MK (Somalia) v Entry Clearance Officer
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Sedley,Lord Justice Rimer |
| Judgment Date | 28 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1521 |
| Date | 28 November 2007 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2007/1153 |
[2007] EWCA Civ 1521
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL.
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Sedley and
Lord Justice Rimer
Case No: C5/2007/1153
[AIT No: OA/35200/2005]
Mr P Nathan (instructed by Messrs Hersi & Co) appeared on behalf of the Appellant.
Ms K Olley (instructed by The Treasury Solicitors) appeared on behalf of the Respondent.
This is an appeal against a decision of the Asylum and Immigration Tribunal (“the Tribunal”), Miss Arfon-Jones, Deputy President, presiding, promulgated on 13 March 2007, by which it dismissed an appeal against the refusal of the entry clearance officer Addis Ababa to grant entry clearance to the United Kingdom to the appellant MK as spouse of KG. The decision was made upon a reconsideration, the Tribunal finding that the immigration judge had, in a determination of 24 October 2006, made no error of law. The Tribunal set out the basic facts.
“1. The appellant is a citizen of Somalia born on 9 April 1992. He applied from Ethiopia to the respondent for entry clearance to the United Kingdom as a spouse.
“2. His wife, KG, 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 [sponsor] 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 was 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.
“3. 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.”
Having referred to the decision of the immigration judge the Tribunal stated at paragraph 11:
“The first thing we needed to decide was whether, when looking at the sponsor's income the immigration judge should only have considered the basic income support level, or whether it was appropriate to consider the whole of the sponsor's benefits. The latter would be considered on the basis that the benefits are paid to her as being necessary. Mr Nathan [who is counsel for the appellant before the tribunal as he is before this court] argued that the Disability Living Allowance of £33 was available to the sponsor to spend as she wished. He said that, at present, the sponsor's sister is her carer, but he was unable to demonstrate that the £16.50, paid for help with the sponsor's care, was handed to her sister. Unless it was, it is reasonable to assume that the sponsor used it for other expenses arising from her disability. If so, it would not be available to spend on the appellant, even if he took over as carer. At the date of decision, the proposal was that the appellant would go to live in the house occupied by the sponsor and her sister and brother. Her sister and brother did not have anywhere else to go.”
The house is the adequate accommodation which meets the requirements of immigration rule 281(iv). No evidence was called before the Tribunal and a question may arise on the status of the findings of fact in paragraph 11, but it is not necessary to resolve that to decide the point of law now in issue. As defined by the appellant, the issue is: “whether an individual seeking Entry Clearance is able to rely on money paid to the sponsor for the purposes of Disability Living Allowance” (“DLA”). Insofar as is material, Immigration Rule 281 of HC 395 provides:
“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) …”
The only requirement not satisfied in the opinion of the Tribunal was that in paragraph (v). The question is whether DLA should be treated as available, for the purposes of 281(v), to a spouse seeking entry. DLA is paid to the sponsor under sections 72 and 73 of the Social Security Contributions and Benefits Act 1992. It is a non-means-tested benefit. There is a care component, section 72, and a mobility component, section 7The rate at which the allowance is paid depends on the severity of the disability. Payment of the care component requires a person to be “severely disabled physically or mentally”. The sponsor is paid middle-rate care component and lower-rate mobility component. It is accepted that she may use the payments in any way she pleases to obtain the assistance she needs. For the purposes of the mobility component, the appellant is in the category defined in section 73(1)(d):
“able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.”
The Tribunal stated at paragraph 13:
“The government does not provide 'bonuses' to the recipients of benefits. The £33 disability living allowance is paid to the sponsor because she is perceived as having greater needs for funds than an able bodied person. We do not accept the proposition that the Disability Living Allowance is an extra amount of money which a person may or may not need and which, together with the enhanced income support, would put the sponsor in the position that she had more funds than the joint income support level which is the minimum level for an able bodied couple.”
I refer to the findings on the figures. It is accepted by Mr Nathan, for the appellant, that money received by the sponsor as income support cannot be taken into account as money available for the appellant's maintenance. That is because it is assessed on the basis that it is the bare minimum required to support the person to whom it is paid. The sponsor received the sum of £70 a week by way of income support, though described in the Tribunal's decision, wrongly, we are told, as jobseeker's allowance. That included £12.55 paid as necessary because of the sponsor's disability. No challenge is made to the Tribunal's finding at paragraph 15.
“Reference in the authorities as to income support should be taken to include any enhanced income support and other benefits arising for example, out of any disability. Such enhanced benefit is provided by the state because it is needed. A level of income below that enhanced level would not be adequate for such an individual with those disabilities.”
The sum required to comply with the paragraph 281(v) requirement is £102.65, if, as Mr Nathan accepts, one should add the £12.55 to the sum of £90.10 normally taken as the minimum to support a married couple. The appellant's case is that the sum of £33 a week, paid to the sponsor by way of DLA, should be added to £70 to produce a figure which just exceeds the paragraph 281(v) requirement.
Having referred to the case of KA and Others (Pakistan) v SSHD [2006] UKAIT 00065, which is now accepted not to be relevant, the Tribunal stated its conclusion at paragraph 18:
“Disability Living Allowance is there to help towards necessary care and necessary extra mobility expenses arising from the disability. It is awarded after the completion of a complex form and an assessment, often including a medical assessment. Even if the sponsor did not use all of it (and it is only £33 per week) it has not been demonstrated that she does not have a need for it.”
When refusing permission to appeal from the Tribunal a senior immigration judge stated:
“The grounds do not show that the Tribunal erred in law. The provisions of sections 72 and 73 of the Social Security Contributions and Benefits Act 1992 do not demonstrate that the appellant's wife's disability living allowance is, or should be, considered as available to maintain the appellant.”
Miss Olley for the respondent, having conferred with the Department of Work and Pensions, accepts that there is no control over the way DLA is spent. With the object, no doubt, or one of the objects, of avoiding the need for a policing procedure, the severely disabled person is left with a complete discretion as to how or indeed whether the money is spent. Payment for attendance is certainly a possibility but it could also be used in other ways to ameliorate the disability concerned. Taxis, for example, may be preferred in the case of a physical...
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