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Headnote |
Summary of decision:
A decision of the Criminal Injuries Compensation Appeals Panel to refuse compensation to an applicant who was unlawfully in the UK at the time that she was a victim of multiple rape, was fatally flawed in that the Panel did not consider the effect of her being subsequently granted asylum by Ireland.
Facts:
On 15 and 16 February 2002 the applicant, A, was the victim of a multiple rape by 6 men. 4 men were later convicted of rape and conspiracy to rape and received sentences of up to 9 years’ imprisonment. A was from the Ukraine. She had entered the United Kingdom lawfully on 6 May 2001, however between 11 December 2001 and 19 February 2002 (the date at which she claimed asylum) A was in the UK unlawfully and was committing a criminal offence, punishable by up to six months’ imprisonment. She had not been prosecuted for any such offence. A applied for compensation under the Criminal Injuries Compensation Scheme 1996 (‘the 1996 Scheme’) on 3 November 2002. Her application was refused by the Criminal Injuries Compensation Authority (‘the Authority’) on the basis that her unlawful presence in the UK at the time of the rape made an award inappropriate under paragraph 13(e) of the 1996 Scheme. A review confirmed the decision and its reasons. A appealed to the Criminal Injuries Compensation Appeals Panel (‘the Panel’), who dismissed her appeal. The Panel concluded that A’s character and her conduct by remaining in the UK unlawfully after her leave to remain had expired made an award from public funds, whether a full or reduced award, inappropriate under paragraphs 13(d) and 13(e). The Panel said that as someone whose presence in the UK was unlawful, she was not entitled to NHS services or social security benefits and, by the same token, she should not be entitled to an award from what the Panel described as “tax payers’ money”. The Panel thought that she did not give a frank explanation about whether she had been aware of her status and what she had been intending to do about it. It found that she had not taken any steps to keep in touch with the Home Office or her solicitors in connection with her right to remain in the UK. The Panel described A’s attitude to her immigration status as cavalier. A sought judicial review of the Panel’s decision. A argued that her unlawful presence in the UK was not the type of conduct capable of affecting a claimant’s character for the purpose of paragraph 13(e), bearing in mind the Guide to the 1996 Scheme (‘the Guide’) published pursuant to paragraph 21; that it was irrational for the Panel to regard so minor an immigration offence as rendering it inappropriate for A to be compensated for the terrible ordeal she had experienced, particularly when compared with how the penalty points system operated; that the effect of paragraphs 8 and 9 of the guidance given by the Authority for use by its officers was that when someone was later found to be a refugee and had had their claim for asylum granted, the refusal of an award on the basis of their immigration status was inappropriate.
Held, quashing the decision of the Panel and directing that A’s appeal be heard by a new Panel:
(1) Whilst the Guide to the 1996 Scheme made no reference to immigration status, this did not mean that the issue could not be considered by the Panel. The Guide did not purport to give any guidance at all for conduct which had not resulted in criminal convictions. The Guide did not bind the Panel but was intended to help members of the public understand how the scheme worked. Such guidance as it gave did not fetter the extent of the discretion accorded to the Panel by the Scheme itself to make such value judgments as it thought were appropriate. The Panel could not be criticised for not taking the penalty points system for convictions into account as this was not a case of an applicant having a criminal record.
(2) The Court rejected A’s argument based on the retrospective granting of asylum as being irrelevant under the guidance given to the officers of the Authority as asylum was granted by Ireland rather than the UK. She was never granted leave to remain in the UK so she had to be treated as being in breach of the Immigration Rules and the guidance given to officers indicated that the Authority might have denied her an award on that basis.
(3) However, the Court accepted that it was at least arguable that the Panel should have asked for more details about the asylum issue and the Panel’s failure to consider the impact on A’s appeal of her subsequent grant of asylum in Ireland was a fatal flaw in its approach to her appeal. If it had taken it into account, and had addressed the question of whether A could really have been expected to leave the UK in November and December 2001, given the now accepted fear of persecution if she returned to the Ukraine, it may have come to a very different conclusion on the proper outcome of the appeal.
Parts of the scheme and other legislation referred to in judgment
Criminal Injuries Compensation Act 1995, section 1.
Criminal Injuries Compensation Scheme 1996, Paragraphs 2, 13 (d) (e), 21.
Guide to the Criminal Injuries Compensation Scheme 1996, Part 1 paragraph 1; Part 4, paragraphs 22-23
Cases referred to in the judgment:
R v Criminal Injuries Compensation Board ex parte Maxted unreported, 8 July 1994, DC
Representation:
Miss Amanda Jones, instructed by Messrs Procol & Candor LLP, London, for A.
Mr Jeremy Johnson, instructed by the Treasury Solicitor, for
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