Blakesley v Secretary of State for Work And Pensions

Article 23 of the Geneva Convention requires equal public relief only for refugees whose status has been established and who are therefore lawfully staying in the host state. It does not require retrospective payment of the difference between asylum support and mainstream welfare benefits.

Article 28 of the Qualification Directive likewise requires social assistance prospectively for persons recognised as beneficiaries of refugee protection. A distinct asylum-support scheme may meet the basic needs of applicants while claims are determined. That difference does not infringe article 14 of the ECHR where asylum seekers are not in an analogous position to citizens entitled to mainstream benefits and the distinction is objectively justified.

The appellant, an Eritrean national, was recognised as a refugee in July 2008 after an asylum appeal succeeded. She then received income support from July 2008, but sought back-payments for the earlier period during which her asylum claim had been pending.

The First-tier Tribunal dismissed her appeal. The Upper Tribunal upheld that decision in [2013] UKUT 433 (AAC). The appellant contended that retrospective payment was required by article 23 of the Geneva Convention, article 28 of Council Directive 2004/83/EC and article 14 of the ECHR.

The central issue was whether those international instruments required successful asylum seekers to receive mainstream welfare benefits retrospectively, despite the repeal of the domestic provision allowing backdating.

1. Appeal dismissed unanimously. Lord Justice Jackson, with whom Lord Justice Kitchin and Lord Justice Floyd agreed, held that article 23 of the Geneva Convention did not require retrospective income-support payments.
2. Read in the context and scheme of the Convention, the expression refugees lawfully staying denotes refugees whose status has been established by the Secretary of State or on appeal. A person may in fact satisfy the definition of refugee before that determination, but is not thereby lawfully staying in the United Kingdom for article 23 purposes. The distinction between rights based on physical presence and those based on lawful stay was supported by [2012] UKSC 12.
3. It was consistent with the Convention’s humanitarian purpose for all asylum seekers to receive basic accommodation and support while their claims were processed, and for successful applicants to receive mainstream benefits once their status was established. Article 23 did not require a lump sum for the historic difference between those forms of support.
4. Article 28 of Council Directive 2004/83/EC had the same prospective operation. Beneficiaries of refugee protection were persons whose refugee status had been established, and the requirement that they receive social assistance imposed no express or implied duty to make retrospective payments. The court did not need to decide direct effect, although it expressed a provisional view that the article would not have direct effect on the appellant’s construction.
5. The article 14 claim also failed. The statutory repeal date was immaterial if the repeal was compatible with the United Kingdom’s international obligations. Asylum seekers were not in an analogous position to British citizens needing social assistance. In any event, the different treatment was objectively justified, consistently with [2005] UKHL 37, by the distinct international basis of asylum support and the legislature’s and executive’s role in allocating national resources.

• Court of Appeal (Civil Division). Dismissed the appellant’s appeal and affirmed the Upper Tribunal’s decision: [2015] EWCA Civ 141.
• Upper Tribunal (Administrative Appeals Chamber). Dismissed the appellant’s appeal from the First-tier Tribunal: [2013] UKUT 433 (AAC).
• First-tier Tribunal. Dismissed the appeal against the refusal to award retrospective income support.