Decision to abolish backdating of income support for refugees to be appealed

Monday 7 July 2014

The Court of Appeal is to consider whether abolishing the backdating of income support for refugees is in breach of international law.

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The UK Government abolished the backdating of income support for refugees by virtue of section 12 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 with effect from 14 June 2007. The appellant was granted refugee status and granted limited leave to remain (asylum) in the UK in July 2009, and so her claim to backdate income support was refused.  The appellant appealed arguing that:

(i) not only did article 23 of the Refugee Convention (on Public Relief), taken together with article 28 of Directive 2004/83/EC (the Refugee Qualification Directive) (social assistance), oblige the UK to make income support payments on an equal basis as UK nationals once the appellant was lawfully present in the UK as a refugee

ii) but the UK was also obliged to make back-payments of income support in respect of the period that the appellant fulfilled the requirements of being a refugee (but had yet to be recognised as such) in order to comply with the same treatment provisions within article 23 Convention and article 28 of the Directive. It was argued that this obligation was justiciable as article 28 of Directive 2004/83/EC was capable of direct effect.

A panel of three Upper Tribunal judges in BH v SSWP rejected this argument, holding that the obligation on the UK under article 23 of the Refugee Convention and article 28 of the Directive are only forward-looking.  Permission was granted at a renewal hearing held on 2 July 2013. Lord Justice Underhill accepted the appellant’s argument that article 23 of the Refugee Convention and article 28 of the Directive were capable of being read in such a way that the provision had to apply retrospectively once recognition of refugee status had taken place and a grant of asylum had been made and that, given the importance of the issue, there was a compelling reason to hear the appeal.

The appellant was represented by Adrian Berry and Desmond Rutledge who were instructed by Nathaniel Mathews of Hackney Law Centre.

The judgment is available online.

Adrian Berry is part of Garden Court Chambers Immigration - Asylum and Human Rights Team and the Welfare Benefits Team.

Desmond Rutledge is part of Garden Court Chambers Welfare Benefits Team.

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