Shire v Secretary of State for Work and Pensions

A claimant does not satisfy a requirement to claim asylum “on arrival” merely because a delay resulted from following the instructions of an agent whom the claimant employed to secure entry into the United Kingdom. Even if the expression allows sufficient elasticity to accommodate a claim made at the first effective opportunity, the claimant ordinarily remains responsible for the agent’s actions. Clear evidence of physical duress may justify a different conclusion.

When an appellant proposes to advance substantially different grounds shortly before an appeal hearing, the appellant should notify the court and the respondent and seek directions. The court may then determine whether the new case should be allowed and how it should proceed.

The claimant arrived in the United Kingdom accompanied by an agent who had arranged her travel documents and entry. She did not claim asylum at the airport because the agent told her not to do so. She claimed two days later.

An Income Support Appeal Tribunal held that she was not entitled to an urgent case payment of income support because she had not claimed asylum on arrival. The Social Security Commissioner dismissed her appeal on 10 October 2002 but granted permission to appeal.

The appeal concerned the meaning of “on his arrival” in Regulation 70(3A) of the Income Support General Regulations 1987. The claimant contended that the requirement was satisfied by a claim made at the first effective opportunity. The appeal also raised a procedural issue because that construction argument replaced the grounds upon which permission had originally been obtained.

1. The appeal was dismissed unanimously. The Lord Chief Justice delivered the judgment, with which Chadwick and Buxton LJJ agreed. Even if “on his arrival” in Regulation 70(3A) of the Income Support General Regulations 1987 could accommodate a claim made at the first effective opportunity, the claimant had not satisfied that standard.

2. The expression “on his arrival” could not be treated as entirely inelastic. Circumstances such as physical incapacity or an inability to make a claim might require a realistic application of the language. It was unnecessary, however, to define comprehensively which circumstances would fall within the regulation because the provision was no longer in force.

3. A person who employed an agent to obtain entry into the country was in a materially different position from someone physically unable to make a claim. Such a person must ordinarily be regarded as having placed herself under the agent’s control and as responsible for the agent’s actions. Unless clear evidence showed that the agent had subjected the claimant to physical duress, the claimant remained in control for the purposes of the regulation. The claimant therefore had not claimed asylum at a time meeting the statutory requirement and was not entitled to urgent income support.

4. The European Convention on Human Rights could not directly affect the construction of the regulation. The events occurred before the Convention became part of domestic law under the Human Rights Act 1998, and the relevant regulation had ceased to have effect before incorporation.

5. On procedure, an appellant wishing to replace the permitted grounds with a substantially different case shortly before the hearing should notify both the court and the respondent and seek directions. This enables the respondent to object and the court to decide whether the new case lacks merit, whether justice permits the late change, and how any arguable new ground should be heard. Although that procedure had not been followed, the court permitted the new construction argument to be advanced.

6. The appeal was dismissed. There was no order for costs, save for a Community Legal Services assessment of the appellant’s costs.

1. Court of Appeal (Civil Division): Dismissed the claimant’s appeal unanimously. The court upheld the conclusion that she had not claimed asylum on arrival within Regulation 70(3A) of the Income Support General Regulations 1987.

2. Social Security Commissioner: On 10 October 2002, dismissed the claimant’s appeal from the Income Support Appeal Tribunal and granted permission to appeal to the Court of Appeal.

3. Income Support Appeal Tribunal: On 19 January 2000, held that the claimant was not entitled to an urgent case payment of income support because she had arrived from abroad and had not claimed asylum on arrival in the United Kingdom.