Kola & Anor v Secretary of State for Work and Pensions

The court was required to construe the phrase "on his arrival" in regulation 70(3A) of the Income Support (General) Regulations 1987 (as inserted by the 1996 Regulations). The provision was held to be ambiguous as to whether an asylum claim had to be made at the port of entry to qualify for urgent income support. The House of Lords preferred the approach adopted in R (Q) v Secretary of State for the Home Department: an asylum claim will satisfy the requirement if it is made at the first available opportunity, assessed by reference to practical opportunity and the asylum seeker's personal circumstances, including the effect of anything said or done by a facilitating agent.

Section 11(1) of the Immigration Act 1971 was held to be concerned with the legal fiction of entry rather than the meaning of "arrival" and thus not decisive. The appellants' claims were accepted as made "on their arrival" under this construction and the appeals were allowed.

Background and legislative context:

• The case concerns the operation of the benefits regime introduced by the 1996 legislation and, in particular, regulation 70(3A) of the Income Support (General) Regulations 1987 which defined an "asylum seeker" for urgent case payments as one who submits a claim for asylum "on his arrival" in the United Kingdom. The 1996 regime followed earlier secondary legislation and the decision in R v Secretary of State for Social Services, Ex p Joint Council for the Welfare of Immigrants (JCWI).
• The Social Security Advisory Committee had advised that the phrase was unclear and that a comprehensive definition would be needed to avoid unfairness; the Secretary of State nevertheless re-enacted the provision and relied on the plain meaning of "on his arrival".

Facts and procedural history:

• Davida Kola arrived clandestinely on 27 November 1998 and was taken to Lunar House where she claimed asylum the same day. She applied for income support four days after arrival; her application was refused.
• Ibrahim Mirzajani arrived clandestinely on 22 March 1999, presented himself at a police station and claimed asylum the same day. He applied for income support 16 days after arrival; his application was refused.
• Both claims were rejected successively by an Adjudication Officer, an Appeal Tribunal, a Social Security Commissioner (Mr Commissioner Angus) and the Court of Appeal which held that neither had claimed asylum "on [their] arrival" (Court of Appeal: [2004] EWCA Civ 638).

Issues framed by the court:

1. What is the correct construction of "on his arrival" in regulation 70(3A)?
2. Whether facilitating agents, language difficulties, duress or other circumstances bearing on the asylum seeker's state of mind and practical opportunity to claim should be taken into account.
3. Whether section 11(1) of the Immigration Act 1971 or Article 31 of the 1951 Refugee Convention compelled a construction requiring claim at the port of entry.

Court's reasoning and conclusion:

• The court held that section 11 addresses the technical question of "entry" and does not resolve the meaning of "arrival" in regulation 70(3A).
• The regulation was ambiguous. A strict construction requiring claim to an immigration officer at a designated port would produce manifest unfairness in many situations (for example clandestine entry, absence of immigration staff, illness or duress) and the SSAC had identified such ambiguities.
• The House of Lords adopted the approach from R (Q) v Secretary of State for the Home Department: the correct test is whether, having regard to practical opportunity and the asylum seeker's personal circumstances (including the effect of any facilitating agent), the asylum seeker could reasonably have been expected to claim asylum earlier. That approach should be followed in future cases.
• Applying that approach the appellants had claimed asylum at the first available opportunity and their disqualification from benefit was not justified; the appeals were allowed and the respondent was to pay costs.

Appeal allowed. The House of Lords concluded that regulation 70(3A) is ambiguous as to the meaning of "on his arrival"; the correct construction is that an asylum claim will satisfy the requirement if it was made at the first available opportunity, assessed by reference to practical opportunity and the asylum seeker's personal circumstances (including the role of facilitating agents). Applying that test the appellants had made their claims on arrival.

Adjudication Officer (rejected) -> Appeal Tribunal (rejected) -> Social Security Commissioner (Mr Commissioner Angus) (rejected) -> Court of Appeal [2004] EWCA Civ 638 (appeal dismissed) -> House of Lords [2007] UKHL 54 (appeal allowed).