Szoma v Secretary of State for Work and Pensions

For the social-security exclusion created by the Immigration and Asylum Act 1999 and the social-security regulations, “lawfully present” is a single expression. A person temporarily admitted under paragraph 21 of Schedule 2 to the Immigration Act 1971, while liable to detention, is deemed not to have entered the United Kingdom under section 11(1) and is not lawfully present for this purpose. That remains so although the person is not in breach of immigration law.

The Court of Appeal followed Kaya v Haringey LBC [2002] HLR 1. The statutory arguments and Committee reports did not justify treating that decision as per incuriam. Exclusion from income support did not breach the relevant treaty obligations, which could be met by other forms of assistance.

Robert Szoma, a Polish national who had claimed asylum and was temporarily admitted to the United Kingdom while liable to detention, claimed income support from 7 July 2000. The Secretary of State refused the claim under restrictions applying to persons subject to immigration control.

A Social Security Appeal Tribunal allowed his appeal on the basis that temporary permission made his presence lawful. Mr Commissioner R J C Angus allowed the Secretary of State’s appeal on 10 October 2002, applying Kaya v Haringey LBC [2002] HLR 1. The central issue in the Court of Appeal was whether temporary admission constituted lawful presence for the purposes of paragraph 4 of Part I of the Schedule to the relevant social-security regulations.

1. Disposition. The appeal was dismissed unanimously. Pill LJ delivered the leading judgment. Carnwath LJ and Maurice Kay J agreed that the Court was bound by Kaya v Haringey LBC [2002] HLR 1 and that the appeal should be dismissed.
2. Per incuriam challenge. A decision could be treated as given per incuriam only if it had been made in ignorance or forgetfulness of material which must have led to a contrary decision, applying R(W) v Lambeth LBC [2002] 2 All ER 901. The provisions of the Social Security Contributions and Benefits Act 1992, the naturalisation provisions, section 11(3) of the Nationality, Immigration and Asylum Act 2002, and the Committee reports did not satisfy that threshold. Nor did they cast doubt on Kaya.
3. Lawful presence. Paragraph 4 of Part I of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 uses “lawfully present” as a single expression. Section 11(1) of the Immigration Act 1971 deems a person temporarily admitted while liable to detention not to have entered the United Kingdom. Such a person is therefore not lawfully present for the purposes of the regulations, even though the person is not in breach of immigration law. The Court applied Bugdaycay v Secretary of State for the Home Department [1987] AC 514 and the intermediate-status reasoning in R v Home Secretary ex parte Singh [1987] IAR 489.
4. Treaty context and other authorities. The wording of the regulations reflected Article 13 of the Council of Europe Social Charter and the related refugee-law wording in Article 32.1 of the Geneva Convention relating to the Status of Refugees 1951. Domestic deeming provisions were permissible. The United Kingdom could meet its treaty obligations through assistance other than income support, including assistance under the National Assistance Act 1948. Statements in R v Wandsworth LBC ex parte O [2000] 1 WLR 2539 and Chief Adjudication Officer v Wolke, Remilien [1997] 1 WLR 1640 arose in different contexts and did not govern the issue.
5. The appellant was ordered to pay the respondent’s costs, subject to postponed assessment and detailed assessment of Community Legal Services costs. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeal from the Social Security Commissioner dismissed; costs ordered and leave to appeal refused. [2003] EWCA Civ 1131.
• Social Security Commissioner: On 10 October 2002, Mr Commissioner R J C Angus allowed an appeal against the tribunal’s decision.
• Social Security Appeal Tribunal: On 26 January 2001, the Tribunal allowed the claimant’s appeal against the Secretary of State’s refusal of income support.