Decision Summary Information

Back to Results | Search Again | Most Recent Decisions

Neutral Citation Number:
Reported Number:	R(IS)2/06
File Number:	CIS 2091 2001
Appellant:	Szoma v Secretary of State for Work and Pensions [2005] UKHL 64
Respondent:
Judge/Commissioner:	Mr R.J.C. Angus
Date Of Decision:	10/10/2002
Date Added:	05/11/2002
Main Category:	Residence and presence conditions
Main Subcategory:	persons from abroad
Secondary Category:
Secondary Subcategory:
Notes:	Residence and presence conditions – persons subject to immigration control –exception for nationals of states which are signatories to certain treaties – meaning of “lawfully present in the United Kingdom” The claimant was a Polish national who came to the United Kingdom in 1998 and claimed asylum. He was granted temporary admission by the immigration authorities. He claimed income support and was awarded it under the rules in force at the time. In July 2000 his claim for income support was refused under the Immigration and Asylum Act 1999 (the 1999 Act) and Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (the 2000 Regulations), in force from April 2000. Those provisions excluded from entitlement to income support persons subject to immigration control, subject to certain exceptions. The claimant contended that he fell within the exception in paragraph 4 of the Schedule to the 2000 Regulations, namely that he was a national of a state that had ratified the European Convention on Social and Medical Assistance and was lawfully present in the United Kingdom. The issue at each stage of his appeal was the meaning of “lawfully present”. The appeal tribunal allowed his appeal, holding that he was lawfully present because he was present with the knowledge and permission of the immigration authorities. The Commissioner allowed the Secretary of State’s appeal, accepting that he was bound by Kaya v Haringey London Borough Council [2001] EWCA Civ 677, [2002] HLR 1 and agreeing with that judgment in holding that a grant of temporary admission did not confer “lawful presence” because (a) section 11(1) of the Immigration Act 1971 deems a person “who has not otherwise entered the United Kingdom … not to do so as long as he is … temporarily admitted” and (b) temporary admission was merely a mechanism to prevent illegality and “lawfully present” required more than simply the absence of illegality. The Court of Appeal upheld the Commissioner’s decision, regarding itself also as bound by Kaya, which a majority also held to be correct. Held, allowing the appeal, that: 1. whilst the decision in Kaya was correct, the reasoning was wrong: section 11’s purpose was not to safeguard the person admitted from prosecution for unlawful entry but rather to exclude him from the rights given to those granted leave to enter. Even assuming that section 11’s deemed non-entry would otherwise be capable of affecting the construction of the 1999 Act and the 2000 Regulations, it would be wrong to carry the fiction beyond its originally intended purpose so as to deem a person in fact lawfully here not to be here at all (paragraph 25); 2. there was no possible reason why paragraph 4 should be construed as requiring more by way of positive legal authorisation for someone’s presence in the United Kingdom than that they are at large here pursuant to the express written authority of an immigration officer provided for by statute (paragraph 28).
Decision(s) to Download:	R(IS) 2_06 bv.doc