Anufrijeva, R (on the application of) v. Secretary of State for the Home Department & Anor

The House considered whether an asylum applicant ceased to be an "asylum seeker" for income support purposes on the date the Secretary of State recorded an adverse decision in departmental files or only when that decision had been notified to the applicant. The key statutory provision was regulation 70(3A)(b)(i) of the Income Support (General) Regulations 1987 which defines cessation of "asylum seeker" status as occurring "on the date on which it is so recorded". The majority held that, consistently with principles of legality and the right of access to justice, an uncommunicated adverse determination cannot be given effect to the detriment of the applicant for income support purposes until it has been communicated (or reasonable steps taken to communicate it). The Court therefore overruled the earlier decision in R v Secretary of State for the Home Department, Ex p Salem insofar as it permitted withdrawal of benefits from the date of an uncommunicated internal recording of refusal.

The appellant, an asylum applicant, received income support from 4 September 1998 as an "asylum seeker" under regulation 70(3A) of the Income Support (General) Regulations 1987. A Home Office official made an internal file note on 20 November 1999 recording that her asylum claim had been refused. That note was not communicated to the appellant; the Home Office delayed sending the refusal letter until 25 April 2000. The Benefits Agency stopped income support with effect from 9 December 1999 on the basis that the claim had been recorded as determined on 20 November 1999. The appellant sought judicial review of (i) the Home Secretary's decision to treat her claim as refused on 20 November 1999 and (ii) the decision to withdraw income support from 9 December 1999.

Procedural history: The claim was dismissed at first instance (Sir Christopher Bellamy QC) and the Court of Appeal, considering itself bound by Salem, dismissed the appeal ([2002] EWCA Civ 399). The House granted permission to appeal.

Issues framed by the House:

• Whether a claim is "determined" for purposes of regulation 70(3A)(b)(i) when an internal record is made, or only when the determination has been communicated to the asylum seeker.
• Whether Parliament plainly authorised withdrawal of income support from the date of an uncommunicated internal recording of refusal.
• Whether public law principles (including the right of access to justice and fairness in administrative decision-making) require notification before an adverse decision can take legal effect for benefit withdrawal.

Court's reasoning: The majority (Lords Steyn, Hoffmann, Millett and Scott) accepted that the Home Secretary had in fact determined the claim on 20 November 1999 but concluded that fundamental constitutional principles required that a determination which deprives an individual of status and benefits must be communicated (or reasonable steps taken to communicate it) before it takes effect to the detriment of the individual. The majority considered the Immigration Rules and the statutory context (including section 11 of the Asylum and Immigration Act 1996 and related provisions) and held that Parliament had not clearly or expressly authorised that an asylum seeker should lose benefit entitlement by virtue of an uncommunicated internal decision. They therefore allowed the appeal and held that entitlement to income support continued until the appellant was notified on 25 April 2000. Lord Bingham (dissenting) emphasised the plain wording of regulation 70(3A)(b)(i) and considered that the date of recording determined cessation for benefit purposes, even if notification followed later.

Appeal allowed. The majority held that although the Home Secretary had in substance determined the asylum claim on 20 November 1999, an adverse determination which deprives an individual of status and income support cannot lawfully take effect for that purpose until the decision has been communicated (or reasonable steps taken to communicate it). The Court therefore concluded that the appellant remained an asylum seeker for income support purposes until notification on 25 April 2000.

Judicial review dismissed at first instance by Sir Christopher Bellamy QC (25 October 2001). The Court of Appeal dismissed the appeal, considering itself bound by R v Secretary of State for the Home Department, Ex p Salem ([2002] EWCA Civ 399). The appeal was allowed by the House of Lords ([2003] UKHL 36). Other relevant lower court citations include judicial review decisions cited in the judgment: [2002] EWHC Admin 383 and [2002] EWHC Admin 600.