Court of Appeal rules on whether UK is required to make backdated income support payments to refugees

Thursday 26 February 2015

The Court of Appeal considered whether article 23 of the Geneva Convention requires the UK government to make a retrospective payment of ‘public relief’ to successful asylum seekers representing the difference between previous asylum support and mainstream benefits. Adrian Berry and Desmond Rutledge acted for the appellant.

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In Blakesley v Secretary of State for Work and Pensions [2015] EWCA Civ 141, handed down this morning, the Court of Appeal held that the former statutory regime which provided backdated payments of income support to persons who were found to be refugees went further than article 23 of the Geneva Convention required. While successful asylum seekers are paid the same welfare benefits as UK citizens from the date their refugee status is established, article 23 did not have any retrospective effect.

The Court referred to Lord Hope’s judgment in R (ST) v SSHD [2012] UKSC12 on the Geneva Convention and the distinction he drew between asylum seekers who are lawfully present in the UK, and those determined to be refugees whose presence is lawful under domestic law. The Court concluded that 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” (para 40). Thus, while the current regime (of basic asylum plus the availability of integration loans) was less generous to refugees than the pre-June 2007 regime, it was still compliant with international law.

Given the Court’s conclusions on the Geneva Convention it went on to reject the appellant’s contention that article 28 of the Qualification Directive (2004/83/EC) provided for retrospective payments of social assistance or that it had direct effect. An alternative argument based on discrimination under article 14 of the ECHR was also considered but was rejected by the Court.

More information can be found in the judgment: Blakesley v Secretary of State for Work and Pensions [2015] EWCA Civ 141

Adrian and Desmond acted for the appellant. They were instructed by Nathaniel Mathews of Hackney Community Law Centre.

Adrian Berry and Desmond Rutledge are members of the Garden Court Chambers Welfare Benefits Team.

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