Regina v. Secretary of State for the Home Department and another (Respondents) ex parte Anufrijeva (FC) (Appellant).

An administrative decision which adversely affects an individual's rights ordinarily has no legal effect against that individual until it has been notified. This rule protects access to justice, procedural fairness and the rule of law.

Fundamental rights cannot be displaced by general or ambiguous legislative language. Parliament must use express words or necessary implication. Accordingly, an internal record that an asylum claim had been determined could not end entitlement to income support under the Income Support (General) Regulations 1987 before notification of the determination.

The appellant received income support as an asylum seeker. On 20 November 1999 a Home Office official recorded internally that her asylum claim had been refused. The decision and reasons were not sent to her until 25 April 2000, although her income support had been stopped with effect from 9 December 1999.

A deputy High Court judge dismissed her application for judicial review because he considered himself bound by R v Secretary of State for the Home Department, Ex p Salem [1999] QB 805. The Court of Appeal likewise dismissed her appeal, while granting permission to appeal: [2002] EWCA Civ 399.

The issue was whether an uncommunicated determination could be recorded under regulation 70(3A)(b)(i) of the Income Support (General) Regulations 1987 so as to terminate entitlement to income support.

1. Appeal allowed by a majority of four to one. The appellant remained entitled to income support until she was properly notified of the determination on 25 April 2000. R v Secretary of State for the Home Department, Ex p Salem [1999] QB 805 was overruled.

2. Per Lord Steyn, whose reasons Lord Hoffmann adopted and with which Lord Scott agreed, notice is required before a decision adversely affecting an individual's rights can take legal effect against that individual. The rule protects the right of access to justice because a person must know of a decision before deciding whether to challenge it. It is also supported by the rule of law, public accountability and elementary fairness.

3. Per Lord Steyn, the principle of legality presumes that general or ambiguous language does not override fundamental rights. Parliament had not used specific and unmistakable language authorising the withdrawal of income support through an undisclosed internal file note. The express notification requirements elsewhere in the statutory scheme did not exclude an implicit requirement inherent in a legally effective determination.

4. Accordingly, regulation 70(3A)(b)(i) of the Income Support (General) Regulations 1987 did not permit the asylum determination to be recorded so as to end the appellant's entitlement before notification. Rules 331, 333 and 348 of the Statement of Changes in Immigration Rules (HC 395) supported that construction because refusal of asylum contemplated communication of the adverse decision.

5. Lord Millett concurred in the result. He considered that the determination had actually and finally been made on 20 November 1999 and could have immediate effect for some purposes. An uncommunicated decision need not be effective for every purpose or for none, however. It could not be recorded so as to deprive the appellant of income support until communicated, or at least until reasonable steps had been taken to communicate it.

6. Lord Scott, in supplemental reasons, considered that section 11(1) of the Asylum and Immigration Act 1996 did not empower the Secretary of State to terminate an asylum seeker's status for income-support purposes without notification. He also construed the word “determined” consistently with the Immigration Rules as requiring a communicated refusal.

7. Per Lord Steyn, the deliberate policy of withholding notification was also an abuse of power. It precluded the Home Secretary from relying on his unlawful conduct before notification. Lord Bingham dissented. He considered the wording of regulation 70(3A)(b)(i) unambiguous and would have held that entitlement ended when the final determination was internally recorded, notwithstanding the separate public law duty to give notice within a reasonable time.

1. House of Lords: By a majority of four to one, allowed the appeal from the Court of Appeal and overruled R v Secretary of State for the Home Department, Ex p Salem [1999] QB 805.
2. Court of Appeal: Dismissed the appeal because it considered itself bound by Salem, but granted permission to appeal to the House of Lords: [2002] EWCA Civ 399.
3. High Court: Sir Christopher Bellamy QC, sitting as a deputy judge, dismissed the application for judicial review on 25 October 2001 because he considered himself bound by Salem.