The applicant had claimed asylum on entry and was temporarily admitted. Though his claim for asylum was later refused, those admitted in this way were granted indefinite leave to remain. He had claimed and received benefits at first, but then these were refused under regulations made under the 1999 Act. The regulations had disentitled to benefit those who required leave to remain in the UK but did not have it. The claimant said that at the time he was here with an immigration officer’s written authority.
Held: The claimant’s appeal was allowed. Musisi’s case in Bugdaycay was the correct result, but the reason Musisi failed was because he was not a refugee within the Convention. It could not be argued that something more was required than the immigration officer’s written authority.
Lord Brown of Eaton-under-Heywood said: ‘The term ‘refugee’ in article 32(1) of the Refugee Convention can only mean someone already determined to have satisfied the article 1 definition of that term (as for example in article 23 although in contrast to its meaning in article 33). Were it otherwise there would be no question of removing asylum seekers to safe third countries and a number of international treaties, such as the two Dublin Conventions (for determining the EU state responsible for examining applications lodged in one member state) would be unworkable.’
Lord Bingham of Cornhill, Lord Hutton, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
[2005] UKHL 64, Times 01-Nov-2005, [2006] 1 AC 564, [2006] 1 All ER 1, [2006] INLR 88, [2005] 3 WLR 955, [2006] Imm AR 48
Bailii, House of Lords
Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, Immigration Act 1971, Immigration and Asylum Act 1999, Geneva Convention relating to the Status of Refugees (1951)
England and Wales
Citing:
Appeal from – Szoma v Secretary of State for Work and Pensions CA 30-Jul-2003
The applicant, a foreign national had been given temporary admission to the UK. He received income support. But this ceased after his asylum application was rejected, and he remained resident.
Held: The legislation now made specific reference . .
Cited – Murat Kaya v Haringey London Borough Council and Another CA 14-Jun-2001
The grant of temporary admission to the UK pending an decision on his asylum status, did not create a full ‘lawful presence’ in the UK. A person seeking to qualify for housing assistance had to be lawfully present within the UK, and temporary . .
Cited – Regina v Secretary of State for the Home Department ex parte Bugdaycay HL 19-Feb-1986
Three applicants had lied on entry to secure admission, stayed for a considerable time, and had been treated as illegal immigrants under section 33(1). The fourth’s claim that upon being returned he would been killed, had been rejected without . .
Cited – Regina v Secretary of State for the Home Department, Ex parte Singh QBD 8-Jun-1987
The Refugee Convention had ‘indirectly’ been incorporated under English law. The court considered whether a person allowed entry by an immigration officer was lawfully here irrespective of other considerations. As to the case of Musis in the . .
Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – Regina v Secretary of State for Home Department ex parte Kaya Admn 21-May-1998
. .
Cited – Taikato v Regina 16-Oct-1996
(High Court of Australia) The court was asked whether an individual carrying a formaldehyde spray possessed it ‘for a lawful purpose’.
Held: She did not do so even though it was a purpose not prohibited by law, namely self defence: ”Lawful . .
Cited by:
Cited – Kola and Another v Secretary of State for Work and Pensions HL 28-Nov-2007
The claimant said that the 1987 Regulations were invalid, in making invalid any claim for benefits by an asylum seeker who had not made his application exactly upon entry to the UK.
Held: The appeals were allowed. Section 11 of the 1971 Act is . .
Cited – YA, Regina (On the Application of) v Secretary Of State for Health CA 30-Mar-2009
The applicant was a failed asylum seeker who sought judicial review of a decision of an NHS Trust not to provide him with free care. The court was asked for guidance as to whether a health trust had a discretion to provide free health care to a . .
Applied – Tesfamichael v Secretary of State for the Home Department Admn 19-Dec-2008
The claimant sought judicial review of the decision to return her to Eritea despite a decision of the Asylum and Immigration Tribunal that she should be given leave to remain as a refugee.
Held: The application succeeded, and ordered the . .
Cited – ST Eritrea, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Mar-2012
The Tribunal had confirmed the appellant’s refugee status, but the respondent had ordered nevertheless that she be returned. The judge’s order setting aside that decision had been overturned in the Court of Appeal.
Held: The claimant’s appeal . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.231608
