Kola (FC) and another (FC) (Appellants) v Secretary of State for Work and Pensions (Respondent)

An asylum claim was made “on arrival” for the purposes of regulation 70(3A) where it was made at the first reasonably available opportunity. The expression did not invariably require an immediate claim to an immigration officer at the port of entry.

The decision-maker must consider the claimant’s practical opportunity to claim and personal state of mind. This includes the effect of instructions, pressure or dissuasion by an agent who facilitated entry. The technical distinction between entry and arrival under section 11(1) of the Immigration Act 1971 did not determine the regulation’s meaning.

Two asylum seekers entered the United Kingdom clandestinely with the assistance of agents. Each claimed asylum later on the day of arrival, after leaving the port of entry, and subsequently claimed income support. Their benefit claims were rejected because they had not claimed asylum at the port.

An Adjudication Officer, an Appeal Tribunal and a Social Security Commissioner rejected each claim. The Court of Appeal dismissed their appeals in [2004] EWCA Civ 638.

The issue before the House was whether the requirement in regulation 70(3A) of the Income Support (General) Regulations 1987 that asylum be claimed “on arrival” invariably required a claim at the port of entry, or permitted a claim made at the first reasonably available opportunity.

1. The appeals were allowed unanimously. Lord Brown of Eaton-under-Heywood delivered the leading opinion. Lord Bingham, Lord Hope, Baroness Hale and Lord Carswell agreed with his reasoning and proposed order.

2. Per Lord Brown, regulation 70(3A) of the Income Support (General) Regulations 1987 was ambiguous. The words “on his arrival” did not unambiguously require an asylum claim to be made immediately to an immigration officer at the port of entry. The legislative history showed the Minister’s intention to exclude in-country claimants, but the regulation did not contain the comprehensive definition needed to achieve that result.

3. Section 11(1) of the Immigration Act 1971 did not resolve the ambiguity. It created a technical fiction about entry for immigration-control purposes, but did not define arrival. Its opening words contemplated arrival before disembarkation.

4. Per Lord Brown, a claim satisfies regulation 70(3A) where the claimant could not reasonably have been expected to claim earlier. The decision-maker must consider both the practical opportunity to claim and the claimant’s state of mind, including the effect of anything said by an agent who facilitated entry. The approach in R (Q) v Secretary of State for the Home Department [2004] QB 36 was applied. The approach to agents in Shire v Secretary of State for Work and Pensions [2003] EWCA Civ 1465 was rejected as less fair and realistic.

5. Lord Hope emphasised that a claimant who was physically unable to contact an immigration officer, or was dissuaded by an agent or courier, could satisfy the regulation by claiming asylum at the first available opportunity. On the accepted facts, both appellants had done so by claiming on the day of arrival.

6. Per Lord Brown, article 31 of the 1951 Refugee Convention reflected a policy against penalising refugees for necessary illegal entry. It had no direct bearing on the construction adopted. Whether exclusion from benefits constituted a penalty under article 31 was left for another case.

7. The respondent was to pay the appellants’ costs in the House and below. Any further order was to be that accepted by the parties as appropriate.

1. House of Lords: Allowed both appellants’ appeals unanimously and displaced the Court of Appeal’s construction of regulation 70(3A).

2. Court of Appeal: In [2004] EWCA Civ 638, dismissed the appeals because neither appellant had claimed asylum before leaving the port of entry.

3. Social Security Commissioner: Dismissed the jointly heard appeals, holding that “on arrival” required a claim within the perimeter of a designated port.

4. Appeal Tribunal and Adjudication Officer: Rejected the income-support claims because the asylum claims had not been made at the port of entry.