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Neutral Citation Number:	2013 UKUT 433 AAC
Reported Number:
File Number:	CIS 3416 2011
Appellant:	Blakesley
Respondent:	Secretary of State for Work and Pensions (IS)
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	26/02/2015
Date Added:	09/10/2013
Main Category:	European Union law
Main Subcategory:	discrimination by nationality
Secondary Category:	Income support and state pension credit
Secondary Subcategory:	other: income support
Notes:	Court of Appeal decision reported as [2015] AACR 17. Income Support – refugees – regulation 21ZB – abolition of back-dating rule – whether contrary to Article 23 of Geneva Convention or Article 28 of Council Directive 2004/83/EC – whether appellant’s human rights breached The appellant, an Eritrean national, came to the UK in 1997. Her initial claim for asylum was unsuccessful. However, in 2005 she made a fresh claim, after joining the Pentecostal Church, and thereafter she also got married. The Asylum and Immigration Tribunal subsequently allowed her appeal, on the basis that if she returned to Eritrea she would face religious persecution and that her Article 8 rights under the European Convention on Human Rights (ECHR) would also be breached. In July 2008 the appellant was awarded income support (IS) but her application for backdating to when she first applied for asylum was refused. Her appeal against that decision was rejected by the First-tier Tribunal (F-tT) on the grounds that under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 retrospective payments of IS to refugees had been abolished. The appellant’s submission to the Upper Tribunal (UT) argued that the UK government was wrong to abolish regulation 21ZB as it gave effect to her rights under Article 28 of the Council Directive 2004/83/EC (the Qualification Directive) and was discriminatory. The UT rejected her appeal. The appellant appealed to the Court of Appeal basing her claim for arrears of IS under Article 23 of the Geneva Convention (the Convention), Article 28 of the Qualification Directive, and Article 14 of the ECHR. Held, dismissing the appeal, that: 1. if it had been intended that all welfare benefits should be backdated for genuine refugees, Article 23 of the Convention would have referred to “refugees”, not “refugees lawfully staying in their territory”. A refugee is only “lawfully staying in” the UK once it has been determined by the Secretary of State or on appeal that he/she is indeed a refugee and this was entirely consistent with the broad humanitarian aims of the Convention (paragraphs 41 to 42); 2. the phrase “beneficiaries of refugee … protection” in Article 28 of the Qualification Directive meant persons whose status as refugees has been established. The verb “receive” meant “receive from then onwards” and there was no express or implied obligation to make payments for the difference between the earlier asylum support payments or benefits in kind and mainstream benefits (paragraph 58); 3. the UK was entitled to establish a support scheme for asylum seekers which was less generous than mainstream benefits, provided that it complied with the requirements of Council Directive 2003/9/EC (the Reception Directive). Successful asylum seekers receive the same welfare benefits as UK citizens from the date when their refugee status has been established. The international instruments upon which the appellant relied did not require the UK Government to make lump sum payments representing the difference between previous asylum support and mainstream benefits to successful asylum seekers(paragraph 72); 4. the appellant’s failure on her first two grounds of appeal was fatal to her case under Article 14 of the ECHR (paragraph 67).
Decision(s) to Download:	CIS 3416 2011-00.doc [2015] AACR 17ws.rtf