Law Report:New rules on refugees' benefits invalid

Regina v Secretary of State for Social Security, ex parte B and another; Court of Appeal (Lord Justice Neill, Lord Justice Simon Brown, Lord Justice Waite) 21 June 1996

Subsidiary legislation must not only be within the vires of the enabling statute, but must also be drawn so as not to conflict with statutory rights already enacted by other primary legislation.

The Court of Appeal by a majority (Lord Justice Neill dissenting) allowed an appeal by the applicants, an asylum seeker referred to as B and the Joint Council for the Welfare of Immigrants, against the decision of the Queen's Bench Divisional Court on 26 March 1996, and upheld their challenge, by judicial review, to the validity of the Social Security (Persons from Abroad) Miscellaneous Amendment Regulations 1996 (SI 30).

Nicholas Blake QC and Francis Webber (Christian Fisher) for the applicants; Stephen Richards and Stephen Kovats (P.R.J. Thomson, solicitor, DHSS) for the respondent.

Lord Justice Simon Brown said that in essence the regulations removed all entitlement to income-related benefit from two classes of asylum seeker: those who submitted their claims for asylum otherwise than immediately upon arrival in the UK, and those whose claims had been rejected by the Home Secretary but who then appealed to the independent appellate authorities.

The Secretary of State's intention was to discourage economic migrants from making and pursuing asylum claims and to speed up the system to the advantage of the genuine refugee. It would also save the taxpayer some pounds 200m a year.

The applicants claimed the regulations were ultra vires. The enabling power could not have been intended to permit this degree of interference with statutory rights under the Asylum and Immigration Appeals Act 1993 and/or fundamental human rights.

Prior to the new regulations, all asylum seekers were entitled to "urgent cases" payments amounting to 90 per cent of normal income support benefit, and to housing and other benefits "passported" through income support: see reg 70 of the Income Support (General) Regulations 1987 (SI 1967) as amended by 1993 SI 1679.

The new regulations were made in exercise of powers conferred in particular by sections 135, 137 and 175 of the Social Security (Contributions and Benefits) Act 1992. They amended regulations 21 and 70 of the 1987 Regulations so as to remove entitlement to urgent cases payments from all asylum seekers save those who submitted a claim for asylum on arrival in the UK, and even then entitlement ceased on the date the Home Secretary recorded the claim to have been determined or abandoned. They also removed any entitlement to housing benefit in corresponding circumstances.

The new regulations did not conflict with the 1993 Act merely because they were designed to reduce the numbers of those invoking rights of application and appeal under that Act. But it could hardly be doubted that some genuine asylum seekers as well as bogus ones were likely to be deterred by penury from pursuing their claims and thus forced to return to the very persecution from which they had sought to escape.

Specific statutory rights were not to be cut down by subordinate legislation passed under the vires of a different Act. The asylum seekers' rights under the 1993 Act were, it was said, being gravely interfered with by the new regulations. The regulations should therefore be struck down in accordance with the principle adopted in R v Home Secretary, ex p Leech [1994] QB 198.

Parliament had clearly demonstrated by the 1993 Act a full commitment to the UK's obligations under the 1951 UN Convention on the status of refugees, as amended by the 1967 Protocol. Yet these regulations, for some genuine asylum seekers at least, must be regarded as rendering their rights under that Act nugatory. Either that, or the regulations necessarily contemplated for some a life so destitute that no civilised nation could tolerate it. The regulations were so draconian in effect that they must be held to be ultra vires.

Start your day with The Independent, sign up for daily news emails
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Guru Careers: Graduate Resourcer / Recruitment Account Executive

£18k + Bonus: Guru Careers: We are seeking a bright, enthusiastic and internet...

Reach Volunteering: Chair and trustees sought for YMCA Bolton

VOLUNTARY ONLY - EXPENSES REIMBURSED: Reach Volunteering: Bolton YMCA is now a...

Tradewind Recruitment: Geography Teacher

£150 - £180 per day: Tradewind Recruitment: Geography Teacher Geography teach...

Tradewind Recruitment: Geography Teacher

£150 - £180 per day: Tradewind Recruitment: Geography Teacher Geography teach...

Day In a Page

Abuse - and the hell that came afterwards

Abuse - and the hell that follows

James Rhodes on the extraordinary legal battle to publish his memoir
Why we need a 'tranquility map' of England, according to campaigners

It's oh so quiet!

The case for a 'tranquility map' of England
'Timeless fashion': It may be a paradox, but the industry loves it

'Timeless fashion'

It may be a paradox, but the industry loves it
If the West needs a bridge to the 'moderates' inside Isis, maybe we could have done with Osama bin Laden staying alive after all

Could have done with Osama bin Laden staying alive?

Robert Fisk on the Fountainheads of World Evil in 2011 - and 2015
New exhibition celebrates the evolution of swimwear

Evolution of swimwear

From bathing dresses in the twenties to modern bikinis
Sun, sex and an anthropological study: One British academic's summer of hell in Magaluf

Sun, sex and an anthropological study

One academic’s summer of hell in Magaluf
From Shakespeare to Rising Damp... to Vicious

Frances de la Tour's 50-year triumph

'Rising Damp' brought De la Tour such recognition that she could be forgiven if she'd never been able to move on. But at 70, she continues to flourish - and to beguile
'That Whitsun, I was late getting away...'

Ian McMillan on the Whitsun Weddings

This weekend is Whitsun, and while the festival may no longer resonate, Larkin's best-loved poem, lives on - along with the train journey at the heart of it
Kathryn Williams explores the works and influences of Sylvia Plath in a new light

Songs from the bell jar

Kathryn Williams explores the works and influences of Sylvia Plath
How one man's day in high heels showed him that Cannes must change its 'no flats' policy

One man's day in high heels

...showed him that Cannes must change its 'flats' policy
Is a quiet crusade to reform executive pay bearing fruit?

Is a quiet crusade to reform executive pay bearing fruit?

Dominic Rossi of Fidelity says his pressure on business to control rewards is working. But why aren’t other fund managers helping?
The King David Hotel gives precious work to Palestinians - unless peace talks are on

King David Hotel: Palestinians not included

The King David is special to Jerusalem. Nick Kochan checked in and discovered it has some special arrangements, too
More people moving from Australia to New Zealand than in the other direction for first time in 24 years

End of the Aussie brain drain

More people moving from Australia to New Zealand than in the other direction for first time in 24 years
Meditation is touted as a cure for mental instability but can it actually be bad for you?

Can meditation be bad for you?

Researching a mass murder, Dr Miguel Farias discovered that, far from bringing inner peace, meditation can leave devotees in pieces
Eurovision 2015: Australians will be cheering on their first-ever entrant this Saturday

Australia's first-ever Eurovision entrant

Australia, a nation of kitsch-worshippers, has always loved the Eurovision Song Contest. Maggie Alderson says it'll fit in fine