R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants  4 All ER 385,  1 WLR 27529 HLR 129 (CA)
SIMON BROWN LJ: In recent years the number of persons seeking asylum in the United Kingdom has risen significantly, both in absolute terms and in relation to the rest of Western Europe. Of those applying, only some 25% are ultimately found to be genuine refugees: 4 to 5% as strictly defined by the Convention relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1954); Cmd 9171) (as amended by the 1967 Protocol (New York, 31 January 1967; TS 15 (1969); Cmd 3906); some 20% being granted exceptional leave to remain as, for example, fugitives from civil war or torture for a non-1951 convention reason, the borderline between the two categories being often a very fine one. The 75% whose claims fail are regarded as economic migrants. With the numbers now applying, the time taken to resolve their claims is inevitably too long and the cost of all this to the taxpayer is enormous.
To speed up the process of decision-making and to reduce the expenditure on benefits, the respondent Secretary of State for Social Security made the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996, SI 1996/30, which came into force on 5 February 1996. What in essence the 1996 regulations do is to remove all entitlement to income-related benefit from two particular categories of asylum seeker -- those who submit their claims for asylum otherwise than immediately upon arrival in the United Kingdom (subject to a limited exception where the Home Secretary makes what is called an 'upheaval declaration'), and those whose claims have been rejected by the Home Secretary but who then appeal to the independent appellate authorities. The Secretary of State's intention is to discourage economic migrants from making and pursuing asylum claims. This, in turn, will speed up the system to the advantage of genuine refugees. All this is expected to save the taxpayer some £200m pa.
No one could dispute the desirability of these aims. There is, however, a problem. A significant number of genuine asylum seekers now find themselves faced with a bleak choice: whether to remain here destitute and homeless until their claims are finally determined, or whether instead to abandon their claims and return to face the very persecution they have fled.
The appellants' case, in essence, is that the 1996 regulations are in the result ultra vires. The enabling power, widely drawn though it is, cannot, they submit, have been intended to permit this degree of interference with statutory rights under the Asylum and Immigration Appeals Act 1993 and/or with fundamental human rights. The argument failed before the Divisional Court on 26 March 1996. It is now renewed before us.
THE ASYLUM REGIME....
Until the 1993 Act, there was no primary immigration legislation dealing with asylum seekers. Rather, our 1951 convention obligations were acknowledged in the various immigration rules made under the Immigration Act 1971. These prohibited action not in accordance with the 1951 convention and provided the skeleton of a determination procedure in accordance with guidance contained in the UNHCR Handbook. The 1993 Act put into statutory form our recognition of the primacy of the 1951 convention (s 2) and our obligation of non-refoulement under art 33 of the 1951 convention. As to this, s 6 provides:
'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.'
Section 8 and paras 7, 8 and 9 of Sch 2 to the 1993 Act give parallel protection until the end of the appeal process. In short, the 1993 Act provides determination procedures, protection from refoulement, and appeal rights to all categories of asylum seekers, the appeal procedures being part of the overall asylum determination process: see Sandralingham v Secretary of State for the Home Dept, Rajendrakumar v Immigration Appeal Tribunal  Imm AR 97 at 112:'. . . in asylum cases the appellate structure as applied by the 1993 Act is to be regarded rather as an extension of the decision-making process.'
It is further relevant to note that all asylum seekers are treated alike, subject only to this exception: there is provision in the 1993 Act (see para 5 of Sch 2) whereby the Home Secretary can certify that a claim is without foundation either as not raising any 1951 convention issue or as being otherwise frivolous or vexatious. This procedure, conveniently called the 'without foundation procedure', is typically used for what are known as 'safe third country cases'. When used, there are expedited time limits at all stages of the procedure and, if the special adjudicator agrees with the Secretary of State's certificate, there is no further appeal to the Immigration Appeal Tribunal.....
The principal (consolidating) Act now dealing with the criteria for eligibility for state benefits is the Social Security Contributions and Benefits Act 1992. Part VII (ss 123 to 137) deal with income-related benefits -- income support, housing benefit, family credit and council tax benefit -- which together are designed to ensure a basic minimum provision for those not entitled to contributory benefits (such as unemployment or sickness benefit).....
The regulations impugned were made in the exercise of powers conferred in particular by the following provisions in the 1992 Act:
'135.(1) The applicable amount, in relation to any income-related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit.
(2) The power to prescribe applicable amounts conferred by subsection (1) above includes power to prescribe nil as an applicable amount . . .
137 . . . (2) Regulations may make provision for the purposes of this Part of this Act -- (a) as to circumstances in which a person is to be treated as being or not being in Great Britain . . .
175 . . . (3) . . . any power under this Act to make regulations . . . may be exercised -- (a) either in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes of case . . .'.
Regulation 8 of the 1996 regulations amends regs 21 and 70 of the 1987 regulations so as to remove entitlement to urgent cases payments from all asylum seekers, save those who submit a claim for asylum on arrival in the United Kingdom and, even then, entitlement ceases on the date when the Home Secretary records the claim to have been determined by him or abandoned. The only exception to this is when the Home Secretary makes an 'upheaval declaration' -- when, that is, an in-country claim is made within three months of the Home Secretary making a declaration that the country of which the claimant is a national is subject to such a fundamental change in circumstances that he would not normally order the return of a person to that country. The rest of this judgment will take this 'upheaval declaration' exception as read.....
It follows that from 5 February 1996 two main categories of asylum seeker are wholly excluded from benefit: (1) in-country (as opposed to on-arrival) claimants; and (2) all claimants pending appeal from an adverse determination of the Home Secretary. These I shall call 'the deprived asylum seekers'.
In the event of homelessness, the deprived asylum seekers are peculiarly disadvantaged. Not, of course, if they have a priority need for accommodation (as do roughly a third who have dependent children): then the housing authority is obliged to house them, even though they can pay no housing benefit. (The Secretary of State has now reached agreement with local authorities to pay them a substantial part of the costs involved and thereby bought off judicial review challenges to the 1996 regulations, which the authorities themselves had instituted.) But local authorities have refused to accept that asylum seekers deprived of all benefits have a priority need on the grounds of being 'vulnerable' for 'other special reason' within the meaning of s 59(1)(c) of the 1985 Act -- this being a separate issue raised before us on an immediately following appeal.
If the local authorities are correct in that view, it follows that those of the deprived asylum seekers not otherwise in priority need face the following situation.
(1)They have no access whatever either to funds or to benefits in kind.
(2) They have no accommodation and, being ineligible for housing benefit, no prospect of securing any.
(3) By the express terms of their leave to stay, they are invariably forbidden from seeking employment for six months and, even assuming that thereafter they apply for and obtain permission to work, their prospects of obtaining it are likely to be poor, particularly if they speak no English.
(4) They are likely to be without family, friends or contacts and thus in a position of peculiar isolation with no network of community support.
(5) Their claims take on average some 18 months to determine, on occasions as long as four years. An individual has no control over this and no means of hastening a final decision. If eventually the claim succeeds there is no provision for back payment.
(6) Quite apart from the need to keep body and soul together pending the final determination of a claim, expense is likely to be incurred in pursuing it. Applicants must attend for interviews with the Home Office and with any advisers they may have. They must have an address where they can be contacted with notices of appointments or decisions. To miss an appointment or the time for appeal is to forgo their claim.
Others, it is true, face the same total loss of benefits under the various regulations: prisoners, those in holy orders and virtually all other immigrants. But prisoners and the clergy each have their own obvious support systems, respectively the state and their religious communities. And non-asylum-seeking immigrants have, since 1980, invariably been admitted subject to the condition of 'no recourse to public funds' and, more importantly, unlike asylum seekers, can in any event return to their country of origin. Truly, deprived asylum seekers are in a unique position and one which threatens total destitution. No doubt, as Mr Richards submits, voluntary organisations do what they can to help. The need, however, far exceeds their capacity. As Mr Blake puts it, charity cannot bridge the gap between the 1996 regulations and the 1993 Act.
THE APPELLANTS' ARGUMENTS
The 1996 regulations are said to be ultra vires because of implied restrictions in the enabling power. Two central arguments are advanced. The first and wider one is that the 1996 regulations are inconsistent with the 1993 Act in the sense that they create various sub-categories of asylum seekers in a way that the 1993 Act itself does not. It is not, submits Mr Blake, for the Secretary of State in regulations to redefine how asylum seekers should be treated, even with regard to benefit payments.
Secondly, and more narrowly, Mr Blake submits that the 1996 regulations materially interfere with the exercise of rights by asylum seekers under the 1993 Act. This I shall call 'the conflict argument'. Let me consider each in turn.
The 1993 Act makes no distinction between on-arrival and post-arrival (sometimes called 'in-country') claimants nor, indeed, in terms of entitlement to remain, between those awaiting the Home Secretary's decision and those awaiting decision on appeal. There is, therefore, in this sense a clear lack of consistency between the 1996 regulations and the 1993 Act.
Similarly, the mechanism available in the 1993 Act by way of the 'without foundation procedure' for speedily weeding out obviously bogus claims finds no reflection in the 1996 regulations.
Moreover, submits Mr Blake, the Secretary of State has no good reason to distinguish, as he does, between the different categories of asylum seeker with a view to discouraging unmeritorious claims. The available statistics, as well as the facts of B's case, make the point. B, it may be noted, despite having claimed asylum on the day she reached the United Kingdom, forfeited her 'on-arrival' status by waiting to do so until she arrived, via Waterloo, at Lunar House, the Home Office's immigration centre at Croydon, rather than applying on the Eurostar train into Waterloo itself. As for the statistics, these appear to show no significant difference in the rate of recognition as refugees between those applying on arrival (about one third) and those who apply after entry. Similarly, no significant difference exists between the rates recognised respectively by the Home Secretary and, following his initial refusal, on appeal (sometimes by way of exceptional leave granted thereafter upon the appellate authorities' recommendation). Accordingly, submits Mr Blake, the mechanism of deterrence falls on the just and unjust alike. In general terms, perhaps, the later an asylum application is made, the more likely it is to be bogus. But, as the Social Security Advisory Committee (the SSAC) stated in para 38 of their report (to which I shall shortly refer):
'There are many valid reasons why people do not make their asylum claim immediately on arrival. Lack of knowledge of the procedures, arriving in a confused and frightened state, language difficulties or fear of officialdom may all be insuperable barriers to making any kind of approach to the authorities at port of entry. Many intending applicants will quite reasonably want to get help and advice before making their claim. We are told by refugee organisations that there is a common fear that making an asylum application while still in port is more likely to result in immediate deportation, or being held in detention. For these and other reasons, it is easy to see why for the majority of asylum seekers it appears much safer to make their claim from inside the UK.'
No doubt, submits Mr Blake, the asylum scheme itself could properly dictate that in-country applications not made within say four or six weeks of arrival should be treated as prima facie frivolous and vexatious and dealt with under the 'without foundation procedure' but, the argument runs, the benefit system, so long as it is contained in regulations rather than in primary legislation, must remain in harmony with the statutory asylum regime.
For my part, I would reject this argument. The responsibility for the benefit budget lies with the Secretary of State and not with the Home Secretary. Subject always to the conflict argument, the Secretary of State is perfectly entitled to reach his own decision as to how asylum seekers should be treated and as to whether all should be treated in the same way. The enabling power is amply wide for these purposes -- see particularly s 175(3)(a) of the 1992 Act. He is under no obligation to align the benefit scheme to the approach adopted in the 1993 Act.
As to the distinction made by the Secretary of State between the different categories of asylum seeker, there may or may not be good reason for this. With regard to these matters, however, the Secretary of State is answerable to Parliament rather than to the courts, not least given the absence of any irrationality challenge. As Mr Richards points out, moreover, a detailed scheme exists for parliamentary oversight and control of the benefit system. Part XIII of the Social Security Administration Act 1992 (ss 170 to 176) provides for the Secretary of State to seek advice from specialist bodies, here the SSAC. True, that committee advised that the proposed 1996 regulations should be abandoned, but the Secretary of State was not bound to follow it. His duty, rather, was to present to Parliament a reasoned response to their report. This he did. The regulations were made subject to negative resolution on 11 January 1996 and debated that day in both Houses of Parliament. They then became the subject of a further report by the all-party Social Security Committee of the House of Commons. Following a further House of Commons debate on 23 January 1996, they came into force on 5 February. One can argue, as Parliament did, about the justice and logic of the approach followed by the 1996 regulations in contrast to that adopted in the 1993 Act. That, however, as Mr Richards rightly submits, cannot found a vires challenge. I repeat, the Secretary of State was not obliged to follow the same indiscriminate approach to asylum seekers as the 1993 Act adopts.
(2) The conflict argument -- interference with rights
The right of access to refugee determination procedures, including appeals, is, submits Mr Blake, fundamental to the protection granted by the 1951 convention to which the 1993 Act gives effect. To deprive large categories of asylum seeker of the most basic subsistence benefits constitutes a serious impediment to such access, significantly reducing their ability to make and process asylum claims (including attending interviews and hearings, collecting supporting evidence, keeping in touch with legal advisers, and above all, staying alive and healthy). In the result, he submits, a number of asylum seekers will either be forced by the 1996 regulations to forgo their claims (or appeals) and leave the country, or else be so seriously handicapped in bringing them to a successful conclusion that refugee status may, on occasions, be wrongly refused them.
Furthermore, submits Mr Blake, not only are the 1996 regulations bound to cause many asylum seekers to forgo their claims, they are positively intended to do so: as the Secretary of State accepts, their very object is to discourage numbers of asylum seekers from coming to this country or, at any rate, from pursuing their claims here. So be it, responds Mr Richards, but the intention is to discourage bogus asylum seekers rather than genuine ones and, by the nature of things, it is the bogus ones -- economic migrants out to exploit the benefit system -- who are most likely to be deterred. These, after all, are by definition (a) here for benefit rather than protection, (b) able without risk to return whence they came, and (c) less expectant of obtaining long-term leave at the end of the determination process, and thus presumably less prepared to await the outcome in penury.
This part of Mr Richards' argument, I would accept. To my mind, there is no conflict between the 1996 regulations and the 1993 Act merely because the 1996 regulations are designed to reduce the numbers of those invoking rights of application and appeal under the 1993 Act. That said, however, it can hardly be doubted that some genuine asylum seekers, as well as bogus ones, are likely to be deterred by penury from pursuing their claims and thus be forced to return to the very persecution which they have sought to escape.....
Specific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act. So much is clear. These asylum seekers' rights, submits Mr Blake, are being gravely interfered with by the 1996 regulations. They should, therefore, be struck down, just as this court struck down a prison rule giving an unrestricted power to read, and in certain circumstances stop, correspondence between a prisoner and his solicitor: see R v Secretary of State for the Home Dept, ex p Leech  4 All ER 539,  QB 198. The prisoner's basic rights in question were identified as those of legal professional privilege, together with unimpeded access both to the court and to legal advice. It was with these rights that the rule conflicted. The Court of Appeal said ( 4 All ER 539 at 554):
'The question is whether r 33(3) [of the Prison Rules 1964] creates an impediment to these basic rights. Frequently, it may not be possible for a solicitor to visit a prisoner as soon or as often as may be required. Moreover, correspondence will often be the most effective medium, eg in giving advice. A prisoner may wish to obtain legal advice about the conduct of those in authority over him. He may want to know whether he has a remedy against the police, individual prison officers, the governor of the prison or the Home Office. In Solosky v R (1979) 105 DLR (3d) 745 at 760 Dickson J described the impact of a right to read a prisoner's correspondence as follows: "Nothing is more likely to have a 'chilling' effect upon the frank and free exchange and disclosure of confidences, which should characterise the relationship between inmate and counsel, than knowledge that what has been written will be read by some third person, and perhaps used against the inmate at a later date." We respectfully agree. An unrestricted right to read correspondence passing between a solicitor and a prisoner must create a considerable disincentive to a prisoner exercising his basic rights as expounded in Honey v Raymond and R v Secretary of State for the Home Dept, ex p Anderson  1 All ER 920. In our view it creates a substantial impediment to the exercise of those basic rights. And the right to stop letters on the grounds of objectionability or prolixity means that access to a solicitor by the medium of correspondence can be denied altogether. In our view r 33(3) is ultra vires so far as it purports to apply to correspondence between prisoners and their legal advisers.'
This case, submits Mr Blake, is a fortiori to Ex p Leech, the 1996 regulations here involving an even more direct effect upon an even greater human right.....
I do not pretend to have found this by any means an easy case. Powerful arguments are advanced on both sides. The Leech principle is undoubtedly of assistance to the appellants and yet the analogy with Leech is not, as it seems to me, exact. As stated, I, for my part, have no difficulty in accepting the Secretary of State's right to discourage economic migrants by restricting their benefits. That of itself indicates that the 1996 regulations are not invalid merely because of their 'chilling effect' (Dickson J's phrase in Solosky v R) upon the exercise of the deprived asylum seekers' rights under the 1993 Act.
It is, moreover, as I recognise, one thing, as in Ex p Leech, to condemn direct interference with the unquestioned basic rights there identified; another to assert that the Secretary of State, here, is bound to maintain some benefit provision to asylum seekers so as to ensure that those with genuine claims will not be driven by penury to forfeit them, whether by leaving the country before their determination or through an inability to prosecute them effectively.
The present challenge, I therefore acknowledge, involves carrying the Ex p Leech principle a step further and this, moreover, in a field where Parliament has been closely involved in the making of the impugned 1996 regulations.
I have nevertheless concluded that it is a step the court should take. Parliamentary sovereignty is not here in question: the 1996 regulations are subordinate legislation only. The Hammersmith approach cannot, in my judgment, avail the respondent: it applies only once the court has determined that the 1996 regulations do not contravene the express or implied requirements of a statute -- the very question here at issue. Parliament, for its part, has clearly demonstrated by the 1993 Act a full commitment to the United Kingdom's 1951 convention obligations. When the regulation-making power now contained in the 1992 Act was first conferred, there was no question of asylum seekers being deprived of all benefit and thereby rendered unable to pursue their claims. Although I reject Mr Blake's argument that the legislative history of this power (including, in particular, an indication to Parliament in 1986 that the government was then intending to exercise it in continuing support of asylum seekers) itself serves to limit its present scope, the fact that asylum seekers have hitherto enjoyed benefit payments appears to me not entirely irrelevant. After all, the 1993 Act confers on asylum seekers fuller rights than they had ever previously enjoyed, the right of appeal in particular. And yet these regulations for some genuine asylum seekers at least, must now be regarded as rendering these rights nugatory. Either that, or the 1996 regulations necessarily contemplate for some a life so destitute that, to my mind, no civilised nation can tolerate it. So basic are the human rights here at issue, that it cannot be necessary to resort to the Convention for the Protection of Human Rights and Fundamental Freedoms to take note of their violation. Nearly 200 years ago Lord Ellenborough CJ in R v Eastbourne (Inhabitants) (1803) 4 East 103 at 107, 102 ER 769 at 770 said:
'As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving . . .'
....I would hold it unlawful to alter the benefit regime so drastically as must inevitably not merely prejudice, but on occasion defeat, the statutory right of asylum seekers to claim refugee status.
If and when that status is recognised, refugees become entitled under art 24 to benefit rights equivalent to nationals. Not for one moment would I suggest that prior to that time their rights are remotely the same; only that some basic provision should be made, sufficient for genuine claimants to survive and pursue their claims.
It is not for this court to indicate how best to achieve this consistently with the Secretary of State's legitimate aim of deterring unmeritorious claims. I content myself merely with noting that many European countries, so we are told, provide benefits in kind by way of refugee hostels and meal vouchers; that urgent needs payments could be made at a significantly lower rate than the 90% rate hitherto paid; and that certain categories of claim (perhaps, as suggested, in-country claims brought more than four or six weeks post-arrival) could be processed under the 'without foundation procedure'. All that will doubtless be for consideration. For the purposes of this appeal, however, it suffices to say that I, for my part, regard the 1996 regulations now in force as so uncompromisingly draconian in effect that they must indeed be held ultra vires. I would found my decision not on the narrow ground of constructive refoulement envisaged by the UNHCR and rejected by the Divisional Court, but rather on the wider ground that rights necessarily implicit in the 1993 Act are now inevitably being overborne. 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. Primary legislation alone could in my judgment achieve that sorry state of affairs.