(back to preceding text)

    18. I cannot accept that a decision or determination must necessarily be regarded as provisional and lacking the quality of finality necessary for recognition as a decision or determination because it is open to the decision-maker to alter it. I take one example. Section 47(2) of the Supreme Court Act 1981 provides that:

"a sentence imposed, or other order made, by the Crown Court when dealing with an offender may be varied or rescinded by the Crown Court within the period of twenty-eight days beginning with the day on which the sentence or other order was imposed or made . . ."

The existence of that power could not, in my opinion, be said to render provisional any sentence passed or order made, or to deny recognition of such sentence or order as a decision or determination. In that context, of course, the sentence or order would ordinarily be communicated to the defendant, but it has already been shown that notification or communication of a decision in this context is not, in law, a necessary condition of its recognition as having been made.

    19. In my respectful opinion the legal principles stated by all three members of the court in Salem [1999] QB 805 were correct, and I would endorse them. Applied to this case, for the reasons I have given, they compel the conclusion that this appeal should be dismissed.

    20. I am naturally concerned that my noble and learned friends have formed a different opinion. I would not for my part question the principle of legality, let alone the importance of maintaining the rule of law. It is however a cardinal principle of the rule of law, not inconsistent with the principle of legality, that subject to exceptions not material in this case effect should be given to a clear and unambiguous legislative provision. There is nothing in any way unclear or ambiguous about the words "recorded by the Secretary of State as having been determined ….., on the date on which it is so recorded". They define the moment when a person ceases to be an asylum seeker and so disentitled to income support. The words do not say and cannot be fairly understood to mean "recorded by the Secretary of State as having been determined …. on the date on which it is so recorded and notice given to the applicant". To contrast this provision with other provisions in which express reference is made to notification is not to rely on niceties of statutory language but to undertake a conventional exercise of construction, seeking to give effect to the meaning of the Regulations. If, as I think, the meaning of regulation 70(3A)(b)(i) is plain, it cannot be overridden by the terms of HC 395, which do not have legislative force and which in any event provide that refusal of asylum by the Home Secretary will be followed by the immigration officer's decision on leave to enter, at which stage (not before) notice of the refusal of asylum and the reasons for it will be given. It is only then that the applicant's right of appeal for the first time arises. While I share the distaste of my noble and learned friends for the procedure followed in this case, that distaste should not lead the House to give regulation 70(3A)(b)(i) anything other than its clear and obvious meaning.

LORD STEYN

My Lords,

    21. The question is how regulation 70(3A)(b)(i) of the Income Support (General) Regulations 1987 should be interpreted. The question is whether Parliament intended to authorise the withdrawing of income support by an internal note on a departmental file with legal effect from a date before notification of the decision. At first glance it may appear to be a rather technical issue. But the decision by the House may have a more general bearing on the development of our public law.

    22. The background is as follows. On 31 August 1998 the appellant applied for asylum. On 4 September 1998 she claimed income support benefits, which were paid with effect from that date. Regulation 70(3A) of the Income Support (General) Regulations 1987 provides for the payment of income support at the rate applicable for urgent cases (90% of the normal rate) to persons who are asylum seekers within the meaning of the same regulation. Regulation 70(3A)(b)(i) provides that a person ceases to be an asylum seeker (and thus loses the right to income support):

". . . in the case of a claim for asylum which, on or after 5th February 1996, is recorded by the Secretary of State as having been determined (other than on appeal) or abandoned, on the date on which it is so recorded…"

On 20 November 1999 a Mr Stuart Beaton signed an internal file note. It read:

"This woman has cited numerous mishaps throughout the 1990s and puts her woes down to an encounter her father had with a drunken solicitor in 1991. There is no credibility in any of this and no Convention reason anyway.

For the reasons given in the letter aside, this application has failed to establish a well founded fear of persecution. Refusal is appropriate. Case hereby recorded as determined."

On 30 November 1999 the content of this file note was communicated to the Benefits Agency. It was not communicated to the appellant and the "letter aside" of 20 November 1999 containing the Home Secretary's reasons for refusal of asylum was not sent to the appellant.

    23. By letter of 28 November 1999 the appellant was asked to attend an interview on 11 January 2000. On 9 December and 15 December 1999 the Benefits Agency asked for the return of the appellant's income support book. The appellant's income support was stopped without explanation with effect from 9 December 1999. On 17 December 1999 the solicitors now acting for the appellant asked the Home Office for a postponement of the interview fixed for 11 January 2000. On 23 December 1999 the Benefits Agency advised the appellant's solicitors that it had been informed by the Home Office that the appellant's claim for asylum had been refused on 20 November 1999. For this reason the Benefits Agency had stopped the income support payments with effect from 9 December 1999. On 24 December 1999 the appellant's solicitors lodged an appeal with the Benefits Agency against the withdrawal of the appellant's income support. A further interview was arranged by the Home Office for 7 March 2000, which was subsequently refixed for 17 April 2000. The appellant was unable to comply because she was unable to obtain funds for the train fare. Under cover of a letter dated 25 April 2000 the decision rejecting the appellant's application for asylum and refusing her leave to enter was sent to her. The notice of refusal of leave to the appellant to enter the United Kingdom was signed by an immigration officer on 18 April 2000 and sent to the appellant. The notice of 18 April 2000 was accompanied by the reasons for refusal letter dated 20 November 1999.

    24. The hearing at first instance before Sir Christopher Bellamy - to whose judgment I wish to pay tribute - took place under the shadow of the decision of the Court of Appeal in R v Secretary of the State for the Home Department, Ex p Salem [1999] QB 805. In Salem the Court of Appeal (Hobhouse, Brooke LJJ and Sir John Balcombe) held that for the purposes of regulation 70(3A)(b)(i) a person ceased to be entitled to income support from the date when his claim for asylum was recorded as determined on an internal file note in the Asylum Directorate in the Home Department, even though he had not yet been informed of the determination. The House granted leave to appeal the decision in Salem. In the event, the matter did not proceed as Mr Salem was granted refugee status: see [1999] 1 AC 450. Reluctantly, Sir Christopher felt compelled to dismiss the appellant's application for judicial review. The Court of Appeal also regarded itself as bound by Salem. Having so decided the Court of Appeal had to dismiss the appeal of the present appellant. But the Court of Appeal voiced its concerns about the policy of the Secretary of State and the decision in Salem in clear terms. Schiemann LJ (with the agreement of Hale and Sedley LLJ) trenchantly observed about the factual matrix ([2002] EWCA Civ 399, para 29):

"We have also been told by leading counsel for the Home Secretary, Mr John Howell QC, that the delay of over four months between the preparation and the dispatch of the letter explaining why asylum has been refused was not accidental: it was a consistent practice. But for it, the present issue of law would have no significance.

Mr Howell was wholly unable to explain it, let alone justify it. He was able to do no more than read us part of an affidavit which had been sworn in Salem which asserted that the implications of cost and effort if interim notifications were sent out were too great. When one bears in mind first that the asylum-seeker's ability to contest the refusal of asylum is entirely dependent on receipt of the Home Secretary's reasons for refusal, and secondly that the letter containing full reasons is already on file and that sooner or later the Home Office will have to put it in an envelope and post it, even the flimsy explanation we were given falls away. Since Mr Howell was able to tell us that the practice is now to send out a prompt notification (though he could not tell us whether it included reasons, and Mr Gill's instructions suggested that it did not), one is left wondering what the real reason was. Ms Anufrijeva's inability, her benefit having been stopped, to find £17 to travel to Gatwick for her 'reasons for refusal' interview gives little to be proud of."

In oral argument before the House counsel stated that the Secretary of State did not condone delay in notification of a decision on asylum. These were weasel words. There was no unintended lapse. The practice of not notifying asylum seekers of the fact of withdrawal of income support was consistently and deliberately adopted. There simply is no rational explanation for such a policy. Having abandoned this practice the Secretary of State still seeks to justify it as lawful. It provides a peep into contemporary standards of public administration. Transparency is not its hallmark. It is not an encouraging picture.

    25. The Court of Appeal observed about the interpretation of the regulation (para 30):

". . . once an asylum seeker knows that her application has been refused, and that she is not to be given leave to enter the country on any other basis, and has the reasons for those decisions, she can reasonably be expected to make a choice: either to accept the decision and leave or to stay and fight but without recourse to state benefits. But she cannot reasonably be expected to make that choice before she knows of the decisions and the reasons for them. There is nothing in the material before us to suggest that it is consistent with the declared purpose of the regulation to expect her to do so."

I would respectfully endorse this observation.

    26. The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey [1983] 1 AC 1, 10G per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech, [1994] QB 198, 209D; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115.

    27. What then is the relevance of this dimension for the present case? The answer is provided by Lord Hoffmann's elegant explanation of the principle of legality in the Simms case. He said, at p 131 E-G:

"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document".

This principle may find its primary application in respect of cases under the European Convention on Human Rights. But the Convention is not an exhaustive statement of fundamental rights under our system of law. Lord Hoffmann's dictum applies to fundamental rights beyond the four corners of the Convention. It is engaged in the present case.

    28. This view is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are overridden by hole in the corner decisions or knocks on doors in the early hours. That is not our system. I accept, of course, that there must be exceptions to this approach, notably in the criminal field, e.g. arrests and search warrants, where notification is not possible. But it is difficult to visualise a rational argument which could even arguably justify putting the present case in the exceptional category. If this analysis is right, it also engages the principle of construction explained by Lord Hoffmann in Simms.

    29. In European law the approach is possibly a little more formalistic but the thrust is the same. It has been held to be a "fundamental principle in the Community legal order … that a measure adopted by the public authorities shall not be applicable to those concerned before they have the opportunity to make themselves acquainted with it": Racke v Hauptzollamt Mainz (Case 98/78) [1979] ECR 69, 84, para 15; Opel Austria GmbH v Council of European Union (Case T-115/94) [1997] ECR II 39, 82, para 124; Schwarze, European Administrative Law, 1992, pp 1416-1420; Council of Europe Publishing, The Administration and You, A Handbook, 1996, chapter 3, para 49.

    30. Until the decision in Salem it had never been suggested that an uncommunicated administrative decision can bind an individual. It is an astonishingly unjust proposition. In our system of law surprise is regarded as the enemy of justice. Fairness is the guiding principle of our public law. In R v Commission for Racial Equality, Ex p Hillingdon London Borough Council [1982] AC 779, 787, Lord Diplock explained the position:

"Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decision."

Where decisions are published or notified to those concerned accountability of public authorities is achieved. Elementary fairness therefore supports a principle that a decision takes effect only upon communication.

    31. If this analysis is correct, it is plain that Parliament has not expressly or by necessary implication legislated to the contrary effect. The decision in question involves a fundamental right. It is in effect one involving a binding determination as to status. It is of importance to the individual to be informed of it so that he or she can decide what to do. Moreover, neither cost nor administrative convenience can in such a case conceivably justify a different approach. This is underlined by the fact that the bizarre earlier practice has now been abandoned. Given this context Parliament has not in specific and unmistakeable terms legislated to displace the applicable constitutional principles.

    32. The contrary arguments can be dealt with quite briefly. Counsel for the Home Secretary submits that before a "determination" can be "notified" there must be a determination. This is legalism and conceptualism run riot. One can readily accept that in this case there must have been a decision as reflected in the file note. That does not mean that the statutory requirement of a "determination" has been fulfilled. On the contrary, the decision is provisional until notified.

    33. Counsel for the Home Secretary relied strongly on some niceties of statutory language. He pointed out that regulation 21ZA of the Regulations, as well as in section 6 of the Asylum and Immigration Appeals Act 1993, the draftsmen provided expressly for notification. In contrast regulation 70(3A)(b)(i) makes no reference to notification. The fact, however, that other provisions made the requirement of notification explicit does not rule out the possibility that notification was all along implicit in the concept of "the determination". For my part a stronger indication of Parliamentary intent is provided by the Statement of Changes in Immigration Rules (HC 395), which were laid before Parliament on 23 May 1994 under section 3(2) of the Immigration Act 1971. The concept of a "refusal" of asylum to be found in rules 331, 333 and 348 plainly contemplates notification of an adverse decision. These rules are part of the contextual scene of regulation 70(3A)(b)(i). They support the argument that notification of a decision is necessary for it to become a determination. But the major point is that the semantic arguments of counsel for the Home Secretary cannot displace the constitutional principles outlined above.

    34. For all these reasons I would reject the submissions of counsel for the Home Secretary and hold that Salem was wrongly decided. It follows that in my view the present appeal should be allowed.

    35. My noble and learned friend Lord Bingham of Cornhill has observed that the Home Secretary was under a public law duty to give notice within a reasonable time but that breach of this duty cannot nullify or invalidate his decision. I would question this conclusion. It is important to bear in mind that the breach involved a deliberate policy decision by the Home Office not to comply with the public law duty. This amounts to an abuse of power and ought to preclude the Home Secretary from relying on his unlawful conduct until notification has taken place. While generally an estoppel cannot operate against the Crown, it can be estopped when it is abusing its powers: HTV Ltd v Price Commission [1976] ICR 170, 185G-H, per Lord Denning MR; R v Inland Revenue Commissioners, Ex p Preston [1985] AC 835, 865D, per Lord Templeman; Laker Airways Ltd v Department of Trade [1977] QB 643, 707D-F, per Lord Denning MR and 709A-E per Roskill LJ. For this further reason I would reject the submissions made on behalf of the Home Secretary.

    36. I recognise, of course, that in some ways the appellant's case does not merit great sympathy. But even in unprepossessing cases fundamental principles must be upheld. The rule of law requires it. In my view the appellant is entitled to recover income support until proper notification of the determination on 25 April 2000. I would therefore allow the appeal.

My Lords,

    37. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. For the reasons he has given, I too would allow this appeal.

LORD MILLETT

My Lords,

    38. I have had the advantage of reading in draft the powerful speech of my noble and learned friend, Lord Steyn. Until then I was of the opinion that the appeal should be dismissed; but I have been persuaded to change my mind.

    39. I agree that a determination must actually be made before it can properly be recorded; and that it is not necessarily merely provisional until it is notified to the person or persons adversely affected by it. But it does not follow that it has legal effect before it has been notified; and it is fallacious to suppose that an uncommunicated decision must be effective for all purposes or for none.

    40. I am satisfied that the appellant's asylum application was determined on 20 November 1999, that the determination was final and not provisional, and that it had immediate legal effect for some purposes. Thus it returned the responsibility for deciding the appellant's immigrant status to the immigration officer, so that he could consider whether she should be granted exceptional leave to remain. But she could not be removed from or required to leave the United Kingdom until she had been given notice of the decision on her claim: section 6 of the 1993 Act expressly so provided. The question is whether the refusal of her application had immediate effect for the purpose of ending her entitlement to income support or took effect for this purpose only when she was notified of it.

    41. I was initially influenced by two considerations. One was the evidence that it was Parliament's intention to deprive asylum seekers of social security benefits even while the decision to refuse asylum is under challenge. On further reflection I do not think that this can be determinative of the present question: it does not follow that Parliament intended to deprive an asylum seeker of benefit before he or she is even told of the decision.

    42. The second consideration was textual. Benefit ends when the claimant "ceases to be an asylum seeker"; and this depends on the date on which the claim to asylum "is recorded by the Secretary of State as having been determined". There is a conspicuous absence of any reference to the need to notify the claimant of the decision. The claimant ceases to be an asylum seeker, neither on the date when the decision is made nor on the date when it is notified to the claimant, but on the date on which it is recorded. This initially persuaded me that even the deliberate failure to inform the appellant at the same time as the benefit office of the outcome of her application for asylum was merely an act of maladministration which did not invalidate the decision or delay the time at which her entitlement to benefit should cease.

    43. But I am persuaded that the omission was of more fundamental effect. The presumption that notice of a decision must be given to the person adversely affected by it before it can have legal effect is a strong one. It cannot be lightly overturned. I do not subscribe to the view that the failure to notify the appellant of the decision invalidated it, but I have come to the conclusion that it could not properly be recorded so as to deprive her of her right to income support until it was communicated to her; or at least until reasonable steps were taken to do so. This does not require any violation to be done to paragraph (3A) of regulation 70 of the Regulations. It means only that the word "determined" in that paragraph should be read as meaning not merely "actually determined" but as meaning "determined in such manner as to affect the claimant's legal rights". The presumption against legal effect being given to uncommunicated decisions does the rest. The determination must have been made and appropriate steps must have been taken to communicate it to the claimant before it can lawfully be recorded so as to have the effect contended for.

    44. I would allow the appeal.

LORD SCOTT OF FOSCOTE

My Lords,

    45. The appellant, Nadezda Anufrijeva, arrived in this country from Lithuania on 31 August 1998 and made an application for asylum as a Geneva Convention refugee. On 4 September 1998 she made a claim for income support. Entitlement to income support is governed by Part VII of the Social Security Contributions and Benefits Act 1992 and the Regulations made thereunder (or under one of the Act's legislative predecessors). The Regulations applicable to the appellant's claim were the Income Support (General) Regulations 1987 (SI 1987/1967).

    46. A "person from abroad" (see regulation 21(3) of the 1987 Regulations) is not entitled to income support unless he or she qualifies for such support as an urgent case. Persons from abroad falling within an urgent case category are entitled to 90% of the normal amount of income support. Asylum seekers, who often, if not usually, arrive in this country with no means of support, are recognised as falling within an urgent case category. The appellant accordingly qualified for income support as an asylum seeker and as from 4 September 1998 received income support at 90% of the normal rate.

    47. The appellant continued to receive income support until 9 December 1999 when it ceased. It ceased because the Benefits Agency had been informed by the Home Office that she had ceased to be an asylum seeker. The Home Office was purporting to apply paragraph (3A)(b)(i) of regulation 70 of the 1987 Regulations. Paragraph (3A)(b)(i) says that

"… a person

(b) ceases to be an asylum seeker ?

(i) in the case of a claim for asylum which, on or after 5 February 1996, is recorded by the Secretary of State as having been determined (other than on appeal) or abandoned, on the date on which it is so recorded";

    48. The file entry which led the Home Office to inform the Benefits Agency that the appellant had ceased to be an asylum seeker was contained in a Home Office file note dated 20 November 1999 which said, inter alia, that

"for the reasons given in the letter aside, this applicant has failed to establish a well founded fear of persecution. Refusal is appropriate. Case hereby recorded as determined. Certified under 5(4)(a)".

So 20 November 1999 is the date on which, the Home Office contend, it was recorded that the appellant's asylum claim had been determined.

    49. The "letter aside" referred to in the note was a letter, also dated 20 November 1999, which set out the reasons for the refusal of the appellant's asylum claim. The letter was addressed to the appellant but it was not sent to her until much later, nor was any other notification of the refusal of her asylum claim sent to her. This was not an oversight on the part of the Home Office; it appears to have been departmental policy not to communicate to an asylum seeker that his or her claim for asylum had been refused until an immigration officer had had the opportunity to consider whether the asylum seeker's request for leave to enter the country should be granted on some other ground than that of refugee status. Once the immigration officer had reached a decision on the request for leave to enter, the asylum seeker would then be informed of it and at the same time would be sent the letter stating that his or her claim to refugee status had been refused and the reasons for the refusal.