Szoma (FC) (Appellant) v. Secretary of State for the Department of Work and Pensions (Respondent)

A person temporarily admitted under statutory written authority, and complying with the attached conditions, is “lawfully present” for paragraph 4 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000. Leave to enter is not required.

The deemed non-entry created by section 11(1) of the Immigration Act 1971 serves the limited purposes of that Act. A statutory fiction extends only as far as its legislative purpose requires. It cannot be extended to deny a person’s actual and legally authorised presence when applying benefits legislation. The enacted exception is not narrowed merely because it may confer benefits beyond the minimum required by the treaties which prompted it.

Szoma (FC) v Secretary of State for the Department of Work and Pensions concerned a Polish Roma asylum seeker who was temporarily admitted under paragraph 21 of Schedule 2 to the Immigration Act 1971. His claim for income support was refused under the benefit regime created by the Immigration and Asylum Act 1999 and the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000.

The Social Security Appeal Tribunal allowed his appeal, but the Social Security Commissioner reversed that decision. The Court of Appeal dismissed the claimant’s further appeal in [2003] EWCA Civ 1131, considering itself bound by Kaya v Haringey London Borough Council. The question for the House was whether a person temporarily admitted under statutory written authority was “lawfully present in the United Kingdom” within paragraph 4 of the Schedule to the 2000 Regulations.

1. Disposition. The House unanimously allowed the appeal and reinstated the Social Security Appeal Tribunal’s decision in the appellant’s favour. Lord Brown of Eaton-under-Heywood delivered the leading speech. Lord Bingham, Lord Hutton, Lord Rodger and Baroness Hale expressly agreed with his reasons.
2. Per Lord Brown, a person at large in the United Kingdom under the written authority authorised by paragraph 21 of Schedule 2 to the Immigration Act 1971 was “lawfully present” for paragraph 4 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, provided that the person complied with the imposed restrictions. Temporary admission itself supplied a positive statutory authorisation. A grant of leave to enter was unnecessary.
3. Per Lord Brown, section 11(1) of the Immigration Act 1971 deemed a temporarily admitted person not to have entered only for the purposes of that Act. Its purpose was to withhold rights attached to leave to enter, particularly the right to seek an extension of leave. Its purpose was not to protect temporarily admitted persons from prosecution or to determine whether their presence was lawful under other legislation. A deeming provision must be carried as far as its legislative purpose requires, but no further.
4. Per Lord Brown, In re Musisi, reported with R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514, reached the correct result for the wrong reason. Article 32(1) of the Refugee Convention did not assist Mr Musisi because “refugee” there meant a person already determined to satisfy the article 1 definition, not because his temporary admission was unlawful. Kaya v Haringey London Borough Council [2002] HLR 1 had decided the present statutory question incorrectly by adopting the erroneous reasoning in Musisi and misconstruing section 11. Its contrary decision was displaced. Taikato v R (1996) 186 CLR 454 concerned a materially different statutory context.
5. Per Lord Brown, the court had to construe the domestic legislation as enacted, even if the benefits thereby available exceeded the minimum demanded by the European social-assistance treaties. The House left open whether an asylum seeker detained under Schedule 2, rather than temporarily admitted and at large, would be “lawfully present” for the same purpose.

1. House of Lords: In [2005] UKHL 64, unanimously allowed the appeal and reinstated the Social Security Appeal Tribunal’s decision.
2. Court of Appeal: In [2003] EWCA Civ 1131, dismissed the claimant’s appeal from the Commissioner. The court considered itself bound by Kaya v Haringey London Borough Council.
3. Social Security Commissioner: On 10 October 2002, allowed the Secretary of State’s appeal from the Tribunal.
4. Social Security Appeal Tribunal: On 26 January 2001, allowed the claimant’s appeal against the refusal of income support.