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.