Person ceasing to be asylum seeker for purposes of entitlement to income support when claim recorded by home secretary 'as having been determined' - record made but not communicated to claimant and benefit determined - determination not effective until notification to claimant

R (Anufrijeva) v Secretary of State for the Home Department and another: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Millett and Lord Scott of Foscote): 26 June 2003

On arrival in the UK, the claimant sought asylum and obtained income support.

On 20 November 1999, a Home Office official recorded on an internal file that for reasons in a draft letter 'refusal is appropriate.

Case determined'.

The Home Office did not notify her but, treating her as a person who had ceased to be entitled to benefit since her asylum claim was 'recorded as having been determined...

on the date on which it is so recorded' under regulation 70(3A)(b)(i) of the Income Support (General) Regulations 1987 (as inserted by Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996), informed the Benefits Agency, which terminated further payments.

On 25 April 2000, she was notified of the refusal of her outstanding application for leave to enter and was sent the written reasons for the refusal of her asylum claim.

In judicial review proceedings, she challenged the decisions to treat her claim as determined before she was notified of it and to withdraw benefit from 9 December 1999.

The judge and Court of Appeal concluded that they were bound by authority to dismiss her claim.

The claimant appealed.

Richard Drabble QC and Nicola Braganza (instructed by Ole Hansen & Partners) for the claimant; John Howell QC and Dinah Rose (instructed by the Treasury Solicitor) for the secretary of state.

Held, allowing the appeal (Lord Bingham of Cornhill dissenting), that fairness required an adverse administrative decision to be communicated to the individual concerned before it could take effect; that in the absence of express wording or implication to the contrary, general statutory words could not override, but were presumed to be subject to, fundamental rights; that here Parliament had not legislated to such contrary effect and, since immigration rules envisaged notification of an adverse asylum decision, regulation 70(3A)(b)(i) required the determination to be notified before it took effect; and that, accordingly, the claimant was entitled to recover benefit payments until the date of notification.

(WLR)