CIS/1773/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the Secretary of State’s appeal.  I set aside the decision of the Nottingham appeal tribunal dated 20 November 2006 and I substitute the decision the tribunal should have given: the claimant is not entitled to income support under her claim made on 13 April 2006.

REASONS

2.	I held an oral hearing of this appeal at the same time as the hearing in CH/2321/2007.  The Secretary of State was represented by Ms Emma Dixon of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions.  The claimant neither attended nor was represented. She had been deported shortly before the hearing and her representatives had withdrawn.  They raised the question of an adjournment but I have decided that it is not necessary to adjourn the case.  Her representatives, a law centre, have been acting for her until recently and have make written submissions in the case, although they are stronger on rhetoric than legal argument.

3.	The facts are not in dispute.  The claimant is a Turkish national who arrived in the United Kingdom on 13 October 2003 and claimed asylum and also support under Part VI of the Immigration and Asylum Act 1999.  Her claim for asylum was rejected on 30 December 2005 and she was told on 17 January 2006 that she had ceased to be entitled to support under Part VI of the 1999 Act.  However, she was granted further temporary admission to the United Kingdom under paragraph 21 of Schedule 2 to the Immigration Act 1971 on 17 March 2006 and, on an appeal to an asylum support adjudicator, she was granted, on 18 April 2006, support under section 4 of the 1999 Act on the ground that her mental health rendered her incapable of travelling abroad.

4.	Meanwhile, on 13 April 2006, she had claimed income support.  That claim was rejected on 18 May 2006 on the ground that the claimant had no right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland and so she could not be treated as habitually resident in any of those territories with the consequence that she was a “person from abroad” with an applicable amount of nil by virtue of regulation 21 of the Income Support (General) Regulations 1987 (S.I. 1987/1967).  She appealed.  On 20 November 2006, the appeal tribunal allowed her appeal on the ground that she was entitled to income support by virtue of Article 1 of the European Convention on Social and Medical Assistance (“ECSMA”) concluded in Paris on 11 December 1953 and to which both the United Kingdom and Turkey are parties.  The Secretary of State now appeals against the tribunal’s decision with the leave of a salaried tribunal chairman.

5.	Article 1 of ECSMA provides –

“Each of the Contracting Parties undertakes to ensure that nationals of the other Contracting Parties who are lawfully present in any part of its territory to which this Convention applies, and who are without sufficient resources, shall be entitled equally with its own nationals and on the same conditions to social and medical assistance (hereinafter referred to as “assistance”) provided by the legislation in force from time to time in that part of its territory.”

Article 2 makes provision as to the meaning of “assistance”.  There is no doubt that income support falls within the scope of ECSMA, although I observe that, notwithstanding Article 16, the United Kingdom’s entry in Annex I appears not to have been up-dated to reflect developments in domestic law since the Social Security Act 1986 came into force.  It was that Act that introduced income support and under which the 1987 Regulations were originally made (a point apparently overlooked by the claimant’s former representative in the argument advanced on page 147), although the relevant provisions of that Act has since been consolidated into the Social Security Contributions and Benefits Act 1992.  I also observe that it appears that no new declaration under Article 2(a)(ii) as to the meaning of “nationals” has been made to take account of the British Nationality Act 1981.

6.	The Secretary of State’s principal point is that the tribunal erred in treating Article 1 of ECSMA as creating rights that were enforceable under domestic law.  This submission is plainly right, as Mr Commissioner Mesher held in CJSA/4705/1999 at paragraph 24.  ECSMA records the agreement of the Contracting Parties but it does not itself give force to the agreement.  It requires the Contracting Powers to enact legislation conferring rights to benefit but it does not confer those rights itself.  In the United Kingdom, it is for Parliament to give effect to ECSMA through domestic legislation.  The Secretary of State takes the view that that has been done.

7.	It is not necessary for me to determine whether or not the Secretary of State is right to take the view that domestic legislation is compatible with ECSMA.  Domestic courts and tribunals usually have no grounds for entering into an inquiry as to whether or not effect has been given to an international treaty.  This is because, in the absence of legislation equivalent to the European Communities Act 1972 or the Human Rights Act 1998 which completely incorporate treaties into domestic law, a domestic court or tribunal has no power to compel the enactment of the necessary legislation, even if only subordinate legislation is required.

8.	Ms Dixon referred me to Regina v. Secretary of State for the Home Department, ex parte Brind [1991] 1 A.C. 696, in which the House of Lords declined to construe the Secretary of State’s statutory powers to issue directions to the British Broadcasting Corporation as being qualified by the European Convention of Human Rights (before that Convention was incorporated into domestic law) and so declined to consider whether the directions were incompatible with the Convention.  Lord Bridge of Harwich said –

“… it is already well settled that, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it.  Hence, it is submitted, when a statute confers upon an administrative authority a discretion capable of being exercised in a way which infringes any basic human right protected by the Convention, it may similarly be presumed that the legislative intention was that the discretion should be exercised within the limitations which the Convention imposes.  I confess that I found considerable persuasive force in this submission.  But in the end I have been convinced that the logic of it is flawed.  When confronted with a simple choice between two possible interpretations of some specific statutory provision, the presumption whereby the courts prefer that which avoids conflict between our domestic legislation and our international treaty obligations is a mere canon of construction which involves no importation of international law into the domestic field.  But where Parliament has conferred on the executive an administrative discretion without indicating the precise limits within which it must be exercised, to presume that it must be exercised within Convention limits would be to go far beyond the resolution of an ambiguity.  It would be to impute to Parliament an intention not only that the executive should exercise the discretion in conformity with the Convention, but also that the domestic courts should enforce that conformity by the importation into domestic administrative law of the text of the Convention and the jurisprudence of the European Court of Human Rights in the interpretation and application of it.  If such a presumption is to apply to the statutory discretion exercised by the Secretary of State under section 29(3) of the Act of 1981 in the instant case, it must also apply to any other statutory discretion exercised by the executive which is capable of involving an infringement of Convention rights.  When Parliament has been content for so long to leave those who complain that their Convention rights have been infringed to seek their remedy in Strasbourg, it would be surprising suddenly to find that the judiciary had, without Parliament's aid, the means to incorporate the Convention into such an important area of domestic law and I cannot escape the conclusion that this would be a judicial usurpation of the legislative function.”

9.	That approach must apply to regulation-making powers as much as to the exercise of the type of power under consideration in that case.  Thus, not only can a court not compel a minister to enact regulations to give effect to a treaty, it is also not permissible to find subordinate legislation to be ultra vires on the ground that it is incompatible with the United Kingdom’s international obligations.  The only response to Brind made by the claimant’s former representatives is to ask “what is the point in having treaties which give rights to persons from broad of whatever status, if they are not enforceable?”  The answer is that, unless the treaties otherwise provide, enforcement is a matter to be dealt with at an international level rather than in the domestic courts of one or other of the states concerned.

10.	There is a distinction to be drawn between the position in relation to ECSMA and the position in relation to the European Convention on Human Rights before its incorporation into domestic law, because the latter Convention at least established the European Court of Human Rights to issue authoritative rulings on the interpretation and application of the Convention to which domestic courts could have had regard.  Under ECSMA, there is no such body to which individuals may have recourse and it seems to me that the argument for regarding the terms of the ECSMA not to be justiciable in domestic courts is even more compelling than it was in relation to the European Convention on Human Rights before its incorporation.  Disputes as to the interpretation of ECSMA must be resolved between the Contracting Parties by negotiation or arbitration (see Article 20).  I am told that, in interpreting ECSMA, the United Kingdom Government has regard to advice given by the European Committee of Social Rights including, in relation to the interpretation of Article 1, advice given by the Committee in relation to Article 13(4) of the European Social Charter. 

11.	I accept, of course, that domestic legislation will, where possible, be construed so as not to conflict with the United Kingdom’s international obligations, but that task of construction is appropriate only where there is an ambiguity in the domestic legislation (see the judgment of Diplock LJ in Salomon v. Commissioners of Customs & Excise [1967] 2 Q.B. 116 at 143) and, I suggest, no ambiguity in the international treaty.  Neither of those conditions is met here and, moreover, the duty to construe legislation consistently with treaty obligations is weaker where the legislation was not enacted specifically to give effect to the treaty obligations in question (see the speech of Lord Neuberger in Boake Allen Ltd v. HMRC [2007] UKHL 25; [2007] 1 W.L.R 1386 at [51]).  In Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657; [2008] 1 W.L.R. 254 (also reported as R(IS) 8/07), the Court of Appeal referred to those cases when holding, in the context of regulation 21 of the 1987 Regulations, that EU citizens who did not have rights of residence under EU law could derive no assistance from ECSMA.

12.	As to domestic law, it is plain from Abdirahman that a right to reside is more than a mere right to be present.  Regulation 21 of the 1987 Regulations is expressed in general terms and, notwithstanding the arguments advanced before me in CH/2321/2007, it is quite impossible to imply an exception in relation to nationals of states that have ratified ECSMA.  It is simply wrong to assert, as the claimant’s former representatives have in this case, that the purpose of restricting entitlement to those with a right to reside in the United Kingdom was to limit entitlement in relation to those coming from the “A8 states” who acceded to the European Union in 2004.  Separate provision was made for them through the Accession (Immigration and Worker Registration) Regulations 2004 (S.I. 2004/1219).  The legislation introduced in 2004 had a much wider purpose and was not confined solely to those from within the EEA, although I accept that much of the memorandum published with a report of the Social Security Advisory Committee in Cm 6181 refers to EU citizens, which is no doubt because it was necessary to justify or explain the new legislation in terms of the rights of EU citizens.  As Ms Dixon submitted, had it been intended to confine the new legislation to EU citizens, or to exclude from its scope nationals of states that had ratified ECSMA, express provision to that effect would have been made.  The amendments made by the Social Security (Persons form Abroad) Amendment Regulations 2006 (S.I. 2006/1026), to which the claimant’s representatives also refer were needed to give effect to Council Directive 2004/38/EC, which came into force on 30 April 2006 and, in some instances, simply for clarification.  They made no difference to non-EU nationals.  I am satisfied there is no ambiguity in the domestic legislation.

13.	As to ECSMA, the Secretary of State argues that the tribunal erred in its construction of Article 1 on several grounds, among them being that it considered the claimant to be “lawfully present” in the United Kingdom on the authority of Szoma v. Secretary of State for Work and Pensions [2005] UKHL 64; [2006] 1 A.C. 564 (also reported as R(IS) 2/06), which concerned the construction of domestic law where the claimant was an asylum-seeker, whereas the present case concerns the construction of an international treaty where the claimant was a failed asylum-seeker so that, it is argued, different considerations arise.  I need not consider the arguments in detail; it is sufficient to state that it is at least arguable that the United Kingdom is not in breach of its obligations under ECSMA.

14.	For all these reasons, I am satisfied that the claimant derives no assistance from ECSMA.  For reasons I have given in CIS/1794/2007 (to be reported as R(IS) 3/08), I am satisfied that a person granted only temporary admission to the United Kingdom does not thereby acquire a right to reside in the United Kingdom and that the Secretary of State was right to reject the claimant’s claim for income support.  I allow his appeal.

	(signed on the original)	MARK ROWLAND
		Commissioner
		23 June 2008