MK (Adequacy of maintenance – disabled sponsor)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Mather |
| Judgment Date | 13 March 2007 |
| Neutral Citation | [2007] UKAIT 28 |
| Court | Asylum and Immigration Tribunal |
| Date | 13 March 2007 |
[2007] UKAIT 28
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Miss E Arfon-Jones, DEPUTY PRESIDENT of the AIT
SENIOR IMMIGRATION JUDGE Mather
For the Appellant: Mr P Nathan of Counsel instructed by Hersi & Co. Solicitors
For the Respondent: Miss S Leatherland, Home Office Presenting Officer
MK (Adequacy of maintenance — disabled sponsor) Somalia
For the purpose of assessing adequacy of maintenance by reference to state benefits, the standard amount of Income Support, or Jobseeker's Allowance is the starting point for the able bodied: KA and others (Adequacy of Maintenance) Pakistan [2006] UKAIT 00065 applied.
Where a sponsor has disabilities it should be assumed that enhanced benefits, such as a higher rate of Income Support, or Disability Living Allowance, have been awarded out of necessity and are not available to support dependants coming from abroad.
The appellant is a citizen of Somalia, born on 12 July 2004. He applied from Ethiopia to the respondent for entry clearance to the United Kingdom as a spouse.
His wife is his sponsor. She has been recognised as a refugee by the United Kingdom. She is deaf and dumb and lives in the United Kingdom with her sister, SG. The sponsor's sister is a British citizen, having come here as a refugee. The sponsor arrived in August 2000 with other siblings, including her brother MG who is also deaf and dumb. SG cares for both the appellant and her brother. According to the statement made by SG for the Immigration Judge' s hearing, the appellant, who is living in Djibouti, came to the notice of the sponsor in 2003 after MG travelled there. The appellant was a childhood friend of the sponsor's family. It is said that when the sponsor came to live in the UK, she had been disappointed that the appellant did not accompany them. After his visit, MG brought back photographs, which he showed the sponsor, who became obsessed by them. The family eventually agreed that the appellant could marry the sponsor, provided he first travelled to Ethiopia and spoke to the sponsor's mother. Despite some reluctance, her mother agreed to the wedding.
After the wedding, the appellant applied for entry clearance to enable him to come to the United Kingdom as ‘the spouse of a person settled here’. That application was refused on 7 December 2005. The appellant appealed.
The relevant immigration rule is Paragraph 281 of HC 395. So far as relevant it reads:-
281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse … of a person present and settled in the United Kingdom … are that:
(i) (a) the applicant is married to … a person present and settled in the United Kingdom … or
(b) …; and
(iii) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and
(iv) 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
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) ….
In a determination, promulgated on 24 October 2006, Immigration Judge Kelsey accepted that the marriage was genuine and subsisting. He also accepted that there would be adequate accommodation available for the appellant, without recourse to public funds.
The Immigration Judge was not satisfied that the appellant and sponsor could adequately maintain and support themselves without any additional recourse to public funds, the sponsor living entirely on benefits at the date of decision. The Immigration Judge heard argument, based on an old Immigration Appeal Tribunal case, Uvovo 00/TH/01450, to the effect that as the sponsor was already receiving income which was at a higher level than the amount of job seekers allowance paid to a married couple the appellant and sponsor would be able to maintain and support themselves without any additional recourse to public funds. He did not accept that argument because the appellant's income is derived from income support, plus an allowance because of her disabilities. He recognised that Uvovo dealt with income (by which he meant earned income) which was not a large amount but which was higher than the income support level for a married couple. He said this case was different. In his words:
“It stands to reason, it seems to me, that a single person in receipt of certain benefits has those benefits assessed on the basis that she is a single person and needs that amount of money for her situation”.
He went on to say that, unless the appellant had a separate income the appellant and sponsor would, as a married couple, be entitled to reassessment and therefore higher benefits than the sponsor receives now. He also said that there must be an exception to the decision in Uvovo for a person who has additional benefits for medical reasons. He did not accept that the principle in Uvovo applied to the facts in this particular appeal. He also said that if, as the sponsor had said, they wished to make an application for separate accommodation, that would give rise to further assessments being made and an inevitable increase in the award of public funds.
The grounds in support of the application for review attack those findings, making a number of different points. First, it is suggested that the Immigration Judge erred in law by speculating what the position might be if, at some future point, the couple applied for separate accommodation. Second, it was asserted that the Immigration Judge had erred in failing to apply Uvovo, saying that the principles had been restated in KA and others (Adequacy of Maintenance) Pakistan [2006] UKAIT 00065. Third (but Mr Nathan did not proceed with this) it was argued that the Immigration Judge had failed to take into account evidence that the sponsor lived frugally and regularly sent money abroad to the appellant.
In addition to those specific grounds, a number of generalised points were made. First, that the disability benefit which the sponsor...
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