PLH                                                              Commissioner's Files:  CIS 4727 & 4728/01

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

	Claims for:	Income Support
Appeal Tribunal:	Edmonton 
Tribunal case ref:	U/42/152/2001/00012 & 00013
Tribunal date:	29 March 2001
Reasons issued:	13 August 2001

1.	These are two appeals lodged on identical grounds on behalf of two young men of Kurdish origin who arrived in this country from Turkey on 19 March 2000, against the decisions of Mr P E Sayer, the tribunal chairman sitting alone at Edmonton on 29 March 2001, that they were not entitled to income support on the claims they each made on 21 July 2000.  
2.	Each case depended entirely on the appellant’s immigration status and the consequences of this under the legislation restricting entitlement to income support and other means‑tested benefits for persons from abroad.  The appeals were originally pursued on behalf of the appellants by solicitors seeking in particular to challenge the chairman’s decision that they were not persons who had made asylum applications “on arrival” nor were they “lawfully present” in the United Kingdom so as to get within an exempted category under paragraph 4 of Part I of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 SI No. 636, and were thus excluded from income support under section 115 Immigration and Asylum Act 1999 as persons subject to immigration control.  
3.	I gave leave to appeal for the arguments on the latter point in particular to be advanced further, but after the parties’ written observations had been concluded and a request for an oral hearing made with the intention of instructing Counsel, the appellants’ solicitors informed the Commissioners’ office that they no longer had instructions and were no longer in contact with the appellants.  In those circumstances a further opportunity was given to each appellant personally, by direction of the Legal Officer, to make any further submissions he wished on the points of law and the legal authorities relied on by the Secretary of State.  No response has been received from either of them and I now proceed to determine each appeal, which I am satisfied can be properly disposed of without the need for any oral hearing.  
4.	Each of the claimants is a young single man now aged 20, who according to the facts found by the tribunal was caught by the immigration authorities in the port area at Dover on 19 March 2000, concealed in the back of a truck which had previously arrived there on a continental ferry.  There was a dispute of fact between them and the immigration authorities over whether their discovery took place before or after the truck passed through the immigration control point, and whether they had made any application for asylum in this country upon being discovered: it was beyond dispute that they had not done so before.  On this the tribunal chairman rejected the appellants’ evidence as not credible and found as a fact that neither had made any application for asylum in this country on 19 March 2000, the day of their arrival. Apart from anything else, there was no satisfactory documentary or other evidence of the making of any such application or of its being recorded by the Secretary of State as required by the former regulation 70(3A) Income Support (General) Regulations 1987 SI No. 1967.  
5.	He then proceeded to consider the documentary evidence of the appellants’ immigration status.  This showed that neither had any leave to enter the United Kingdom but each had only a notice of temporary admission as a person subject to detention under the Immigration Act 1971, who instead of remaining in actual detention was required to reside at a stated address and report himself to an immigration officer at a certain time.  Those notices (pages 57, 58 of the two appeal files) stated specifically that 
“Although you have been temporarily admitted, you remain liable to be detained.  You have NOT been given leave to enter the United Kingdom within the meaning of the Immigration Act 1971”.  
6.	On that basis the tribunal chairman held, following as he said the Commissioner’s decision in case R(SB) 25/85, that neither appellant was “lawfully present” within the United Kingdom and in consequence they did not fall within any of the exceptions in Part I of the Schedule to the Immigration and Asylum Amendment Regulations cited above.  Accordingly he confirmed the Secretary of State’s decision they were excluded by the Immigration and Asylum Act 1999 from all income support on the claims made on 21 July 2000.  
7.	Insofar as the appeals are based on a challenge to the tribunal chairman’s findings of fact about whether a claim for asylum was properly made by each of the appellants on arrival in this country on 19 March 2000, they must in my judgment fail. The facts about what actually happened at the port were of course for the tribunal hearing the evidence to decide; and the chairman was entitled to reject as incredible the oral evidence given to him by the claimants through an interpreter that they had made asylum applications on arrival, and to accept instead the categoric evidence of the Home Office that they had not, and were clandestine illegal entrants only detected on a search carried out after immigration control (see pages 57-61).  On that basis he was clearly justified in his conclusion that they had not shown themselves to be asylum seekers within the former regulation 70(3A), or the corresponding transitional protection in the 2000 amending regulations cited above for certain asylum seekers arriving before 3 April 2000 when regulation 70(3A) was repealed: see amending regulations 3 and 12.  
8.	The alternative ground of appeal, based on a claim that the appellants are within the exempted class in paragraph 4 of Part I of the Schedule to the 2000 Amendment Regulations of persons “lawfully present in the United Kingdom” who are nationals of states that have ratified the European Convention on Social and Medical Assistance or the Council of Europe Social Charter, is in my judgment equally ill‑founded.  Turkey is such a state but someone who has not been given any form of leave to enter the United Kingdom, and has only a notification of temporary admission as an illegal entrant subject to detention, is not for this purpose a person “lawfully present” in the United Kingdom at all:  see R v Secretary of State ex parte Bugdaycay [1987] AC 514; Kaya v London Borough of Haringey and Department for Social Security [2001] EWCA Civ 677 (CA 1 May 2001), which are in my judgment indistinguishable and dispose of the position of the appellants in the present two cases.  
9.	For those reasons, I dismiss each of these appeals and confirm the decisions below that the appellants had no entitlement to income support.

(Signed)
P L Howell
Commissioner
11 October 2002