before notification was given to the appellant, and that accordingly there was no determination for purposes of regulation 70(3A)(b)(i) until 25 April 2000. This submission drew on the revulsion naturally felt for an official decision, taken privately, recorded in an undisclosed file and not communicated to the person to whom the decision relates. This somewhat Kafkaesque procedure was to some extent mitigated in this case by the fact that the appellant and her solicitors learned of the decision, although indirectly, relatively soon after it was made, that she would have received formal notice of the refusal with reasons two months earlier than she did if she had not cancelled the meeting fixed for 11 January 2000 and that her right of appeal would not have arisen until she had been refused leave to enter even if notice of the asylum decision had been given earlier. This is, however, an unhappy feature of the case and it is reassuring to learn that the practice has been changed.

    15. I would readily accept that the Home Secretary was subject to a public law duty to notify the appellant of his decision on her asylum application and, if it was adverse, his reasons for refusing it. Such an obligation is expressed explicitly in rule 348 of the Rules and would in any event be implied. But there is inevitably, in a written procedure, some gap between the making and notifying of a decision. Rule 348 prescribes no time limit. Any implied duty would be to give notice within a reasonable time. Failure to give notice within a reasonable time would be a breach of the Home Secretary's public law duty but would not necessarily nullify or invalidate his decision. In any event, it was not argued that notice of the Home Secretary's reasons was not given within a reasonable time.

    16. Sir Christopher Bellamy QC cited Racke v Hauptzollamt Mainz (Case 98/78) [1979] ECR 69, para 15, for this proposition:

    "A fundamental principle in the Community legal order requires that a measure adopted by the public authorities shall not be applicable to those concerned before they have the opportunity to make themselves acquainted with it."

Reference was also made to Opel Austria GmbH v Council of the European Union (Case T-115/94) [1997] ECR II 39, para 124. Both these cases, however, concerned Community regulations, and even so it was recognised that there could exceptionally be departures from the principle (see Racke, para 20). I do not think this principle can be readily applied in a domestic context to an official decision which, although undoubtedly affecting the rights of the individual, calls for no compliance by that individual and exposes him or her to no penalty. No domestic authority was cited to support such a rule, which would in any event be overridden by what I have found to be a clear legislative intention that payment of income support should stop on the day the Home Secretary's decision is recorded, irrespective of notification to the claimant.

    17. I would accept that, to be a determination within the meaning of regulation 70(3A)(b)(i), a decision must have a sufficient quality of finality about it. There is no room for what Hobhouse LJ in Salem [1999] QB 805, 823, called "the undeterminative determination". In that case, however, all members of the court agreed (per Brooke LJ, page 824)

    "that as a matter of statutory construction, the asylum seeker's right to income support in a favoured category of 'persons from abroad' stops immediately on the date the Secretary of State records his determination of the claim."

The issue which divided the court was whether the Home Secretary had made a determination in May 1997, when an internal record of refusal was made. Hobhouse LJ, dissenting, held that there had been no determination at that date because later correspondence was wholly inconsistent with the Home Secretary having already made a determination. The majority (Brooke LJ and Sir John Balcombe) held that the Home Secretary had made a determination in May when he was recorded as having done so, even though he continued to be willing to receive representations bearing on the applicant's claim for asylum. It is unnecessary to resolve that difference of opinion, which turned very largely on how the exchanges between the parties were properly to be understood. The facts here permit no such difference of opinion. As pointed out in paragraph 5 above, the Home Office regarded this (wrongly, as the adjudicator held) as a very clear case. Relatively prompt steps were taken to stop the payment of benefit and the provision of housing assistance and to instruct the immigration officer to resume the examination. Only with reluctance did the immigration officer agree to postpone the meeting arranged for 11 January 2000. At no stage did the Home Secretary or his officials invite or indicate willingness to consider further submissions on the appellant's asylum claim, and nothing suggests that they had second thoughts about the correctness of its rejection.