Yildiz v Secretary of State for Social Security

Regulation 12(1) preserved the pre-1996 income-support rules for an asylum seeker who was entitled to benefit when the 1996 Regulations came into force. That protection was not confined to the particular claim then being paid. A temporary loss of entitlement caused by employment did not extinguish the protected status or prevent a later claim. The protection continued, subject to the ordinary qualifying conditions, until the asylum claim was finally determined. The court applied the statutory language rather than an assumed policy that transitional protection should end at the first opportunity. Clear words would have been needed to impose that harsher consequence.

Mr Yildiz, a Turkish Kurd and asylum seeker, had been receiving urgent-case income support before the Social Security (Persons From Abroad) Miscellaneous Amendments Regulations 1996 came into force. Regulation 12(1) preserved specified pre-existing rights for qualifying asylum seekers. He later took short-term employment, ceased to qualify for income support, and claimed again after that employment and a period on jobseeker’s allowance. The claim was rejected as fresh because the original entitlement had ended. The Social Security Appeal Tribunal and Mr Commissioner Mesher upheld that approach, although the Commissioner considered himself bound by an earlier Commissioners’ decision. The issue before the Court of Appeal was whether regulation 12(1) preserved entitlement after the temporary interruption.

1. Appeal allowed. The court held that regulation 12(1) required entitlement to benefit before the 1996 Regulations came into force as a precondition. That requirement was satisfied because Mr Yildiz was entitled to and receiving income support on 5 February 1996.

2. Once the precondition was met, the effect of regulation 12(1) was governed by its words. The relevant provisions of the Income Support (General) Regulations 1987 continued to operate as if regulation 8(3)(c) of the 1996 Regulations had not been made. Those provisions preserved the claimant’s status as an asylum seeker for benefit purposes, rather than merely preserving one uninterrupted award.

3. A period of employment could suspend entitlement because the ordinary conditions for payment were not met, but it did not destroy the protected status. The claimant could reapply and regain entitlement, subject to the other qualifying conditions. Regulation 70(3A)(b) identified the final determination of the asylum claim as the event ending that status.

4. The court declined to derive a different result from the general structure or supposed policy of transitional protection. Regulation 12(3) contained express words ending protection on review; regulation 12(1) did not. The court therefore distinguished the reasoning applicable to disability living allowance and held that the legislative language, reinforced by the Secretary of State’s stated intention to preserve entitlement until the next asylum decision, controlled.

5. The appeal was allowed with costs. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) — allowed the appeal from the Social Security Commissioners, set aside the approach upheld by the Social Security Appeal Tribunal and Mr Commissioner Mesher, awarded costs and refused permission to appeal to the House of Lords.