Kola & Anor v Secretary of State for Work and Pensions

Under regulation 70(3A) of Income Support (General) Regulations 1987, an asylum claim was not made ‘on his arrival’ where an entrant used an agent to obtain entry, left the port of entry without claiming, and had no clear evidence of physical duress. The entrant remained responsible for the agent’s conduct. The Court of Appeal could disturb the adjudicating officer’s factual conclusion only where it was not open on the evidence. Fundamental-rights and refugee-law arguments, or a more liberal construction, could not overcome undisputed facts showing that the statutory condition was not met.

Mrs Kola and Mr Mirzajani entered the United Kingdom clandestinely and claimed asylum on the day of arrival, but only after leaving the port of entry. Their Income Support claims were refused by adjudication officers. The Income Support Tribunal dismissed their appeals, and Mr Angus, the Social Security Commissioner, dismissed further appeals in a decision dated 15 July 2003. He granted permission to appeal on 29 October 2003.

The issue was whether the claims satisfied regulation 70(3A)’s ‘on his arrival’ condition, and whether the appellants could avoid responsibility for actions by agents involved in their entry in the absence of physical duress.

1. Disposition. Lord Justice Kennedy gave the reasons for decision. Lord Justice Jonathan Parker and Lord Justice Dyson agreed. The appeals failed and were dismissed unanimously. The written application for leave to appeal to the House of Lords was also dismissed.
2. Statutory condition and appellate restraint. At the relevant dates, persons from abroad were generally excluded from Income Support unless they qualified as urgent cases under regulation 70 of Income Support (General) Regulations 1987. Regulation 70(3A) recognised an asylum seeker where the claim was submitted on arrival. The Court of Appeal could interfere with the adjudicating officers’ factual conclusion only if it was not open to them on the evidence. The relevant evidence was undisputed (para [4]).
3. Responsibility for an agent. In Shire v Secretary of State for Work and Pensions [2003] EWCA Civ 1465, the court had rejected treating an agent-assisted entrant as having claimed asylum at the first effective opportunity. In the absence of clear evidence of physical duress, a person who used an agent to obtain entry remained responsible for the agent’s actions and was treated as remaining in control. The present court regarded that decision as determining the outcome. Since there was no evidence of duress, neither appellant could shelter behind the agent’s conduct. Each had left the port of entry without claiming asylum and therefore had not claimed asylum on arrival (para [8]).
4. Other arguments. A reported Social Security Commissioner decision, R (IS) 14/99, allowed limited flexibility in interpreting the arrival requirement, but even that approach could not assist these appellants (para [9]). The court also held that arguments based on fundamental rights, Articles 3 and 31 of the 1951 United Nations Convention relating to the status of refugees, UNHCR material and academic commentary could not affect the result where the facts established failure of the statutory condition under any liberal construction. The earlier amendments had been re-enacted by the Asylum and Immigration Act 1996. The later test in section 55 of the Nationality Immigration and Asylum Act 2002 was materially different and did not govern these appeals (paras [5], [10]).

• Court of Appeal (Civil Division): On 21 May 2004, dismissed both appeals. The application for leave to appeal to the House of Lords was dismissed.
• Social Security Commissioner: Mr Angus dismissed the appeals in a decision dated 15 July 2003 and granted permission to appeal on 29 October 2003.
• Income Support Tribunal: Dismissed the appellants’ appeals.
• Adjudication officers: Refused the appellants’ claims for Income Support.