KA and Others (Adequacy of maintenance)
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 04 September 2006 |
| Neutral Citation | [2006] UKAIT 65 |
| Court | Asylum and Immigration Tribunal |
| Date | 04 September 2006 |
[2006] UKAIT 65
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Martin
Immigration Judge McLachlan
For the Appellant: Mr S Park, instructed by Park & Co Solicitors
For the Respondent: Ms O'Connor, Home Office Presenting Officer
KA and Others (Adequacy of maintenance) Pakistan
The requirement of adequacy is objective. The level of income and other benefits that would be available if the family were drawing income support remains the yardstick.
The appellants, who are all citizens of Pakistan, are the wife and four children of the Sponsor, who is an Imam and has leave to remain in the United Kingdom for employment as an Imam under paragraphs 169–177 of HC395 until 6 th January 2009. They applied for entry clearance to be with him as his spouse and children whilst he was working here. Their applications were refused on 11 th July 2005. At that date the children were aged 10, 8, 4 and 2 respectively. The Notice of Refusal is addressed to the first Appellant “and four children”, but gives five case reference numbers. It is in the following terms:–
“194. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse of a person with limited leave to enter or remain in the United Kingdom under paragraphs 128–193 (but not paragraphs 135 I–135 K) are that:
(iii) There will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(iv) The parties will be able to maintain themselves and any dependants adequately without recourse to public funds
BECAUSE
You have applied with your children to join your husband in the UK. He has been in the UK for two years but you have not applied to visit before. You stated at interview that he was busy. He has stated in the supporting documents that his income is £160 a week however this is not reflected in his bank statements. He has not provided any evidence of wage slips and tax or national insurance contributions. I am not satisfied that his earnings are as you state or that he can maintain you during your stay.
You stated at interview that you did not know how large your husband's house is. You stated that he lives alone. In the supporting documents your husband stated that he lives with a family and that two rooms will be made available to you. I am not satisfied that two rooms is adequate for you and your husband and four children to live.
If you decide to appeal against the refusal of your application, the decision will be reviewed in conjunction with your grounds of appeal. If you have any additional documentation which addresses the reasons for refusal, you are strongly advised to submit it with your notice of appeal, as it may be possible to resolve the points at issue without the necessity for an appeal hearing.
I therefore refuse your application.”
It is clear that there are a number of infelicities in that notice. In particular it is, we understand, common ground that the appropriate paragraph of HC395 for the children is 197. What is clear, however, is that the ground of refusal is that the entry clearance officer was not satisfied that the maintenance and accommodation requirements of the immigration rules would be met.
An Immigration Judge allowed the Appellants' appeals in a determination sent to the parties on 7 th February 2006. Having reviewed the evidence she concluded that:
“the Sponsor lived and lives frugally and on £160 per week has been able to send £400 or so to his family per month though he has not had to pay his keep. …. It is plain that he is not paying in actuality a market rate and in fact [a third party] is subsidising the costs. I bear in mind that income support is for living expenditure and include some allowance beyond food; for furnishing, travel etc. that is minimal but is built in. The Appellants would not be living in accommodation that requires such needs to be met.
That he will do so is unchallenged, as is the fact that the Sponsor has saved money despite the modest income…. In this case to notwithstanding that evidence impose a requirement that income support levels must be met to satisfy the Rules would be arbitrary and against the actual ability to maintain as evidenced. [sic] The Rules do not prescribe a minimum and I would be wrong to apply one irrespective of the facts. The Respondent will have opportunity to review this family situation should further leave be sought but on the evidence at date of hearing even though there is a deficit of about £100 compared to the income support level the Appellants did show that they could be maintained without recourse to public funds.”
The Respondent sought and obtained an order for reconsideration. The ground is, in summary, that the Immigration Judge failed to consider whether the Appellants would be adequately maintained on almost £100 per week less than the income support level.
In the course of his submissions in response to the grounds, Mr Park asserted that there are indeed in the Immigration Rules no specific requirements that the level of maintenance available to applicants be at any particular standard. He said that if the Immigration Rules had intended to impose such a standard, whether by reference to the income support levels or otherwise, they could have said so. The fact that they did not say so meant that adequacy was a matter purely for the discretion, or perhaps more properly assessment, of the Immigration Judge.
We do not accept that submission. Although it may be said that there is an element of imprecision in the relevant Immigration Rules, the requirement that the maintenance be “adequate” cannot properly be ignored. To our mind the use of that word imposes an objective standard. It is not sufficient that maintenance and accommodation be available at a standard which the parties and their family are prepared to tolerate: the maintenance and accommodation must be at a level which can properly be called adequate.
There is a good reason for using the levels of income support as a test. The reason is that income support is the level of income provided by the United Kingdom government to those who have no other source of income. It follows from that that the Respondent could not properly argue that a family who have as much as they would have on income support is not adequately maintained.
It perhaps does not necessarily follow that in order to be adequately maintained one has to have resources at least equivalent to those which would be available to a family on income support. But there are very good reasons for taking that view. A family of British (or EU) citizens resident in this country will not have less than that level. It is extremely undesirable that the Rules should be interpreted in such a way as to envisage immigrant families existing (and hence being required to exist, because social security benefits are not available to them) on resources less than those which would be available through the social security system to citizen families. To do so is to encourage the view that immigrant families need less, or can be expected to live on less, and in certain areas of the country would be prone to create whole communities living at a lower standard than even the poorest of British citizens. It is for this reason that a number of Tribunal cases, including Islam (13183), ...
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