R v Secretary of State for Social Security, Ex parte Joint Council for the Welfare of Immigrants (R v Secretary of State for Social Security, Ex parte B)

Subordinate legislation made under a broadly expressed benefit power may classify claimants differently from a separate statutory scheme. It must nevertheless not conflict with statutory rights conferred by primary legislation.

The question is the practical effect of the regulations. Regulations which deprive a substantial class of asylum seekers of all basic subsistence, so that genuine claimants may be unable to remain and pursue statutory claims or appeals, can render those rights nugatory and are ultra vires. Such a result requires primary legislation, even where the regulations pursue the legitimate aim of deterring unfounded claims and reducing public expenditure.

The appellants challenged the validity of the Social Security (Persons from Abroad) Miscellaneous Amendment Regulations 1996. The regulations removed income-related benefits from asylum seekers who claimed after arrival, subject to a limited exception, and from claimants awaiting appeals from an adverse asylum decision.

The Queen’s Bench Divisional Court dismissed the challenge. It held that withdrawal of benefit was not sufficiently direct interference with the asylum regime under the Asylum and Immigration Appeals Act 1993.

The appeal raised whether the regulations, although within the literal breadth of the social-security enabling powers, unlawfully conflicted with statutory rights to remain in the United Kingdom while asylum claims and appeals were determined.

1. Appeal allowed by a majority. Lord Justice Simon Brown, with whom Lord Justice Waite expressly agreed, held that the regulations were ultra vires. Lord Justice Neill dissented.
2. The Secretary of State was not required to make the benefit scheme mirror the Asylum and Immigration Appeals Act 1993. The broad regulation-making powers permitted different treatment of classes of asylum seeker. Nor were the regulations invalid merely because they were intended to deter economic migrants from invoking asylum procedures.
3. However, subordinate legislation may not conflict with rights created by other primary legislation. The inquiry was not confined to whether the interference was direct. The court had to assess the objective practical result of the regulations upon those affected.
4. The statutory asylum regime protected claimants from removal while claims were determined and provided appeal rights as part of the determination process. The impugned regulations denied a wide class of claimants income support, housing benefit and associated benefits while they were generally unable to work. For most, this meant destitution and could make it impossible to remain, maintain contact, attend interviews or hearings, and pursue a claim or appeal.
5. The regulations therefore did not merely prejudice the exercise of statutory asylum rights. For some genuine claimants they defeated those rights in practice. The legitimate fiscal and deterrent objectives could not authorise that result through secondary legislation. Primary legislation alone could do so.
6. Per Neill LJ, dissenting: the regulations were within the enabling powers. Their interference with other rights was not disproportionate to the objects of allocating limited benefit resources and deterring unfounded claims.

The appeal was allowed and consequential orders were made in the amended draft form lodged with the court.

• Court of Appeal (Civil Division): allowed the appeal by a majority and held the regulations ultra vires.
• Queen’s Bench Divisional Court: dismissed the challenge on 26 March 1996, holding that the withdrawal of benefit did not amount to sufficiently direct interference with the asylum regime.