Regina v Secretary of State for the Home Department and another (Respondents) ex parte Anufrijeva (FC) (Appellant)
50. In the present case the appellant was not sent the letter refusing her claim for asylum and telling her the reasons for the refusal until 25 April 2000 notwithstanding that the letter had been written as long before as 20 November 1999 and in the intervening period had simply been retained in the Home Office file.
51. The appellant must, of course, have come to understand in a roundabout way that her asylum claim had been refused but she did not know the reasons for the refusal until she received on 25 April 2000 the "letter aside" dated 20 November 1999. The relevant sequence of events between those two dates is set out in paragraphs 22 and 23 of the opinion of my noble and learned friend Lord Steyn and I need not repeat them.
52. The departmental policy that led to the long delay in notifying the appellant that her asylum claim had been refused, and why, has been the subject of adverse comments by the Court of Appeal, cited by Lord Steyn in his opinion, and by Lord Steyn on his own account (see paragraph 24 of his opinion). I would wish to associate myself fully with Lord Steyn's comments. There seem to have been no practical reasons why the refusal of an asylum claim and the reasons for it could not have been promptly notified to the asylum seeker. It is true that the asylum seeker's request for leave to enter the country had to be dealt with by an immigration officer and that the immigration officer's role in dealing with the request for leave to enter was a role separate from although complementary to the Secretary of State's role in deciding whether to allow or refuse the asylum claim. But the immigration officer's role would not be in the least prejudiced or undermined by a prompt notification to the asylum seeker of the fate of the asylum claim. The connection, if there is one, between the immigration officer's role and the institutional delay by the Home Office in notifying asylum seekers of the fate of their asylum claims does not constitute a practical reason justifying the delay. That it was no such thing seems to me to be shown by the fact that the practice has apparently now been abandoned.
53. Be that as it may, the issue for your Lordships on this appeal is whether the un-notified decision of the Secretary of State to refuse the appellant's asylum claim, "recorded as determined" according to the 20 November 1999 note, effectively deprived her as from that date of her status as an asylum seeker for income support purposes, or whether she retained that status until she was notified on 25 April 2000, by her eventual receipt of the letter of 20 November 1999, of the refusal of her asylum claim.
54. The issue is one of construction of regulation 70(3A)(b)(i) of the 1987 Regulations. Paragraph (3A) was added to regulation 70 by an amendment made in 1996. Like any other provision of primary or secondary legislation, paragraph (3A)(b)(i) must be construed in the context of the statutory scheme of which it forms part. The statutory scheme includes section 11(1) of the Asylum and Immigration Act 1996, cited in paragraph 13 of the opinion of my noble and learned friend Lord Bingham of Cornhill, which makes explicit Parliament's intention to give power to the Secretary of State to make regulations excluding asylum seekers from entitlement to income support. And there is no doubt that paragraph (3A)(b)(i) was intended to exclude asylum seekers from income support once a particular stage in the progress of their asylum claims had been reached. But what was that stage? At what point are asylum claims to be regarded as "having been determined"?
55. The contextual background against which paragraph (3A)(b)(i) must be construed consists also of the Immigration Rules. The Rules current in 1996, when paragraph (3A)(b)(i) was added to regulation 70, included rule 333, cited in paragraph 8 of Lord Bingham's opinion. Rule 333 makes clear that the refusal of an asylum claim is to be notified to the asylum seeker by a "notice of refusal" which will inform him or her of the reasons for the refusal. Rules 331 and 348 underline the point. It is, indeed, inherent in the concept of a "refusal" that it should be communicated to the person to whom it is directed. The communication of a refusal may be either by words or by conduct from which the requisite inference can be drawn, but without communication there will be no more than a non-acceptance, a quite different concept from that of a refusal. The Immigration Rules require a refusal and that the refusal is to be communicated by a "notice of refusal".
56. It has been rightly accepted before your Lordships that, for the purposes of regulation 70(3A)(b)(i), an asylum claim cannot be "recorded as determined" until it has actually been "determined". The submissions of counsel for the Secretary of State draw a distinction between the refusal of the asylum claim for the purposes of the Immigration Rules, which requires a notice of the refusal to be sent to the asylum seeker, and the determination of the claim for the purposes of regulation 70(3A)(b)(i), which does not. So the claim can be "determined" before it has been "refused". This is an elegant linguistic conceptual distinction but it makes, to my mind, little practical sense and is redolent with unfairness to the asylum seeker.
57. My noble and learned friend Lord Steyn has cogently explained why an uncommunicated decision terminating an asylum seeker's right to income support offends against well-established principles of legality and access to justice. I cannot improve on his exposition and agree with it. Parliament can, of course, override these principles. But in section 11(1) of the 1996 Act Parliament has not done so expressly. There is nothing in the empowering provision to suggest a Parliamentary intention that an asylum seeker's status as an asylum seeker entitled to income support can be terminated not only without the asylum seeker being told the reasons for the termination of the status but without the asylum seeker even being notified of the termination.
58. There are, therefore, two reasons why, in my opinion, this appeal must succeed and the Salem case be overruled. First, I would construe the reference in regulation 70(3A)(b)(i) to an asylum claim being "determined" in a manner consistent with the Immigration Rules and hold that it cannot be "determined" until it has been refused and that that requires notification. Second, and alternatively, I consider that section 11(1) of the 1996 Act did not empower the Secretary of State to make regulations which have the effect that an asylum seeker can be deprived of that status for income support purposes without notification.
59. For these reasons, supplemental to those of my noble and learned friend Lord Steyn with which I am in complete agreement, I would allow this appeal.
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