Immigration law

By Jane Coker, Coker Vis Partnership, London

Asylum seekers' benefits

Murat Kaya v Haringey London Borough Council and Secretary of State for Social Security: C9600349: CAMr Kaya was a Turkish asylum seeker who had claimed asylum, as had his wife.

They were on temporary admission under schedule 2 of the Immigration Act 1971 pending a decision.They were evicted and were homeless.

They sought accommodation from the first respondent (LBH) under part 7 of the Housing Act 1996, asserting that (i) they were not intentionally homeless and (ii), because W was pregnant, in priority need.For K to assert priority need it was necessary to show that W was eligible for housing assistance.

Because W was an asylum seeker and subject to immigration control, she had to fulfil section 185(2) of the 1996 Act.In her claim for housing assistance, W maintained that she fell within class E as prescribed by regulations made under the 1996 Act, despite the fact that she was a person subject to immigration control as a national of Turkey, a state which had signed and ratified the European Convention on Social and Medical Assistance (ECSMA).Although it was common ground that she was such a national the LBH asserted that she was not within class E because she was not lawfully present.

The second respondent (DSS) raised a separate point on the issue of 'lawfully present'.

The issue of 'lawful presence' turned upon how the grant of temporary admission should be regarded and in particular upon the effect of section 11(1) of the 1971 Act.The Court of Appeal was of the view that the point was specifically referred to in R v SSHD ex parte Bugdaycay [1987] AC 514 where it was held that a 'person deemed by S11(1) not to have entered the UK was not 'lawfully within' the UK within the meaning of the Geneva Convention, Status of Refugees 1951'.The Court of Appeal held that 'the exact same logic had to be applied to the instant case as to the question of whether such a person was "lawfully present" in the UK within the meaning of the regulations made under the Immigration and Asylum Act 1999 and the 1996 Act'.The court also held that: 'the purpose of the 1999 Act was to ensure, for policy reasons, that asylum seekers were not to become entitled to the full privilege of welfare benefits unless and until their claims for asylum were approved'.

A full transcript of this case is not yet available.

However, it appears that it will have ramifications for many asylum seekers whose claims for asylum are wending their way through the asylum determination and appeal process.Many have outstanding appeals against the refusal of welfare benefits on the basis that they are lawfully resident and nationals of states which are signatories to ECSMA.

Where an asylum determination has been wrongly refused, for example for alleged non-compliance, and the decision is merely being reviewed rather than withdrawn, there may well be loss of welfare benefits.But it may be arguable that this definition of 'lawful residence' does not apply to those who were overstayers at the time of the application.

Asylum applicants subject to the Immigration (Variation of Leave) Order 1976 (now S3 of the 1999 Act) are certainly arguably lawfully present.It remains to be seen whether, following an adverse asylum decision, they remain lawfully present for the purposes of housing benefit/income support.Refusals of benefit should continue to be appealed unless and until the transcript of this judgment makes clear that such appeals are unarguable.Practitioners should be aware that one of the adverse consequences of this judgment could be an increase in dispersal.

Refugee appeals

Veysi Dag v Secretary of State for the Home Department (01/TH/0075) starred tribunal decision (transcript in Immigration Law Update fortnightly (published by IAS), Vol 4, No 7 15 April 2001)The central issue in this case was the status of the Turkish Republic of Northern Cyprus insofar as that status may affect the determination of refugee appeals.The tribunal heard argument on the history of the Republic of Cyprus, the terms of the treaty establishing Cyprus, principles of international law and English law relating to the recognition of a state and was referred to proceedings before the European Court of Human Rights.The conclusions drawn were:l Northern Cyprus is not capable of being the country of a person's nationality for the purposes of article 1A(2) of the convention;l for a person who has another nationality, a link with Northern Cyprus is irrelevant for the purpose of deciding whether he is a refugee;l Northern Cyprus is, it seems, not capable of being the country of former habitual residence of a person with no nationality.

Cyprus is capable of being a country of former habitual residence;l if a person establishes he is a refugee ...care must be taken to ensure that his return to Northern Cyprus will not breach article 33.