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?
SPONSORED FEATURES
Independent Dating
and  

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

iJobs Job Widget
iJobs People

Recruitment Genius: Human Resources Manager

Negotiable: Recruitment Genius: This company provides global satellite communi...

Austen Lloyd: Practice / HR Manager - Somerset

Excellent Salary: Austen Lloyd: A rare and exciting opportunity for a Practice...

Ashdown Group: HR Executive

£20000 - £23000 per annum + benefits : Ashdown Group: An exciting opportunity...

Tradewind Recruitment: Geography Teacher

£150 - £180 per day: Tradewind Recruitment: A mainstream Secondary school in C...

Day In a Page

A Very British Coup, part two: New novel in pipeline as Jeremy Corbyn's rise inspires sequel

A Very British Coup, part two

New novel in pipeline as Jeremy Corbyn's rise inspires sequel
Philae lander data show comets could have brought 'building blocks of life' to Earth

Philae lander data show comets could have brought 'building blocks of life' to Earth

Icy dust layer holds organic compounds similar to those found in living organisms
What turns someone into a conspiracy theorist? Study to look at why some are more 'receptive' to such theories

What turns someone into a conspiracy theorist?

Study to look at why some are more 'receptive' to such theories
Chinese web dissenters using coded language to dodge censorship filters and vent frustration at government

Are you a 50-center?

Decoding the Chinese web dissenters
The Beatles film Help, released 50 years ago, signalled the birth of the 'metrosexual' man

Help signalled birth of 'metrosexual' man

The Beatles' moptop haircuts and dandified fashion introduced a new style for the modern Englishman, says Martin King
Hollywood's new diet: Has LA stolen New York's crown as the ultimate foodie trend-setter?

Hollywood's new diet trends

Has LA stolen New York's crown as the ultimate foodie trend-setter?
6 best recipe files

6 best recipe files

Get organised like a Bake Off champion and put all your show-stopping recipes in one place
Ashes 2015: Steven Finn goes from being unselectable to simply unplayable

Finn goes from being unselectable to simply unplayable

Middlesex bowler claims Ashes hat-trick of Clarke, Voges and Marsh
Mullah Omar, creator of the Taliban, is dead... for the fourth time

Mullah Omar, creator of the Taliban, is dead... again

I was once told that intelligence services declare their enemies dead to provoke them into popping up their heads and revealing their location, says Robert Fisk
Margaret Attwood on climate change: 'Time is running out for our fragile, Goldilocks planet'

Margaret Atwood on climate change

The author looks back on what she wrote about oil in 2009, and reflects on how the conversation has changed in a mere six years
New Dr Seuss manuscript discovered: What Pet Should I Get? goes on sale this week

New Dr Seuss manuscript discovered

What Pet Should I Get? goes on sale this week
Oculus Rift and the lonely cartoon hedgehog who could become the first ever virtual reality movie star

The cartoon hedgehog leading the way into a whole new reality

Virtual reality is the 'next chapter' of entertainment. Tim Walker gives it a try
Ants have unique ability to switch between individual and collective action, says study

Secrets of ants' teamwork revealed

The insects have an almost unique ability to switch between individual and collective action
Donovan interview: The singer is releasing a greatest hits album to mark his 50th year in folk

Donovan marks his 50th year in folk

The singer tells Nick Duerden about receiving death threats, why the world is 'mentally ill', and how he can write a song about anything, from ecology to crumpets
Let's Race simulator: Ultra-realistic technology recreates thrill of the Formula One circuit

Simulator recreates thrill of F1 circuit

Rory Buckeridge gets behind the wheel and explains how it works