Secretary of State for the Home Department, Ex Parte Salem, R v.

The House of Lords dismissed the appellant's appeal as academic and exercised its discretion not to decide the substantive issues. The central legal question concerned the meaning of Regulation 70(3A)(b) of the Income Support (General) Regulations 1987 (as inserted by the 1993 amendment) and the related Regulation 21ZA (1996) as to when an asylum claim is "determined" so that a claimant ceases to be an asylum seeker for social security purposes. The court confirmed that, although it has a discretion to hear public law appeals which are academic between the parties, that discretion must be exercised cautiously and only where there is a compelling public interest (for example, a discrete point of statutory construction likely to recur). On the facts of this case the issues were fact-sensitive, few similar cases existed, the appellant's position had been resolved by subsequent administrative decisions, and the appeal was therefore dismissed with no order as to costs save for legal aid taxation.

Background and parties. The appellant, a Libyan national, arrived in the United Kingdom on 17 April 1997, claimed asylum and was initially granted income support under the Income Support (General) Regulations 1987 (Regulation 70). The Home Office recorded on internal files that asylum had been refused on 7 May 1997 and the claim "recorded as having been determined"; following exchanges the Benefits Agency stopped income support and housing benefit. The appellant sought judicial review of the recording and cessation of benefits.

Procedural history.

• Tucker J refused leave to apply for judicial review.
• The Court of Appeal heard the substantive application and by majority dismissed the application (reported at [1999] 2 W.L.R. 1).
• Following administrative proceedings and an appeal to a special adjudicator, the appellant was later recorded as a refugee (12 December 1998) and arrears of income support were agreed to be payable under Regulation 21ZA.
• The appellant appealed to the House of Lords raising issues of statutory construction and the administration of the recording process.

Relief sought. The appellant sought judicial review of the Home Office's recording that the asylum claim had been "determined" and related consequences for income support and housing benefit.

Issues before the House. (i) When, for the purpose of Regulation 70(3A)(b) and related provisions, can an asylum claim be said to be "determined" so that the claimant ceases to be an asylum seeker? (ii) Whether the Secretary of State had a lawful discretion to record and to rescind such recordings and, if so, whether that discretion had been exercised rationally and fairly in this case.

Court's reasoning and disposition. The House accepted that it has a discretionary jurisdiction to hear public law appeals which may be academic between the parties, but emphasised that the discretion must be exercised with caution. Factors favouring refusal to entertain the appeal were: the questions raised were fact-sensitive rather than discrete points of construction; only a small number of similar cases existed; administrative procedures might be reformed (as addressed in a contemporaneous White Paper); and, crucially, the appellant's practical position had been resolved (arrears and housing benefit arrangements and later recognition as a refugee). In those circumstances the House declined to decide the substantive statutory questions and dismissed the appeal with no order as to costs except for legal aid taxation.

Appeal dismissed. The House exercised its discretion not to decide the substantive issues because the dispute between the parties was effectively academic: the factual issues were complex and fact-sensitive, only a few similar cases existed, administrative procedures might change, and the appellant's position had been resolved (including subsequent recognition as a refugee). Accordingly there was no sufficient public interest to justify deciding the matter on the merits; order as to costs: none save legal aid taxation.

At first instance leave to apply for judicial review was refused by Tucker J. The substantive application was then heard in the Court of Appeal which, by majority, dismissed the application (reported at [1999] 2 W.L.R. 1). After an appeal to a special adjudicator the appellant was recorded as a refugee on 12 December 1998 and arrears were addressed administratively. The appeal was then heard in the House of Lords and dismissed on 11 February 1999.