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[2008] UKUT 5 (AAC) (04 November 2008)

DECISION OF THE UPPER TRIBUNAL


CIS 2635 2008


Decision of the Upper Tribunal
(Administrative Appeals Chamber)

My decision is given under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007:

I SET ASIDE the decision of the Middlesbrough appeal tribunal, held on 2 May 2008 under reference 226/07/00413, because it involved the making of an error on a point of law and RE-MAKE the decision.

My DECISION is the claimant is not entitled to income support on her claim that was made on 7 February 2007, because she was a person subject to immigration control.

Reasons for Decision

1. This is an appeal by the Secretary of State brought against the decision of an appeal tribunal with the leave of a district chairman. It was made to a Social Security Commissioner and I have previously been dealt with it in that capacity. The social security jurisdiction of the Commissioners has now been transferred to the Upper Tribunal and, by the Transfer of Tribunal Functions Order 2008 (No 2833), these proceedings have continued under that new body.

A. What I have decided

2. The claimant's entitlement to income support depends on the answer to this immigration question: does a grant of indefinite leave to remain operates (i) retrospectively to the date when it was claimed or (ii) only prospectively from the date it is granted. I have decided that the correct answer is (ii)?

B. Background

3. The claimant was born in the Ukraine and is a national of the Russian Federation. Initially, her presence in the United Kingdom was subject to her not having recourse to public funds. In January 2006, she applied for indefinite leave to remain. This was finally granted in April 2008. The letter from the Home Office telling her of this decision was dated 4 April and the Residence Permit in her passport was issued on 9 April.

C. The claim for income support

4. The claimant claimed income support on 7 February 2007. The Secretary of State refused the claim on 12 July 2007. The grounds for the decision were that the claimant was a person subject to immigration control.
5. That decision was correct at the time it was made on the circumstances as they then were. Section 115 of the Immigration and Asylum Act 1999 provides:

'Exclusion from benefits

115.-(1) No person is entitled … to-

…

(e) income support;

…

under the Social Security Contributions and Benefits Act 1992 while he is a person to whom this section applies.

…

(3) This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed.

…

(9) "A person subject to immigration control" means a person who is not a national of an EEA State and who-

…

(b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds; …'

D. The appeal to the appeal tribunal

6. The claimant exercised her right of appeal with the assistance of Mr Garbutt of Miles, Hutchinson and Lithgow, solicitors.
7. The Tribunal allowed the appeal. The chairman's reasons are conveniently summarised in her decision notice:

'[The claimant] is entitled to Income Support from 24/01/06 on the basis that she has been granted indefinite leave to remain in this country. Her application was on the basis of domestic violence whereby there is a concession in the immigration rules. As her application for indefinite leave has been granted the tribunal must conclude that the necessary criteria have been met. She is therefore entitled to Income Support from the date she applied for indefinite leave which was 24/01/06.'

E. The appeal to the Commissioner

8. On appeal, the Secretary of State's representative made two arguments:

•    First, the Tribunal had no power to make an award before the date of claim.

•    Second, the Tribunal appeared to have applied regulation 21ZB of the Income Support (General) Regulations 1987, which is limited to asylum cases.

9. Both those arguments are clearly correct in law and Mr Garbutt, rightly and realistically, has not disputed them. I must set aside the Tribunal's decision.

F. Disposal

10. That leaves the issue of disposal. Should I remit the case to the new First-tier Tribunal or should I re-make the decision? As all the evidence is before me, remitting the case would merely cause unnecessary delay. I have, therefore, re-made the decision.
11. The claimant's entitlement to income support was certainly correctly decided by the Secretary of State on the circumstances obtaining at the time of the decision in July 2007. The issue is whether that decision is affected retrospectively by the grant of indefinite leave to remain, which carries no public funds condition.
12. One difficulty for the claimant is presented by section 12(8) of the Social Security Act 1998:

'(8) In deciding an appeal under this section, an appeal tribunal-

…

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.'

13. I accept for the sake of argument that a change of circumstances that takes effect retrospectively may nonetheless obtain at the time to which they relate. However, that leaves the question whether the grant of indefinite leave to remain operates from the date of claim or only from the date of the grant.
14. There is, so far as I have been able to discover, no provision that expressly deals with the effective date of a grant of leave, whether in legislation or in the Immigration Rules.
15. The result of the claimant's application to vary her leave was that it continued on its previous terms pending the decision on the application. That is the effect of section 3C of the Immigration Act 1971 as substituted by section 118 of the Nationality, Immigration and Asylum Act 2002. The result is that the public funds condition remained in force. However, the section makes no provision for the effective date of any variation of leave.
16. The Secretary of State's representative referred to the case of Secretary of State for the Home Department and The Queen on the application of Bakhtear Rashid [2005] EWCA Civ 744. There is a copy of the transcript is in the papers, starting at page 127. That was an asylum case. The authorities cited by the Court of Appeal show that an application for asylum is decided on the circumstances as they apply at the date of decision. This appeal, in contrast, is not an asylum case.
17. Pill LJ at paragraph 39 referred to a grant of indefinite leave as not conferring the benefit available to successful asylum seekers of having their entitlement to benefit retrospectively changed to take account of the grant. That is a reference to regulation 21ZB of the Income Support (General) Regulations 1987. That regulation is very much an exceptional provision that can allow an award to be backdated for many years. That regulation does not apply in the circumstances of this appeal. But that does not of itself show that the effective date of a grant of leave is the date of grant in immigration cases generally. I am sure that Pill LJ, who was merely reporting what counsel had said, did not have in mind the different circumstances of this appeal.
18. The natural assumption of a social security lawyer is that an award dates from the date of claim. However, that may not be the correct approach in an immigration context. The focus there is not on entitlement to financial support, but on the claimant's present and future status in this country. That difference of focus may suggest a different approach. I have to bear in mind that the immigration authorities are not concerned with historical status, although that can (as here) have an impact in other areas of law.
19. I also have to bear in mind that the effective date of a grant of leave will be relevant to different contexts and is, surely, the same in all those contexts. I must not be too influenced by the apparent merits of this particular case. For example: if the grant of leave is for a limited period, it is relevant to know when leave was granted in order to identify the end of the period. That was the issue for the Immigration Appeal Tribunal in Secretary of State for the Home Department v Sedghi Behrooz [1991] Immig AR 82. The Tribunal decided that:

•    There was a presumption that leave was granted on the date shown in the claimant's passport.

•    Where different dates were given, the uncertainty should be resolved in the claimant's favour.

•    As a grant of leave must be notified in writing, the leave should not be effective until the date of the notice.

The first and last of those propositions do not appear to me to be entirely consistent. However, that decision is clear authority that a grant of leave does not have retrospective effect. The decision is not binding on me, but it is persuasive and was made by a body expert in immigration law. I therefore follow that decision and apply the principle that it established or recognised.

20. For the purposes of this appeal the difference between the date of the Home Office letter and the date in the claimant's passport is immaterial. As both are later than the Secretary of State's refusal of the income support claim, the grant of leave did not take effect retrospectively to a time that the Tribunal could take into account. The Tribunal should have dismissed the appeal. The Secretary of State was correct to refuse the claim for income support on the ground that the claimant was a person subject to immigration control. I so decide.

Signed on original on 07 November 2008

Edward Jacobs Upper Tribunal Judge