Szoma v. Secretary of State for the Department of Work and Pensions

The House of Lords held that an asylum seeker temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the Immigration Act 1971 is "lawfully present in the United Kingdom" for the purposes of paragraph 4 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000. The court rejected the Secretary of State's submission that "lawfully present" requires a positive grant of leave to enter and that section 11(1) of the Immigration Act 1971 should be read so as to deem temporarily admitted persons not to be present for the purposes of the 2000 Regulations. The House concluded that the deeming fiction in section 11(1) should not be carried beyond its limited statutory purpose and that presence pursuant to the written authority of an immigration officer satisfied the condition of being lawfully present for paragraph 4 purposes.

The appellant, a Polish national who claimed asylum on arrival in 1998 and was temporarily admitted under paragraph 21 of Schedule 2 to the Immigration Act 1971, sought income support. Following changes made by the Immigration and Asylum Act 1999 and the 2000 Regulations, entitlement depended on being a national of a state which had ratified ECSMA or the Council of Europe Social Charter and being "lawfully present in the United Kingdom" (paragraph 4 of the Schedule to the 2000 Regulations). The Secretary of State refused benefit on the ground that the appellant was not lawfully present and the appeal was allowed by a Social Security Appeal Tribunal, reversed by a Commissioner, and the Court of Appeal dismissed the appellant's further appeal ([2003] EWCA Civ 1131). The appellant obtained leave to appeal to the House of Lords.

The principal issues were (i) the meaning of "lawfully present in the United Kingdom" in paragraph 4 of the Schedule to the 2000 Regulations and (ii) whether section 11(1) of the Immigration Act 1971, which deems temporarily admitted persons not to have entered for the purposes of that Act, precludes treating temporarily admitted asylum seekers as "present" or "lawfully present" for the Social Security Regulations. The Secretary of State relied on earlier authorities, notably In re Musisi (as part of R v Secretary of State for the Home Department, Ex p Bugdaycay), R v Secretary of State for the Home Department, Ex p Singh, and Kaya v Haringey London Borough Council, and argued that "lawfully" required leave to enter.

The House held that paragraph 4 should be construed to include persons temporarily admitted under paragraph 21 provided they comply with the conditions attached to that admission. The court found that the reasoning in Musisi produced the correct outcome on the facts considered but for the wrong reasons, and that Kaya had applied Musisi incorrectly by extending the deeming fiction in section 11(1) beyond its limited purpose. The House rejected the argument that "lawfully" connotes a requirement of positive leave to enter rather than absence of unlawfulness. The appellant's appeal was allowed and the tribunal decision reinstated.

The opinion noted that the benefits regime as drafted goes further than strictly required by the relevant international instruments but emphasised that the court's task was to construe domestic legislation as enacted.

Appeal allowed. The House of Lords held that a person temporarily admitted under paragraph 21 of Schedule 2 to the Immigration Act 1971 is "lawfully present in the United Kingdom" for the purposes of paragraph 4 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000. The court reasoned that the deeming provision in section 11(1) should not be extended beyond its limited statutory purpose and that presence under written temporary admission satisfies the statutory condition of lawful presence; accordingly the tribunal decision in favour of the appellant was reinstated.

Social Security Appeal Tribunal allowed appellant's appeal (26 January 2001); Commissioner Angus allowed the Secretary of State's appeal (10 October 2002); Court of Appeal dismissed the appellant's appeal [2003] EWCA Civ 1131; House of Lords granted leave and allowed the appeal [2005] UKHL 64.