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[2003] UKSSCSC CIS_2456_2000 (15 July 2003)

CIS/2456/2000

CIS/2463/2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. (1) My decision on file CIS/2456/2000 is that the decision of the Income Support Tribunal dated 8 February 2000 on Case No. S/45/160/1999/01237 is not erroneous in law.

(2) My decision on file CIS/2463/2000 is that the decision of the Income Support Appeal Tribunal dated 6 December 1999 on Case No. S/45/164/1999/00113 is not erroneous in law.

History of the Appeals

1. On file CIS/2456/2000 the claimant appeals, with the leave of a Social Security Commissioner, against the tribunal's decision that the claimant, "M", is a person from abroad within the meaning of regulation 21 of the Income Support (General) Regulations with an applicable amount of nil and, not being an asylum seeker within the meaning of regulation 70(3A)(a) of those Regulations, is not entitled to Urgent Case Payments of Income Support under Part VI of those Regulations.
2. On file CIS/2463/2000 the claimant, "K", appeals, with the leave of a Social Security Commissioner, against the tribunal's confirmation of the Secretary of State's decision that the claimant is a person from abroad and is not entitled to Urgent Case Payments of Income Support.
3. In neither of these cases is it disputed that the claimant is a person from abroad within the meaning of regulation 21(3) of the Income Support (General) Regulations 1987. The consequence of that is that by virtue of paragraph 1 of that regulation as read with Schedule 7 the claimants' applicable amounts for the purposes of calculating entitlement to Income Support are nil with the further consequence that their entitlement is nil. The matter which is in dispute in each case is whether or not the claimant is an asylum seeker within the meaning of regulation 70(3A)(a) of the Regulations and therefore entitled to Urgent Case Payments of Income Support under Part VI of the Regulations.
4. Regulation 70(3A)(a) of the General Regulations is, insofar as relevant to these appeals, in the following terms:-

"For the purposes of this paragraph, a person –

(a) is an asylum seeker when he submits on his arrival (other than on his re-entry) in the United Kingdom from a country outside the Common Travel Area a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or required to leave, the United Kingdom and that claim is recorded by the Secretary of State as having been made; …".

In paragraph (3B) of regulation 70 "the Convention" is defined as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the protocol to that Convention and "the Common Travel Area" is defined as the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively.

5. "M" is an Iranian who claims that he was forced to leave Iran because of his political activities. He was driven to the Turkish border by an agent and then travelled to Belgium by lorry. In Belgium he was transferred to the back seat of a Volvo car in which he was driven via the Channel Tunnel to England. At some point after the car emerged from the tunnel, at night, the claimant was set down by the driver and told to keep walking until he reached the police station. After walking for some distance the claimant encountered a woman in uniform, probably a police woman. She radioed for assistance, a police car arrived and the claimant was taken to a police station. He was then moved to another police station where eventually he was interviewed, with an interpreter, and claimed political asylum. The claim for asylum was made on the same day as the car carrying the claimant arrived in England, 22 March 1999.
6. "K" is a Kosovan who arrived in the United Kingdom from Kosovo on 27 November 1998 together with her husband and two children. The family had travelled, hidden, by lorry. They changed lorries 3 times and were told on the last change that the next stop would be their destination. They did not know where they were going. Mrs K knew that she had arrived in England when, still hidden in the lorry, she heard an announcement "Welcome to England". Some time later the lorry stopped and the family were told to alight. Later they met three Kosovan Albanians who gave them the telephone number of an interpreter who worked for a solicitor. The interpreter took the family to the Home Office Immigration Department at Croydon where Mrs K made a claim for asylum. That claim was made on the same day as the lorry arrived in England.
7. In both cases the claimants applied for Income Support. Both claimants were refused an Income Support allowance and because the adjudication officers concerned regarded them as persons from abroad who had not made applications for asylum "on … arrival" in the United Kingdom. Urgent Case Payments were refused also. Both claimants appealed to tribunals. Both appeals were dismissed on the grounds that the claimants did not come within the regulation 70(3A)(a) definition of an asylum seeker.
8. In Mr M's case the tribunal's reasons for its decision are stated to be:-

" 12. The Tribunal agrees that the [thrust] of the case-law requires a claim for asylum to be made either while going through Immigration Control or while within the port of entry. It seemed to the tribunal that the approach adopted in CIS/250/99 is correct. The [test] must be an objective [one] and the phrase "on arrival" must be construed as a term of art in immigration law.

13. On the basis of that decision, and the earlier case law, the Tribunal found, on the evidence, that [Mr M] had not claimed asylum on his arrival.

14. Even if a degree of flexibility is to be imported with the phrase 'on his arrival', [Mr M] would not have succeeded. His medical condition was not disabling (he was conscious and able to speak and walk) and his method of entry was not so unconventional as to justify a flexible approach.

15. Turning to the argument over Article 31 of the Refugee Convention the Tribunal was presented with 2 conflicting and recent decisions of Commissioners CIS/4439/1998 and CIS/3646/98. The Tribunal preferred the approach set out in CIS/3646/98, paragraph 9. The Tribunal noted that the Commissioner was aware of, and cited, the earlier decision          4439.98 but decided [not?] to follow it.

16. Accordingly, the Tribunal dismissed the appeal in the terms contained in the Decision Notice.".

9. In Mrs K's case the essential part of the statement of the tribunal's reasons for its decision is:-

"9. The claim was made the same day as their arrival.

10. [The claimant's representative] made a number of submissions regarding the crucial issue in the case, the meaning of 'on arrival'. In addition representations were made in respect of the European Convention for the Protection of Human Rights.

11. In order for Mrs K's claim for an Urgent Case Payment to succeed, she needed her claim for asylum on arrival in the U.K., alternatively the specific Regulations are to be deemed ultra vires.

12. Mrs K did not make an application 'on arrival.' I feel bound by the decision of the Commissioner's CIS/3231/1997. It was some time after entry into the U.K. that Mrs K made her application at Croydon.

13. In respect of the argument that the Regulations are ultra vires this is a matter for judicial review and not for me.".

10. Both claimants have appealed the tribunals' decisions on the grounds that the expression "on … arrival" as used in regulation 70(3A)(a) is to be construed flexibly to take account of the circumstances in which the claimant arrived in the United Kingdom and that the regulation has to be interpreted in a way which is compatible with the United Kingdom's obligations under the Geneva Convention on the Treatment of Refugees. The Secretary of State's response is encapsulated in paragraph 10 of his representative's written submission of 4 November 2002 and is that my decision on file CIS/43/2000 to the effect that to comply with the regulation an asylum seeker must make his application before leaving the port of arrival is a correct statement of the law consistent with Article 31(1) of the Convention.
11. I heard the appeals on 1 May 2003. Neither claimant was present. Both were represented by Mr P Draycott of Counsel instructed, through the Free Representation Unit, by Fulham Legal Advice Centre. The Secretary of State was represented by Miss J Anderson of Counsel instructed by the Solicitor to the Secretary of State for Work and Pensions, Mr L Scoon being the representative solicitor present at the hearing. I am grateful to all three for their work on the cases. Mr Draycott explained that Mr M was not at the hearing because he had to attend a hospital out-patient's appointment and Mrs K was difficult to contact.
12. At the outset of the hearing there was a discussion as to whether or not it should proceed or be adjourned until the Court of Appeal had decided the appeal against my decision in the case of Shire on file CIS/2702/00. Miss Anderson took the view that the hearing should be adjourned to avoid the need for extra submissions when the decision on Shire is issued. Mr Draycott considered that the hearing should proceed as my decision on this appeal might be relevant to the Shire case. It was understood that the Court of Appeal hearing in that case would be in July of this year. I decided that although there was much to be said for waiting for the decision of the Court of Appeal the hearing should proceed since that was the claimants' preference.

Mr Draycott's Submission

13. Mr Draycott said that there was a factual distinction between Shire's case and the cases now under consideration. In the instant cases both claimants had made their application for asylum on the day on which they arrived in this country. In Shire's case the claim was not made until the following day. Mr M had walked two hours after arriving through the Channel Tunnel and claimed asylum on his first contact with an official that same day. His was a non-stop journey from the Continent until he met the official.
14. Both appellants were protected by Article 31 of the Geneva Convention. They had come directly from the country of danger to the United Kingdom. There was no reason to regard them as other than refugees. Both had good cause for the method of entry. R. v. Uxbridge Magistrates' Court and Another Ex Parte Adimi [1999] 4 All ER 522 DC was relevant. Article 3 of the Convention prohibited discrimination on the grounds of race, religion or country of origin. Article 33 prohibited refoulment. Article 31 forbade the imposition of penalties on refugees on account of their illegal presence in the host country. It was Mr Darycott's submission that the denial of Social Security Benefits to asylum seekers amounted to the imposition of a penalty.
15. Article 31 of the United Nations Convention on the Law of Treaties signed at Vienna on 23 May 1969 (the Vienna Convention) which came into force on 27 January 1980 provides:-

" 1. A Treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the Treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a Treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the Treaty which was made between all the parties in connection with the conclusion of the Treaty;

(b) any instrument which was made by one or more parties in connection with the conclusion of the Treaty and accepted by the other parties as an instrument relating to the Treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the Treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.".

It was accepted that the Vienna Convention was retrospective in its effect and was, therefore, applicable to the interpretation of the Geneva Convention. Authority for that was to be found in A v. Minister for Immigration and Ethnic Affairs (1997) 190 CLR, 225, 277 and Golder v. United Kingdom (1975) 1 EHRR 524, 532. To comply with the requirements of the Vienna Convention the preamble to the Geneva Convention had to be taken into account in construing Articles 1, 3, 31 and 33 of the Geneva Convention.

16. The principle that human beings shall enjoy fundamental rights and freedoms without discrimination was affirmed by the Charter of the United Nations and by the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly of the United Nations. The preamble to the Geneva Convention, referred to that affirmation.. That principal was, therefore, the broad humanitarian objective which the Vienna Convention required to be taken into account in the interpretation of the Geneva Convention. Simon Brown LJ in the Adimi case, page 527 at d to e, addressed the interpretation of Article 31 of the Geneva Convention and said that in such a document accuracy of language could not be expected. In saying so he was following the dictum of Lord Lloyd in Adan v. Secretary of State for the Home Department [1998] 2 All ER 453 at 458. Lord Lloyd, who clearly had the preamble to the Geneva Convention in mind, said that the true construction of Article 1A(2) of the Convention was likely to be found by seeking a meaning which made sense in the light of the Convention as a whole for the purposes which the framers of the Convention were seeking to achieve. That approach applied to the construction of any Convention. Similarly in R v. IAT Ex Parte Syeda Katoon Shah [1997] Imm A.R. 145 QBD Sedley, J. said at page 152-

"Unless it is seen as a living thing, adopted by civilised countries for a humanitarian end which is constant in motive but mutable in form, the Convention will eventually become an anachronism. The fact that it is today groaning under other burdens, ranging from exploitation by the unscrupulous or the opportunistic to genuine invocation by a previously unimagined volume of asylum seekers, calls for scrupulous attention to every claim but cannot redefine its meaning.".

At page 153 Sedley, J, in remitting the case to the Immigration Appeal Tribunal, referred to its adjudication not being a –

"… conventional lawyer's exercise of applying a legal litmus test to ascertain facts; it is a global appraisal of an individual's past and prospective situation in a particular cultural, social political and legal milieu, judged by a test which, though it has legal and linguistic limits, has a broad humanitarian purpose.".

17. In R. v. IAT Ex Parte Daniel Boahin Jonah [1985] Imm. A.R. 7 QBD at page 13, penultimate paragraph, Nolan, J, in discussing the interpretation of "well founded fear of persecution" said –

"I find this by no means an easy matter to judge, but to my mind the proper approach must be to apply to the word 'persecution' its ordinary meaning as found in the dictionary. I accept, of course, that considerations of policy may require a stringent test to be adopted if this country is not to be flooded with those claiming political asylum, but I can do nothing other than go by the language used in paragraph 134 and I see no reason for giving that language anything but its ordinary meaning. ".

18. Those dicta of the courts, submitted Mr Draycott, indicated that the purposive method had to be applied to the interpretation of Article 31 of the Geneva Convention.
19. Mr Draycott referred me to page 5 of his skeleton argument in which he said that "penalty" is defined in the Concise Oxford Dictionary as –

"1. (a) A punishment, esp. a fine for a breach of law, contract etc.".

I should say that in my edition of the Concise Oxford Dictionary (the Seventh) the primary definition of "penalty" is –

"1. Punishment, esp. payment of sum of money, for breach of law, rule, or contract, (on or under penalty of dismissal etc.); money thus paid; the [disadvantage] of, disadvantage resulting from (quality etc.).".

and in the New Shorter Oxford Dictionary (1993 Edition) the primary definition is –

"1. (a) A punishment imposed for breach of a law, rule, or contract; a loss or disadvantage of some kind, either prescribed by law for some offence, or agreed on in case of breach of contract; specifically, a fine.".

Mr Draycott drew attention to the reference to both the law and to contract. He submitted that a penalty was not just a criminal punishment. It could also be an imposition under civil law or contract. To construe the word "penalty" as contended on behalf of the claimant would not strain the wording of Article 31 of the Convention.

20. Mr Draycott referred me to the written submission by the Deputy Representative of the United Nations High Commissioner for Refugees (UNHCR) (document 192 of the M appeal bundle). He explained that the role of the UNHCR was to supervise the operation of the Convention. Although the UNHCR's views were not binding on the parties to the Convention they were treated with respect. The submission in the bundle had been produced from the London Office of the UNHCR but it had the approval of the Geneva Office. In paragraph 9 of the submission Commissioner Pacey's decision on CIS/597/1999 was criticised. Commissioner Pacey had concluded that the UNHCR's submissions in the Adimi and joined cases were limited to the consideration of Article 31(1) of the Refugee Convention in the context of criminal prosecutions and that therefore the UNHCR considered that the word "penalty" in that Article meant "criminal prosecution" and did not extend to the civil law consequences which may arise under regulation 70(3A)(a) of the Income Support (General) Regulations 1987. However, the UNHCR submitted that it was never suggested in his submissions on the Adimi case, which were limited to the facts and issues in that case, that Article 31(1) of the Convention could not apply to penalties under the civil law.
21. Mr Draycott said that the Adimi etc. were concerned with the prosecution of three asylum seekers for the use of forged entry documents. One was detected when passing through Immigration Control. The other two were detected in the transit zone. The fact that the UNHCR submissions in those cases were focused on the invalidity of a criminal sanction did not prevent other types of penalty being outlawed by the Convention. Paragraph 10 of the UNHCR submission was that there should be no mechanistic application of the terms of the Convention. Paragraphs 11 and 12 made the point that any punitive measure, by which was meant any unnecessary limitation to the full enjoyment of rights granted to refugees under International Refugee and Human Rights Law, applied by states against refugees who would come under the protection of Article 31(1) could arguably be interpreted as a penalty. Seen in that light, regulation 70(3A)(a) clearly penalised asylum seekers arriving in a manner covered by Article 31 of the Convention for failing to comply with the requirements for the payment of Income Support. It amounted to a punishment for such non-compliance because it disqualified asylum seekers from a benefit to which they would otherwise have been entitled. The restriction of financial support to the lower level available under the National Assistance Act 1948 in the case of those failing to satisfy procedural requirements unrelated to the merits of the asylum seeker's claim would seem to be a penalty within the meaning of Article 31(1) (paragraph 15 of the UNHCR submission).
22. Mr Draycott referred to paragraph 19 of the UNHCR submission which, in turn, referred to the High Commissioner's global consultations project and the conclusion that –

"Needy asylum seekers should be given all necessary support covering the basic necessities of life, including food, clothing and basic accommodation, throughout the asylum procedure until a final decision is taken on their application. If necessary, this should also apply to asylum-seekers who are permitted to work but are unable to find adequate employment.".

In the same paragraph one was reminded that Article 13 of the European Council Directive on the Minimum Standards for the Reception of Asylum Seekers in Member States stipulated that –

"1. Member States shall ensure that material reception conditions are available to applicants when they make their application for asylum.

2. Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence.".

The submission argued that as the Directive would soon be coming into force it was highly desirable that all social assistance be provided in accordance with the provisions laid down in that instrument. In that connection Mr Draycott referred me to page 3 of M's bundle. That was a copy of a Home Office form SAL2 in which Mr M was advised that he could apply to the Home Office for permission to take employment if his asylum application had not been resolved within six months. At pages 7 and 8 of Mr K's file there was a document with similar advice. The UNHCR view was that if employment was restricted there should be financial support. Restrictions on basic rights should be proportionate. A needy asylum seeker was to be given the basic support of housing, food, clothing etc. Under the National Assistance Act all that people got, at the best, was benefit in kind and housing accommodation. In effect all that was given was food and accommodation, not clothing. All of this documentation gave an insight to the meaning of Article 31. The UNHCR had produced the reference to asylum seekers to show that Article 31 applied to civil matters as well as to criminal.

23. The House of Lords and the domestic courts have been helped, said Mr Draycott, by the work of academics. In the Adimi case reference had been made to Grahl-Madsen's work "The Status of Refugees in International Law" and the author's assertion that "penalty" includes a criminal sanction, prison, fines, corporal punishment and any other punishment for any offence. Hathaway – "the Law of Refugee Status" (1991) was frequently referred to in the Appeal Court. At paragraph 2.4 on page 50 of that work it was stated that refugee status was not compromised by illicit entry to the host country. Article 31 prevented any adverse inference against the claimant. The Article 31 protection was not limited to protection against criminal sanction. There was no exclusion of illegal entrants from refugee status. Detention could be a penalty. That was addressed by Article 31(2) which refers to the invalidity of restrictions "other than those necessary".
24. Ryszard Cholewinski – "The Enforced Destitution of Asylum Seekers in the United Kingdom: the Denial of Fundamental Human Rights." (International Journal of Refugee Law (1998) Volume 10, No. 3) was specifically concerned with the Asylum and Immigration Act 1996 and regulation 70(3A)(a). In paragraph 4.1.2 it was argued that the United Kingdom's withholding of benefits from asylum seekers who had not complied with the requirement of regulation 70(3A)(a) was a penalty imposed on asylum seekers who had entered the country clandestinely and then applied for asylum after their arrival. That penalty was in breach of Article 31. That criticism, said Mr Draycott, should be considered together with the good practices enjoined on signatories to the Convention by the UNHCR. The gist of the leading judgment in R. v. Secretary of State for Social Security ex parte B [1996] 2 All ER was that the restriction on benefits then in force made it difficult for asylum seekers to last out in this country until an appeal against refusal of asylum had been heard. The result was constructive refoulment.
25. Mr Draycott referred to paragraph 235 on page 38 of the Report of the United Nations Committee on the elimination of racial discrimination. There the committee expressed its concern about the effect of the then Asylum and Immigration Bill which had been published on 30 November 1995 and was enacted in 1996. The concern was that the proposed legislation would alter the status of many persons living in the United Kingdom in an adverse and discriminatory manner by, inter alia, prohibiting employers from employing persons who were in the process of appealing a refusal of asylum. The legislation would also deny a number of social services to people, including asylum seekers, who had been granted permission to remain in the United Kingdom. It was a matter of deep concern that most of the affected persons would be persons belonging to ethnic minorities. Mr Draycott said that the report clearly contemplated indirect discrimination. The committee had followed up that report on 2 March 1998 and recommended close monitoring of the operation of 1996 Act. It was recognised by the UNHCR that there was a degree of discretion available to governments and that restrictions could be justified if proportionate and justifiable with regard to the objective. In Ex Parte B Simon Brown LJ accepted that the measures taken to restrict the benefits available to asylum seekers had a justifiable objective but the effect was to drive asylum seekers back to the country of origin. Mr Draycott submitted that in this case there was a strong argument that the measures were not proportionate and amounted to a breach of Article 3 of the Convention and its prohibition on discrimination. In the instant cases neither claimant had been granted leave to remain when coming into the country. They were clearly illegal entrants for the purposes of section 33(1) of the Immigration Act 1971. If they had claimed asylum at their respective ports of entry, as required by regulation 70(3A)(a), they would have been "legal entrants" having been granted temporary admission to the United Kingdom pending the resolution of their claims by the Secretary of State.
26. Mr Draycott referred to the Adimi cases again. The accused had been carrying false passports. None of the three were prosecuted for entering the United Kingdom. They were all prosecuted for carrying false documents. At page 537 of the report, at d, Newman J followed Simon Brown LJ's interpretation of the scope of Article 31(1) of the Convention and said –

"A strict linguistic interpretation points to the character of the illegality being the fact of presence or entry 'without authorisation'. On this interpretation the illegality of the means, whereby entry or presence without authorisation had been achieved, would be outside it. No one contends for such a limited interpretation. The Convention is a living instrument changing and developing with the times so as to be relevant and to afford meaningful protection to refugees in the conditions in which they currently seek asylum.".

27. Mr Draycott referred to Lord Hoffman's dictum at H on page 652 of the report on Shah's case. The Secretary of State had argued in that case that being a woman could not be regarded as being a member of a group subject to discrimination. At paragraph E on page 653 Lord Hoffman said that the source of the fear experienced by the individuals was a personal fear directed against them as individuals. The inability or unwillingness of the State to do anything to protect them was not personal. The evidence was that the State would not assist them because they were women and denied to them a protection which it would have given to men. Those two elements combined to constitute persecution within the meaning of the Convention. At paragraph G he said it was a fallacy to say that persecution of a few members of a class was not persecution on account of membership of the class because not all members of the class were being persecuted.
28. On pages 7 and 8 of Commissioner's decision CIS/4117/97 paragraph 18 contains an abridged version of the Hansard record of the House of Commons debate on the House of Lords amendments to the Bill which was enacted as the 1996 Act. The last sentence of that abstract records the Secretary of State as saying –

"It is wrong that we should enable them to do so by extending benefit and rewarding those who fail to tell the truth simply to get a better immigration status by claiming in-country.".

Mr Draycott submitted that just as in the Adimi cases the cases referred to by the Secretary of State were covered by Article31 of the Convention.

29. Mr Draycott cited paragraph 43 of the Immigration Appeal Tribunal's decision in the case of Ameen [2002] UKIAT07246, HE43346-2001. The tribunal had considered what should be the test for discrimination and decided that since Lord Steyn and Lord Hoffman had both declined to make a choice between the "but for" test and the "effective cause" test in the Shah and Islam cases and in the light of the decision in Montoya [2002] INLR 399 it was open to the tribunal to adopt the "contributory cause" test along the lines set out in the "Michigan Guidelines on Nexus to a Convention Ground" [2002] 23(2) Michigan Journal of International Law 207-221. At paragraph 48 of its decision the tribunal had also given consideration to the decision of the United States Court of Appeal for the 9^th Circuit in Gafoor v. INS (2000) 231 F3d 645 in which it was said that the harm to the individual need only be motivated in part by a ground proscribed by Article 31 of the Convention. In paragraph 49 the tribunal refers to the Australian Federal Court decision in Rajaratnam v. IMA [2000] FCA 1111 and the Federal Court of Canada decision in Zhu (DC.NO.A – 1017-91) as authority for the view that there need not be only one reason for the discrimination. Mr Draycott submitted that the Secretary of State's comments as recorded in Hansard showed a clear connection between a claimant's act of deception on entering the country and the penalty of restricted benefit.
30. As to the effect of section 21(1) of the National Assistance Act 1948, Mr Draycott said that the terms of that provision were-

"Subject to and in accordance with the provisions of this Part of the Act a local authority with the approval of the Secretary of State, and to such extent as he may direct, shall make arrangements for providing:

(a) residential accommodation for person's aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not available to them;".

That was the gateway to assistance for the asylum seeker. There was no other help if he did not need accommodation. The effect of regulation 70(3A)(a) of the General Regulations was that the asylum seeker had to rely on section 21(1) for help. In R. v. Hammersmith and Fulham London Borough Council, Ex Parte M (1997) 30 HLR 10 CA Lord Woolf, MR accepted that the asylum seeker could not rely on section 21 for help. It did not provide for the claimant who simply lacked money. He submitted that theoretically an asylum seeker had an entitlement under regulation 21 but only if he was destitute. In the period of time which must elapse before he reached that state the total lack of entitlement to assistance must be a penalty in terms of Article 31. The decision in Ex Parte M was followed by Carnworth, J, in R. v. Newham London Borough Council Ex Parte Gorenkin(1997) 30 HLR 278 QBD. He rejected the argument that asylum seekers should receive help other than accommodation. The care and attention which was relevant was that care and attention which could be provided in accommodation. Therefore, if there was no provision of accommodation by the local authority there was no power to provide care and attention. Also in R. v. Secretary of State for Health Ex Parte Hammersmith and Fulham Borough Council and Others (1997) 30 HLR 525 QBD Laws J held that section 21 neither authorised nor contemplated the making of cash payments to those in need and in R. v. Newham London Borough Council Ex Parte Plastin (1997) 30 HLR 261 QBD Keene J upheld the local authority's refusal of assistance under section 21(1)(a) notwithstanding that the applicant was 51 years old, had no money, no home, was unable to speak English and did not have a job. In ex parte B Simon Brown LJ listed at page 395 of the report the difficulties facing the asylum seeker as being:-

(1) no access either to funds or to benefits in kind,

(2) no accommodation and no prospect of securing any because of ineligibility for Housing Benefit,

(3) a six months prohibition on seeking employment and poor prospects of obtaining any thereafter,

(4) without family friends or contacts and thus in a position of peculiar isolation and

(5) the prolonged period of waiting for a resolution of the application for asylum

and

(6) the difficulties and expense of pursuing the application.

Miss Anderson's Submission

31. Miss Anderson referred to MacDonald and Blake on Immigration Law and Practice in the United Kingdom. That, she said, was the text which was most sympathetic to asylum seekers. In paragraph 12.12 it stated that the UNHCR materials did not have the force of law or form part of the Geneva Convention on Refugees. Although the courts looked at that material they did not recognise it as binding on them. That was a well established position in immigration law and there was no reason for the approach to the interpretation of Social Security law to be any different. Indeed, Social Security is not a subject within the expertise of the UNHCR and ad hoc opinions from that source were not all that helpful. The material relied on by the claimants indicated a broad discretion to be exercised but was not a source of obligations. She referred to paragraph 8 of the UNHCR letters to Mr Draycott's (document 193 of Mr M's appeal bundle). That indicated that the UNHCR support for the appeals was premised on the understanding that Income Support had been denied to the claimants as a consequence of illegal entry to the United Kingdom. That presupposed what Mr Draycott had been attempting to prove in his submission. The Secretary of State had not been invited to make any submission to the UNHCR and it was not clear what other sources of information the author of the letter had or the status of his submission with UNHCR. Also, as stated in paragraph 12 of MacDonald and Blake, the function of the UNHCR was exhortatory rather than directory. Most people would want to accept the exhortation to treat refugees well but that would apply to their dealings with all people in need. It was of no assistance in the interpretation of statute.
32. There were limits to the sources to which resort could be had for assistance in the interpretation of statute. The debate in the House of Lords case of Pepper v. Hart [1993] AC 539 was as to whether one could use Hansard as an aid to interpretation. The questions split the Appellate Committee. In this case the Secretary of State's submission was that the UNHCR submission had to be treated with caution. Also the Geneva Convention was not binding in the United Kingdom. There had been a long debate in Parliament about the incorporation of the European Convention on Human Rights. The Human Rights Act 1998 had modified the European Convention in various ways and had placed various restrictions on its operation where it was in conflict with the law of the United Kingdom. The European Convention did not automatically overrule domestic primary legislation. It was for the domestic Courts to declare any incompatibility of United Kingdom legislation with the European Convention. That demonstrated the caution needed in considering the relationship between International Treaties on the one hand and United Kingdom legislation on the other. It was wrong to treat the Geneva Convention as binding. It has often been stated by the courts that it is not. The material being put to the Commissioner today in support of the claimants' cases was not helpful.
33. Miss Anderson said that the arguments being put to the Commissioner were completely open-ended. They did not go to the distinction between in-port and in-country applicants for asylum. They were all directed to the generality of the treatment of refugees. They did not admit that a line could be drawn anywhere in that the process of a claimant's arrival in the United Kingdom and application for asylum. It was not helpful to stray too far into those peripheral generalities. As an immigration specialist she could say that asylum seekers varied and there were no generalities which applied to them. Asylum seekers were not always alone. There were strong communities in the United Kingdom. Applicants for leave to remain could frequently produce lists of supporters from their communities. It was wrong to characterise the majority of refugees as people who usually entered this country illegally. There was a difference between an asylum seeker and a refugee. A small proportion of asylum seekers were given refugee status although allowed entry on other grounds. The UNHCR did not, contrary to Mr Draycott's view, think that asylum seekers were to be treated as refugees.
34. Miss Anderson referred to paragraph 19 of the UNHCR letter (document 196 of the M appeal bundle). What the High Commissioner was concerned with was the need to provide food, accommodation etc. for needy asylum seekers. It was the Secretary of State's submission that the quotation in paragraph 19 did not mean that it was wrong to distinguish between in-port and in-country applicants for asylum. The immigration legislation authorised detention of applicants pending the resolution of their applications to ensure compliance with reporting conditions. The object of the Social Security rule enacted in regulation 70(3A)(a) was to encourage immediate applications and enable the Government to plug the claimant into the welfare system. Promulgating the information that the claim for asylum should be made immediately was to the advantage of the claimant. The interpretation of regulation 70(3A)(a) had been considered by Commissioners and it had been decided that it was wrong to equate the restriction of the right to Income Support to destitution. Everything had now been changed by recent legislation. Nowhere did the UNHCR specify the type of assistance which should be given to asylum seekers or refugees. That was completely at the discretion of the contracting State. The experience of the Government in this country was that cash was the worst form of help to give to asylum seekers because it could be removed by the "handlers" and others encountered by the asylum seeker and it could be mis-spent. The interpretation of the Geneva Convention was not normally undertaken in the Social Security jurisdiction. It should not be expected of this jurisdiction to decide if there has been a breach of the Convention. In R(IS) 9/98 the Commissioner decided that as the Geneva Convention had not been incorporated into United Kingdom law a question as to any breach of the United Kingdom's obligations under the Convention was not judiciable.
35. Miss Anderson said that the European Convention on Human Rights was more general in its terms than the Geneva Convention on Refugees. There was a case called Ullah and Do [that is a joint case Ullah v. Special Adjudicator and Do v. Secretary of State for the Home Department, [2002] EWCA Civ 1856]. In that case the Court of Appeal had drawn a line on the broad interpretation of the European Convention on Human Rights. The Convention's meaning was not to be extended to cover indirect breaches of convention rights. There were limits on the stretching of the Convention provisions to cover particular cases. Words were still to have their ordinary meanings. The Secretary of State's submission was that "penalty" means what it says – a punitive measure. He rejected the contention that regulation 70(3A)(a) was punitive. That would be equivalent to saying that anyone denied benefit is being penalised. The implication of construing the denial of benefit as a punitive measure is wide for Immigration Law and the Geneva Convention. It was inappropriate and unnecessary to do so. Professor Hathaway's work was often quoted but not always followed by the Courts. It was difficult to know, in the submissions for the claimants, whether it was discrimination of which the Secretary of State was being accused or persecution.
36. The Secretary of State did not accept, said, Miss Anderson, that the claimants in this case were being penalised for illegal entry to the United Kingdom. She referred to paragraph 16 of Mr Draycott's skeleton argument. The definition of illegal entrant did not make every other entrant legal. "Entry" was not used in the Social Security Regulations because it had a technical meaning. The majority of asylum seekers have no leave to enter the country. They have never applied for it. Often leave to enter was revoked when a subsequent application for asylum was made. Therefore, qualification [based] on entry would leave many with no benefit for a long time. It was, therefore, wrong to say that those who were not illegal were legal.
37. It was wrong to equate the denial of benefit under regulation 70(3A)(a) to racial discrimination. There was no difference in the treatment given to different people. The basis of the different entitlements to benefit was not based on race. A claim of discrimination needs to be established by evidence. Speculation or generalisations were not enough. If asylum seekers as a group were being discriminated against that would be a case: some qualify and some do not. The distinction between the qualifiers and non-qualifiers has not been shown to be discriminatory. The Secretary of State saw no discrimination in drawing a line between in the in-port applicants for asylum and in-country applicants.
38. Miss Anderson agreed with Mr Draycott's view that the decision in the Jonah case was the authority on interpretation. It said that words have their ordinary meaning. It followed that the absence of a benefit could not be construed as a penalty. The whole language of punishment and offences was not appropriate in the interpretation of regulation 70(3A)(a).
39. The argument for the claimant seemed to be, said Miss Anderson, that asylum seekers would be driven back to danger. That was not in fact so. The most likely result of an asylum seeker finding that it was too difficult to stay in this country while his asylum application was being processed would be his departure to another State. It was merely speculation to try to say what the asylum seeker would do.
40. The Ameen case was not a starred determination of the Immigration Appeal Tribunal. That tribunal made it clear when it was giving legal guidance. In the immigration law each case was decided on its own facts. Tribunals did not follow one another. Mr Draycott had said that there was a connection between the claimant's by-passing of Immigration Control and the "penalty" of restriction on entitlement to benefits. The Secretary of State maintained that there was no such connection.
41. The Secretary of State's submission was that the interpretation of regulation 70(3A)(a) read in the light of Article 31 of the Convention posited by Mr Draycott was not practical. All the circumstances affecting the claimant were ascertainable in an in-port case. Nothing should be ascertained when claimants came into the country in a lorry and the authorities would, therefore, have to ascertain when they had come in. It was inappropriate for the Secretary of State to have to adjudge on that matter because it was a question for the immigration appeal process. There should be no risk of conflict between the immigration process and the social security process. The Secretary of State for Social Security was not geared to deal with immigration questions and neither was the Commissioner.
42. Miss Anderson said that the Secretary of State's primary submission was that the case simply concerned the interpretation of the expression "on … arrival" used in regulation 70(3A)(a). The whole idea was that physical arrival, not some extended conception of entry, was to determine the claimant's entitlement to benefit. For example, she knew of a case where the asylum seeker said that he had not been able to claim asylum earlier than he did because he could not stand the weather. Regulation 70(3A)(a) has to be applied in practical terms and consistently. Clear guidance was needed.
43. There was nothing in the legislation to warrant a concept of reasonable behaviour as argued for in Mrs K's case. In the case of Mr M it had been said that he claimed immediately on seeing an official but in a sparsely populated area where would he have met an official? The regulation said "on … arrival" in the United Kingdom, not the first point of dropping off. "On … arrival" is unambiguous. It means physical arrival. It was quite clear when one had arrived in the United Kingdom. There were no green borders. The Secretary of State was not imposing a punishment with regulation 70(3A)(a). It benefited everybody if claimants made the application for asylum promptly. The requirement to do so applied across the board without distinction between groups. Regulation 70(3A)(a) had a clear meaning which should not be stretched to encompass claimants who did not come within the definition which it enacted.

Mr Draycott's Response

44. Mr Draycott said that he had not touched on the way in which International Law could be relevant to the interpretation of domestic legislation. The earlier written submissions for the claimants did touch on that. Apart from the ambiguity in regulation 70(3A)(a) it and other social security provisions referred to international treaties or conventions. Section 2 of the Asylum and Immigration Appeals Act 1993 and other provisions in the 1993 and 1996 Acts all demonstrated that the legislation was all part of a process to codify the application of treaty obligations. So it was legitimate for the Commissioner to interpret the International conventions.
45. The appellants sought to construe regulation70(3A)(a) in accordance with Article 31 of the Convention on Refugees. The UNHCR materials related to the interpretation of Article 31. There were numerous references by Simon Brown LJ on the interpretation of the Convention. Both of the claimants' files were given to the UNHCR office with all the submissions and Commissioners' decisions. The UNHCR, therefore, knew what was involved.
46. At  J on page 534 of the report of the Adimi case there was a reference to Lord Keith's speech in Ex Parte Sivakumaran (UN High Commissioner for Refugees intervening) in which he said that as the United Kingdom had acceded to the Convention on Refugees and the protocol their provisions had for all practical purposes been incorporated into United Kingdom Law.
47. As to the question of destitution, Mr Draycott referred to page 97 of the M appeal bundle, the record of the tribunal's proceedings. Mr M had not received any assistance since he had arrived in the United Kingdom. He had lived hand to mouth and by borrowing. The Commissioner should disregard Miss Anderson's experience of asylum cases and rely on the objective academic evidence. At footnote 11 on page 465 of Cholewinski's Article on enforced destitution of asylum seekers in the United Kingdom reference was made to the hardship for the disabled and asylum seekers caused by the removal of non-contributory benefits. Under section 9 of the Asylum and Immigration Act 1996 persons subject to Immigration Control were not eligible for public housing. That applied to both local authority waiting lists and the Homeless Register. The 1996 Act removed Child Benefit from asylum seekers. Footnote 20 on page 467 of Cholewinski's article drew attention to the Social Security Advisory Committee's expectation that asylum seekers without an address would face practical difficulties in registering with a family doctor. Footnote 23 on page 468 of the article remarked on the statistical evidence that applications for asylum made after entry into the United Kingdom were more likely to be successful than those made at entry.
48. Miss Anderson was mistaken in her view that asylum seeker's did not have the same protection under Article 31 as did those whose refugee status had been established. At F on page 527 of the report on the Adimi case Simon Brown LJ said that it was not in doubt that Article 31 extended not merely to those ultimately accorded refugee status but also to those claiming asylum in good faith (presumptive refugees). The NAS system post-dated the arrival of the claimants. The Adimi decision obviously regards Article 31 as relevant to interpretation. Ullah's case did not seem relevant. It was concerned with whether or not Articles 8 and 9 of the European Convention of Human Rights had effect since the enactment of the Human Rights Act 1998.
49. Mr Draycott said that the repercussions of his view of regulation 70(3A)(a) for Article 6 of the European Convention presented no problem as tribunals were subject to that Article. The discrimination in the operation of regulation 70(3A)(a) arises from the disproportionate effect of a neutral provision. He referred the European Court of Justice decision in the case of O'Flynn v.Adjudication Officer [Case -237/94, reported in the Social Security Commissioner's decisions as R(IS) 4/98]. In that case the European Court had said that there was no need for a statistical study of those affected by a discriminatory provision if the discrimination was self-evident. He did not accept Miss Anderson's point that an asylum seeker having difficulty pursuing his appeal against refusal of leave to enter would simply go to another country. Once a claim for asylum had been made it had to be dealt with in the country where it was made. The Immigration Tribunal decision in Ameen was useful because of the references to academic and judicial authority.
50. Miss Anderson had said that it was unreasonable to expect Social Security Appeal Tribunals to deal with questions of whether or not a claim for asylum had been made as soon as reasonably practicable. The Immigration Appeal Tribunals had no problem with that and Home Office officials dealt with such questions on a daily basis. Also, under the new provisions there were forms with specific questions. Under section 55 of the Nationality, Immigration and Asylum Act 2002 there was an obligation on the applicant for asylum to seek assistance and make himself known as soon as possible. Mr Draycott rejected the argument that his submissions were open-ended. He said that there was clear guidance as to the treatment of asylum seekers in the Adimi case which had been put into legislative effect.

Consideration

51. In my decisions on CIS/43/2000 CIS/2702/2000 I decided that the "port perimeter" test which I enunciated in CIS/2719/1997 was the interpretation of regulation 70(3A)(a) which came nearest to the legislative intention as that intention was indicated by ministerial statements in both Houses of Parliament. The question raised for me by the submissions put to me on behalf of both claimants by Mr Draycott is whether or not there is anything in those submissions or the materials to which he referred which should persuade me to change my view that regulation 70(3A)(a), as interpreted in CIS/2719/97 and CIS/43/00, cannot be applied to the claimants in the instant appeals because to do so would breach Article 31 of the Convention on Refugees by imposing a penalty on asylum seekers in respect of the illegality of their entry to the United Kingdom or, breach Article 3 of the Convention by discriminating against asylum seekers. I am not so persuaded.
52. In CIS/2719/97 I detailed the Ministerial statements to Parliament and the submission to the Social Security Advisory Committee by the Secretary of State which identified the mischief, or the administrative problem, which regulation 70(3A)(a) was intended to meet. I justified my recourse to that background material by invoking the House of Lords decision in Pepper v. Hart but I did not need to do so. It is the long established practice of Social Security Commissioners to have recourse to the relevant background papers as an aid to the interpretation of Social Security Regulations (R(G) 3/58, R(M) 1/83, R(SB) 6/86 and CIS/5177/97). Those papers include the papers of the Social Security Advisory Committee and I think that they also include Hansard records of proceedings which relate directly or indirectly to Social Security regulations. The mischief identified was that if an application for asylum was made "in-country" the processing of an appeal against a refusal of asylum was much longer than that of an appeal against the refusal of an application made at Immigration Control. The purpose of regulation 70(3A)(a) was to ensure that unsuccessful in-country applicants for asylum would not be entitled to Income Support Urgent Case Payments during the longer appeal process which could not have been invoked had the application been made at the first encounter with an immigration officer.
53. As Mr Draycott submitted, the facts of the two instant cases are fundamentally different from those of the cases which I decided on files CIS/2719/97, CIS/2702/2000 and CIS/43/2000. In those earlier cases the claimants had all arrived in the United Kingdom at a designated port of entry and had passed through Immigration Control. There was, therefore, no physical difficulty about making an application for asylum before leaving the port of entry. In the instant cases, however, the claimants, according to their account, were smuggled into the country in vehicles and did not alight from the vehicles until they were clear of the perimeter of the port of arrival and probably had no choice as to where they would alight. Both made the application for asylum on the same day and within hours of alighting from the vehicles. Can the "port perimeter" test which I have applied in my three earlier decisions have any relevance to them? In deciding those earlier cases I was aware that the port perimeter test would not assist people who were smuggled through a designated port of arrival without encountering either police officers or immigration officers and would be unlikely to assist somebody who, unusually (I think) for illegal entrants to this country nowadays, had arrived by sea or by air at some place which was not a designated port of arrival and at which there would not usually be anyone to whom he could intimate a claim for asylum. My view was that there had been no legislative intention to cater for such people and that the flexibility to which Ministers referred was the flexibility which would allow the claimant to initiate an application for asylum at any point before he left a designated port of arrival. If anyone arriving at a place other than a designated port of arrival was lucky enough to find somebody there to whom he could make an asylum application he would be able to comply with regulation 70(3A)(a) but the draftsman did not have such a person in mind.
54. In R(IS) 14/99 the Commissioner was not prepared to accept that a claimant who had passed through Immigration Control at Heathrow and then claimed asylum at the Home Office at Croydon three days later had made a claim on arrival in the United Kingdom. It was argued for the Secretary of State in that case that the Commissioner should reject my port perimeter test and apply the Immigration Control test which he had applied in his earlier decision on file CIS/143/1997. For the claimant it was argued that neither test complied with the United Kingdom's Government's obligations under Article 31 of the Geneva Convention because it made no allowance for those cases where the claimant had been smuggled through a designated port of entry or had arrived in the country at a place at which there was no immediate opportunity to make a claim for asylum. The Commissioner declined to choose between my port perimeter test and the Immigration Control test which he had applied in CIS/143/1997 when he did not have the benefit of argument by Counsel. The view he took in R(IS) 14/99 was that it would be wrong to replace one rigid mechanical test with another when it was clear from the ministerial statements that flexibility was intended. His view was that the extent of that flexibility would need to be decided on a case by case basis.
55. I do not agree with R(IS) 14/99. My view is that the ministerial statements and the Social Security Advisory Committee papers referred to in that decision and in my earlier decisions indicate that the only flexibility intended in the use of the expression "on … arrival" in regulation 70(3A)(a) is the extension to the perimeter of a designated port of arrival of the point before which a claim for asylum must be initiated and that it is not possible to interpret the regulation in such a way as to cover claims for asylum which, although made on the same day as the claimant's arrival in the United Kingdom, are made an appreciable distance from the place of arrival, even if such a rigid interpretation means that the provision is not consistent with the United Kingdom's obligations under Article 31 of the Convention on the treatment of refugees. Although it has been established by the authorities which Mr Draycott has cited that legislation is to be interpreted with the Convention in mind where it is clear that the legislature did not have the Convention in mind it is the legislative intention which prevails. As a reported decision R(IS)14/99 has the approval of the majority of Commissioners. Therefore I would normally follow it despite my disagreement. However, it has, to my mind, been overtaken by events.
56. The Immigration and Asylum Act 1999 introduced a new system for the provision of financial assistance to asylum seekers. The power to provide such assistance is in section 95 of that Act. Section 55(1) of the Nationality, Immigration and Asylum Act 2002, clearly intended to deal with the same mischief as was regulation 70(3A)(a), provides:-

"The Secretary of State may not provide or arrange for the provision of support to a person under the provision mentioned in subsection (2) if –

(a) the person makes a claim for asylum which is recorded by the Secretary of State, and

(b) the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.".

Section 95 of the 1999 Act is one of the provisions mentioned in subsection (2) of section 55. It seems to me that the new test of "as soon as reasonably practicable" is one which could be met by asylum seekers irrespective of their method of entry to the United Kingdom, subject to their being able to persuade the immigration authorities of their promptness in applying for asylum. The claimants in the instant cases could argue that they had wasted no time between alighting from the vehicles in which they arrived and making a claim at Croydon. It seems to me also that the enactment, using words which could easily have been used in regulation 70(3A)(a), of a new test which has the flexibility attributed to the 70(3A)(a) test by R(IS)14/99, and now posited by Mr Draycott, is a clear indication that the regulation 70(3A)(a) test is as restrictive as I, in the light of the background material, considered it to be in my earlier decisions. That new indication of the nature of regulation 70(3A)(a) post dates both R(IS)14/99 and the authorities on which the Commissioner relied and on which Mr Draycott relied in his submissions to me. Therefore, irrespective of what is enjoined by the Geneva Convention the legislative intention behind and the effect of Reg.70(3A)(a) was that claims for asylum as a basis for entitlement to benefit had to be initiated in the port of arrival with no concession as to the circumstances in which the claimant arrived at a designated port of arrival or to those claimants who arrived at places in which a claim could not be initiated

57. If I am right in saying above that the clear legislative intention of regulation 70(3A)(a) transcends any consideration of the Geneva Convention obligations the questions of whether the regulation in effect imposes a penalty for illegal entry and discriminates contrary to Article 3 of the Geneva Convention are surplus but I deal with them because I do not think that the regulation does ignore the Convention's proscription of penalties or breaches Article 3.
58. The main thrust of Mr Draycott's argument on Article 31 was that the Vienna Convention requires that in the interpretation of treaties words be given their ordinary meaning. "Penalty" is not restricted to a penalty imposed as a punishment for crime but includes any disadvantage imposed on a person under the criminal law, the civil law or the terms of a contract. I accept it as indisputable that in the interpretation of almost any text, whether it be legislation, international treaties or written agreements between private individuals, words have to be given their ordinary meaning in the absence of any special definitions or particular technical background. But that meaning will always be, even in treaties governed by the interpretation rules of the Vienna Convention, the ordinary meaning of words in the context of the instrument which is being interpreted. Given that the overall purpose of the Convention on the Status of Refugees is to enable refugees to obtain humane treatment in a safe country I accept that it is at the very least arguable that the imposition of a serious restriction on the financial help which the host Government will give to an asylum seeker amounts to a penalty in the wide sense of that word.
59. However, I think that as well as looking at the overall purpose and the context of the Geneva Convention as a whole it is necessary to look at the purpose and context of Article 31 itself. That Article is clearly concerned with the refugee who is unlawfully in the host country and intended to ensure that host countries do not impose on refugees, which I accept for the purposes of this decision includes the asylum seekers who has not yet established his refugee status, the criminal penalties which most countries impose on those who breach border security by avoiding control points or deceiving officials. I am satisfied, therefore, that the penalty proscribed by Article 31 is a criminal penalty. Further, even if the penalty referred to in that Article is not restricted to a criminal penalty I think that, as Miss Anderson argued, any penalty which resulted from the application of regulation 70(3A)(a) interpreted as narrowly as I interpret it would not be a penalty in respect of the manner of the claimant's entry to the United Kingdom. The regulation is concerned only with the claimant's behaviour after he has entered the country. It reflects the Article 31 requirement that if the asylum seeker is to enjoy the exemption from penalty provided for by the Article he must make his presence known to the authorities without delay.
60. Regulation 70(3A)(a) is, as I have said in other decisions, a line drawing provision intended, as explained in the Ministerial statements and the Social Security Advisory Committee papers, to deal with the problem of asylum seekers who are not genuine and who, by not exposing themselves to the Immigration Control procedures to which they would be subject at a designated port of arrival, gain the advantage of being able to remain in this country with an entitlement to benefit while they are subject to the much longer procedure which has to be followed before an unsuccessful applicant for asylum can be ejected. In my earlier decisions I have cited dicta of the Court of Appeal, including Ex Parte B judgements which accept the United Kingdom governments right to decide how it will administer the matter of help for refugees. There is no doubt that regulation 70(3A)(a) bears harshly on genuine asylum seekers who do not arrive at a designated port of entry and who cannot find somebody in the place of arrival with whom they can initiate an application for asylum; but virtually all codes of civil law, Social Security, marriage and succession being examples, include rules which create difficulties for those who are of an honest and responsible disposition in order to control or to avoid conferring unmerited benefits on those who are not. Those rules are regarded not as imposing penalties but as stipulating preconditions for the entitlement to the rights or protections conferred by the codes.
61. As to discrimination, my view is that, contrary to Mr Draycott's argument, there is no discrimination involved in the operation of regulation 70(3A)(a). For there to be discrimination the person against whom the discrimination is allegedly being practiced must be the object of treatment which is, purely because he is who he is or because he is a member of a particular group of people, different from the treatment given to others. I do not see that there is any discrimination in the operation of the regulation against any one particular ethnic group. No evidence has been put to me which identifies any such group. In the nature of things at any particular time the preponderance of asylum seekers will come from certain countries and from time to time more of the people seeking asylum will come from one of those countries than come from the other such countries but there is nothing to indicate that regulation 70(3A)(a) discriminates against any particular ethnic group or people from any particular country.
62. Mr Draycott is, of course, correct to argue that Shah's case demonstrates that there can be discrimination against certain of the members of a group even although there is no discrimination against the group as such. He is also correct to argue that the O'Flynn case establishes that there is no need for a statistical analysis to identify a group subject to discrimination if the treatment complained about is obviously discriminatory. However, I do not think that either of those cases obliges me to regard regulation 70(3A)(a) as discriminatory against asylum seekers in general or any particular group of them. The common characteristics of the group affected by regulation 70(3A)(a) is that they are persons from abroad who assert the need for political asylum and who have claimed Income Support Urgent Cases Payments. Inasmuch as he can, if he satisfies regulation 70(3A)(a), be entitled to Income Support Urgent Cases Payments the asylum seeker is treated more generously in regard to Social Security benefits than other persons from abroad. The generality of persons from abroad are not entitled to any form of Income Support and, indeed, will probably not be allowed into the country unless they give a guarantee that they will not require to apply for Income Support or any other form of public funding. The entire Social Security benefit system is based on the premise that it is for the claimant for benefit to establish his entitlement to it and the regulatory code includes rules, for example as to the time at which and the manner in which claims should be made, which are intended to enable the officials concerned to cope with the administrative burden of processing claims, and to ensure that only those genuinely in need obtain benefit. The rule that asylum seekers who wish to be excepted from the regulation 21 and Schedule 7 exclusion from entitlement to social security benefits must make his application for asylum on arrival in the United Kingdom is a similar administrative measure, designed to ensure that the benefit system and the right to asylum are not abused by those who are not genuine asylum seekers. Such a measure is not per se discriminatory.
63. My conclusion is, therefore, that regulation 70(3A)(a) is not satisfied by any asylum seeker whose claim for asylum was not initiated before he left the place in which he arrived in this country. I conclude also that, interpreted in that way, the regulation does not discriminate against the generality of asylum seekers or any particular group of asylum seekers or any particular ethnic group and does not impose a penalty on asylum seekers in respect of illegal entry to the United Kingdom.
64. For the foregoing reasons the claimant's appeals fail and my decisions are in paragraph 1 above.

(Signed) R J C Angus

Commissioner

(Date) 15 July 2003