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Neutral Citation Number:
Reported Number:	R(IS)1/08
File Number:	CIS 2463 2000
Appellant:	(Kola and another v Secretary of State for Work and Pensions [2007]UKHL 54
Respondent:
Judge/Commissioner:	Mr R.J.C. Angus
Date Of Decision:	15/07/2003
Date Added:	30/11/2007
Main Category:	Residence and presence conditions
Main Subcategory:	persons from abroad
Secondary Category:
Secondary Subcategory:
Notes:	Residence and presence conditions – asylum seeker – meaning of “on arrival” The claimants entered the country in November 1998 and March 1999. Both had passed through the port of entry hidden by agents and had claimed asylum on the day they arrived, one at the Home Office Immigration Department and the other at a police station. They subsequently made income support claims, which were both refused under regulation 70(3A) of the Income Support (General) Regulations 1987 (as inserted by regulation 8 of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996) because they had not claimed asylum “on [their] arrival” in the UK. Successive appeals were rejected by an appeal tribunal, by a Commissioner and by the Court of Appeal. On the claimants’ further appeal, the Secretary of State, having regard to the provisions of section 11(1) of the Immigration Act 1971, contended that the phrase “on his arrival” implicitly required that the asylum claim be made to an immigration officer at the port of entry. The claimants submitted that the phrase was imprecise and admitted of some flexibility and that they had claimed asylum at the earliest opportunity. Held, allowing the appeal, that: 1. regulation 70(3A) does not, despite the recommendation of the Social Security Advisory Committee, provide a comprehensive definition of the meaning of “on his arrival”. Section 11 of the Immigration Act 1971 does not resolve the ambiguity, as it is concerned with “entry”, not “arrival” (paragraphs 34 to 37); 2. the claimants could not reasonably have been expected to claim asylum any earlier than they did, having regard both to their practical opportunity for doing so and their state of mind, including any effect of what the agents who arranged their entry may have said (R(Q) v Secretary of State for the Home Department [2003] EWCA Civ 364 preferred to Shire v Secretary of State for Work and Pensions [2003] EWCA Civ 1465). Regulation 70(3A) was therefore satisfied (paragraphs 38 to 40).
Decision(s) to Download:	R(IS) 1-08bv.doc