In Blakesley v Secretary of State for Work and Pensions [2015] EWCA Civ 141 the Court of Appeal considered whether the UK Government is in breach of its international obligations towards refugees because of the lack of any provision to make back-payments of welfare benefits to those asylum seekers who, upon inquiry, are found to be refugees.

The factual background

The Appellant came from Eritrea to the UK in 1997. Her claim for asylum initially failed. Subsequently, however, her fresh claim, filed in August 2007, succeeded because she converted to Pentecostal Christianity; a form of religion which would have caused her to be persecuted in Eritrea. The Appellant’s status as a refugee was formally recognised by the Secretary of State in July 2008, and she was then awarded income support. However, an application for back-payments of income support as a person who has been recognised as having refugee status (under reg 21ZB of the Income Support (General) Regulations) was refused because the power to make those payments had been revoked by s12 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 when it came into force on 14 June 2007. The appellant’s appeal to both a First-tier Tribunal (SEC) and the Upper Tribunal (AAC) were refused.

The issue before the Court of Appeal was whether a refugee can recover back-payments of income support after she has been recognised as a refugee in respect of the earlier period on the basis of the Refugee Convention relating to the status of refugees (‘the Refugee Convention’) which at article 23 provides:

The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.

The Policy Background

On 15 June 2004, at the time the proposed amendment was before Parliament, the UNHCR produced the following document: Asylum and Immigration (Treatment of Claimants) Bill Briefing Note on Proposed Amendments 12 and 13 for the House of Lords at Committee. The relevant passage, which appears in the judgment, is reproduced below:

As stipulated in Para. 28 of the UNHCR Handbook, a person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee. From this it follows that a refugee with an outstanding asylum claim is still a refugee.

In this context, it is clear that all refugees fall within the provisions of Articles 23 and 24 of the 1951 Convention entitling them to be accorded the same treatment as nationals in regard to social security and public relief. In the United Kingdom, refugees whose asylum applications are yet to be decided, are currently denied 30% of a UK national’s benefit entitlement, but are reimbursed once their status has been established and asylum is granted. While UNHCR favours the granting of full benefit entitlement to all asylum seekers, it endorses as equitable the current arrangement, which sees an individual receiving retrospectively monies to which he was entitled as a refugee, but which he was denied during the time it took the UK government to recognise this. We are concerned that the proposed amendments would deny support to a particularly vulnerable group of people at a time when they require funds to establish new lives and, in many instances, to repay informal loans that were acquired whilst reliant on just 70% of income support and with no right to work.

Whilst UNHCR welcomes the idea of “integration loans” as an additional facility to aid the integration of refugees in the UK, such loans should not be a substitute for repayment of benefits that are temporarily withheld whilst refugee status is determined.

In other words the UNHCR regarded the provision in force at the time to award back-payments of income support once a person was recognised as a refugee as necessary to safeguard a refugee’s right to the “same treatment” under article 23 of the Refugee Convention.

During the debate on the proposal to abolish backdating, Lord Rooker (spokesperson for the Government) maintained that the new scheme was compliant with the UK’s obligations under the Refugee Convention, as the payments made under the NASS scheme were “broadly comparable” to those paid via income support:

The question of the UNHCR report was raised. The Government have not seen the report, but the answer that we will give regarding allegations that the back payments are necessary to comply with Articles 23 and 24 of the 1951 Refugee Convention is this: so far as is relevant, Article 23 requires refugees to be given the same treatment in relation to public relief and assistance as is accorded to UK nationals. Article 24 contains similar provisions in relation to wages and related social security benefits. I do not think that anyone looking at the figures of the NASS benefits in kind—the 100 per cent support to children and the 70 per cent cash support—could argue that they are not broadly comparable. We believe that the package of support for asylum seekers received from NASS—or local authorities under the interim provisions—meets the equal treatment requirement of the Refugee Convention. (Hansard, HL col 670, 15 June 2004).

The Legal Background

In Khaboka (Alimas) v SSHD [1993] Imm AR 484 it was accepted by the Court of Appeal that a refugee does not become a refugee because of recognition as such. S/he is recognised because s/he is a refugee.

In R(ST) v SSHD [2012] UKSC 12 the Supreme Court considered how the rights conferred upon refugees under the Refugee Convention was based on their degree of attachment to the contracting state in which asylum was sought, and decided ‘lawfully’ in a territory meant lawfully under domestic law. In the UK context, this meant with leave to enter or remain under s3 of the Immigration Act 1971. Consequently, whilst the appellant in ST was protected from being returned to her country of origin (‘refoulement’) as article 33 requires no more than physical presence, she was not protected from being expelled under article 32 as this provision requires ‘lawful presence’ and ST had not been granted leave to remain.

The Appellant’s Case

The Appellant’s case before the Court of Appeal was based on the following propositions:

• A person is a ‘refugee’ under article 1 of the Refugee Convention from the time at which the state of affairs constituting that refugee status arises.

• A person who is recognised as a refugee is not lawfully staying in the UK for the purposes of article 23 of the Refugee Convention until they have been granted leave to enter to remain under domestic law.

• From the point at which a person is granted refugee status and leave to enter or remain, he or she is lawfully staying in the UK and is entitled to equal treatment as regards public relief and assistance under article 23 on the same basis as UK nationals.

• This interpretation was consistent with the humanitarian aims of the Convention, as expressed in the preamble to the Convention and with the purposive approach to construction which article 31.1 of the Vienna Convention requires.

• The ratio in ST is not determinative of the issue as the question of backdating an entitlement to income support does not arise unless and until the person has been granted leave to remain and is therefore ‘lawfully staying in’ the UK. Only then does the question of backdating of entitlement to income support for a person who has the status of a refugee arise. Whereas in ST the appellant had temporary admission only which did not amount to being ‘lawfully in’ the UK; so the correct level of attachment to rely on Article 32 of the Refugee Convention was not present.

• Finally, the right under article 23 of the Convention was directly enforceable as a matter of EU law following the coming into force of the Refugee Qualification Directive (2003/9/EC) which includes the provision in article 28(1):

Member States shall ensure that beneficiaries of refugee or subsidiary protection status receive, in the Member State that has granted such statuses, the necessary social assistance, as provided to nationals of that Member State.

The Court’s Decision

Jackson LJ, giving the lead judgment, rejected the Appellant’s interpretation of Article 23. His Lordship observed that the Refugee Convention contains five articles dealing with welfare. Whilst Articles 20, 22, 24.2, 24.3 and 24.4 (which include education for the children of those seeking asylum) apply to “refugees”, articles 23 and 24.1 only apply to “refugees lawfully staying in their territory”. His Lordship said the difference in phraseology was significant given the ruling in ST:

If it was intended that all welfare benefits should be backdated for genuine refugees, article 23 would have referred to “refugees”, not “refugees lawfully staying in their territory”. A refugee is only “lawfully staying in” the UK once it is established that he/she is indeed a refugee. During the earlier period, although he/she is a refugee, no-one knows that this is the case. His/her presence is tolerated, because the UK cannot take the risk of expelling someone who may turn out to be a genuine refugee. His/her presence only becomes “lawful” under UK law when the proper authority (either the Secretary of State or on appeal a tribunal) has determined that the person is a refugee.

In my view this interpretation is entirely consistent with the broad humanitarian aims of the Convention. Both category 1 [successful] and category 2 [unsuccessful] asylum seekers receive accommodation and support at a basic level while their claims are being processed. As soon as that process is complete, the category 1 asylum seekers become established refugees and receive the full range of mainstream benefits. Taking the facts of the present case as an example, I do not see how it serves the broad humanitarian aims of the Geneva Convention to pay to the appellant a large lump sum representing historic accumulated income support. The appellant has received proper support, albeit under a different statutory regime, ever since she arrived in this country (at paras [41]-[42]).

The Court also rejected the Appellant’s case based on Article 28 of the Qualification Directive, saying that the text did not go beyond the requirements of the Refugee Convention.

Comment

It is important to remember that the issue in this appeal was not whether the UK is entitled to establish a support scheme for asylum seekers which is less generous than mainstream benefits, pending a determination of their status. Rather, whether on a proper reading of article 23 of the Refugee Convention the UK is obliged to make provision for the back-payments of benefits to successful applicants for asylum so they are reimbursed for the difference in treatment as asylum seekers once their status as refugees has been established – those payments representing the difference between the support they would have received while their application was being processed and the rate of benefit paid to UK nationals under the income support rules.

In the course of rejecting the Appellant’s case on the proper interpretation of article 23, the judgment refers to a number of factors including: (i) the approach taken by the Supreme Court to the different phraseology used in articles 32 and 33 of the Refugee Convention in ST; (ii) the absence of any express reference to backdating in the Refugee Convention; and (iii) the absence of any mechanism in the European Asylum System as a whole to reconcile the different rates of support provided to asylum seekers under the Reception Directive and the social assistance provided for successful asylum seekers under the Qualification Directive.

The judgment, however, sheds little light on the key issue – whether the right to equal treatment in article 23, which flows from the act of recognition of refugee status, should apply retrospectively (and not just prospectively). For once a person is lawfully staying in the UK on a grant of refugee status (leave to remain) his or her right to public assistance and relief (here income support) would appear to arise retrospectively for the whole of the period when s/he was a refugee in the UK. For not only are the words in article 23 capable of bearing this meaning, this interpretation reflects the views of the UNHCR and is consistent with the broad purpose of the Refugee Convention. The Appellant is currently seeking permission to appeal.