THE  SOCIAL SECURITY COMMISSIONERS

Commissioner’s Case no:        CIS 4510 1998  

SOCIAL SECURITY ACTS  1992 - 1998

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

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Mr Commissioner David Williams

DECISION OF THE SOCIAL SECURITY COMMISSIONER 

1	I allow the appeal by the claimant.

2	The appeal was against the decision of the Harrow appeal tribunal on 12 November 1997. It was brought by leave of the Commissioner. The decision of the tribunal was that the claimant is not entitled to income support from and including 29 July 1996.

3	I set aside the decision of the tribunal. It is expedient that I make the decision that the tribunal should have made. My decision is:

	The claimant is entitled to claim income support under regulation 70 of the Income Support (General) Regulations 1987 as an asylum seeker from and including 29 July 1996. 

The case is referred to the Secretary of State for Social Security (“the Social Security Secretary”) for the claim to be considered in the light of this decision. 

4	I held an oral hearing of the appeal on 22 July 2000 in London. The claimant was represented by Mr Desmond Rutledge of the Free Representation Unit, and the Social Security Secretary was represented by Miss Anna Powick for the Office of the Solicitor to the Department of Social Security. I am particularly grateful to Mr Rutledge for the full research undertaken in presenting his case, and to both counsel for their help. I intend no discourtesy in not setting out at length their submissions on the wider issues that both considered might be raised in this case, but in dealing only with the narrow point on which I find this case rests. 

Background to the appeal

5	The key facts of this case have been established conclusively by a certificate given on behalf of the Principal Secretary of State for Foreign and Commonwealth Affairs (the Foreign Secretary) under section 4 of the Diplomatic Privileges Act 1964. The claimant was a diplomatic agent of the embassy of his country from notification on 23 Jan 1995 to termination on 24 July 1996.

6	On the morning of 24 July 1996 the claimant left his embassy and claimed political asylum in the United Kingdom. Political asylum was later granted to the claimant by the Secretary of State for Home Affairs (the Home Secretary), retrospectively to 24 July 1996. On 29 July 1996 the claimant claimed income support. That claim was turned down on the ground that the claimant had not claimed asylum at the time of his entry into this country. The tribunal found that the sole issue in the appeal was whether the claimant had applied for asylum on arrival in the country. Having considered regulation 70(3A) of the Income Support (General) Regulations 1987 (the Regulations), it upheld that decision.

8	In my view the tribunal and adjudication officer were wrong in their decisions because neither paid any attention to the provisions of the Diplomatic Privileges Act 1964  (the 1964 Act) about the status of the claimant as a diplomatic agent. For that reason, I set aside the decision of the tribunal as erroneous in law.     

Diplomatic Privileges Act 1964

9	The 1964 Act incorporates into United Kingdom law most of the Vienna Convention on Diplomatic Relations to which the United Kingdom (in common with almost all other states) is a party. Section 2 of the Act provides that the articles of the Convention set out in Schedule 1 to the Act “shall have the force of law in the United Kingdom”.

10	Article 31 of the Convention (in the Schedule) provides:

	A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall also enjoy immunity from its civil and administrative jurisdiction …[save for exceptions not relevant in this case] …”.

Article 32 (also in the Schedule) provides:

	The immunity of jurisdiction of diplomatic agents … may be waived by the sending state.

11	The 1964 Act is strengthened in its operation by section 8(3) of the Immigration Act 1971 (the 1971 Act), which provides:

	… the provisions of this Act relating to those who are not British citizens shall not apply to any person so long as he is a member of a mission (within the meaning of the Diplomatic Privileges Act 1964)…

12	Section 4 of the 1964 Act provides:

	If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact. 

As noted above, I was given a certificate under this section putting the status of the claimant beyond doubt up to and including 24 July 1996.

Claiming income support under regulation 70

13	The claimant claimed income support as an asylum seeker. The relevant regulation is regulation 70 of the Regulations. This provides for benefit in urgent cases for certain persons from abroad. To make a claim under that regulation, a claimant must show that he or she is within the definition of “person from abroad” in regulation 21(3) of the Regulations, and that he or she “is an asylum seeker for the purposes of paragraph (3A)”.

14	In the proceedings so far, it has been assumed, rather than determined, that the claimant was a “person from abroad”.  It was not immediately obvious that this was so as the claimant clearly does not come within most of the subparagraphs 9(a) to (j) of regulation 21(3). Mr Rutledge argued that the claimant was a person from abroad within paragraph 21(3)(g), as a person who:

	 has not had his immigration status determined by the Secretary of State.

15	As the claimant was not subject to any need to have any immigration status determined, and indeed was not subject to the relevant provisions of the 1971 Act while a diplomatic agent, I do not consider that this subparagraph applied to him at that time. It was suggested that it might apply to anyone who had not had their immigration status determined by the Home Secretary regardless of personal circumstances. But, as I pointed out at the hearing, this would have the consequence that most of the population of the United Kingdom would be “persons from abroad” notwithstanding their clear entitlement to be in the United Kingdom as British citizens. That wide interpretation would be patently absurd. The proper interpretation of regulation 21(3)(g), in my view, is to assume that it applies only to those whose immigration status requires determination, perhaps because of a request, during the period while the status remains undetermined. On that basis, it does not apply to the claimant until he ceased to be a diplomatic agent. But it does apply when that happened. After that, he was a person from abroad under paragraph 21(3)(j) read with 21(3)(g) because his immigration status came into question when his diplomatic status ended, and his asylum application remained undetermined at the relevant time. 

16	The difficulty in this case lies, however, in the application of regulation 70. Mr Rutledge argued strenuously for his client that the claimant should be regarded as someone who claimed asylum on his arrival in the country from outside the Common Travel Area (regulation 70(3A)(a). For this purpose I was asked to assume that the claimant “arrived” in the country when his diplomatic status ended. Miss Powick resisted that interpretation and argued that I could look only at the actual physical arrival.

17	I found neither argument convincing. In my view, the answer is not to be obtained by trying to twist the words of regulation 70, or regulation 21, to fit this unusual case. It lies in recognising that those who drafted and approved the Income Support (General) Regulations 1987 made no provision for a diplomatic agent claiming political asylum. As neither party had heard of any other such claim, and Commissioners appear not to have considered any such case previously, that is perhaps not surprising. But the claimant’s entitlement to be treated as a diplomatic agent until that status ceased derives directly from the Diplomatic Privileges Act 1964. As Miss Powick conceded, if there is a clash between the 1964 Act and the Regulations, it is the 1964 Act that prevails. In my view there is such a clash, and I cannot properly give effect to the status of the claimant up to  24 July 1996 if I look only at the terms of the Regulations.  

18	The provisions of the Regulations must be given effect in such a way as recognises the claimant’s status while a diplomatic agent. I cannot go behind that status at any time before it ended. I therefore find it wrong in principle to consider what might or might not have happened when the claimant arrived physically in the United Kingdom.  That is not a concern of anyone other than the Foreign Secretary. But when the Regulations were later first applied to the claimant, he had already claimed asylum. The Foreign Secretary’s certificate, read with the Home Secretary’s acceptance of the claim for political asylum, show together that the claimant had claimed asylum before his diplomatic status had technically ended.  

19	On those facts, it is sufficient to accept that, for the purposes of the Regulations, the claimant had already claimed political asylum when the Regulations first applied to him. Exceptionally, there was no occasion when he needed to apply after that time, and no issue needing resolution under regulation 70(3A)(a) or (aa). In order to ensure that the provisions of the 1964 Act are fully respected, the claimant must be treated as a person from abroad who is an asylum seeker within the scope of regulation 70(3)(b). If it is necessary to fit that within the words used by regulation 70, I decide that the “purposes of paragraph 3A” must be taken to include all properly made and timeous applications for asylum including an application by someone making that application while under the protection of the Diplomatic Privileges Act. My formal decision to that effect is in paragraph 3.   

									David Williams 
									Commissioner 

									10 August 2000