Upper Tribunal (Immigration and asylum chamber), 2014-02-05, [2014] UKUT 84 (IAC) (RK (Deportation: basis of plea))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Vice President, Upper Tribunal Judge Kopieczek |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Reported |
| Date | 05 February 2014 |
| Published date | 26 February 2014 |
| Subject Matter | Deportation: basis of plea |
| Appeal Number | [2014] UKUT 84 (IAC) |
UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Ahmed (benefits: proof of receipt; evidence) [2013] UKUT 00084(IAC)
THE IMMIGRATION ACTS
Heard at Field House Determination promulgated
On 19 June 2012
………………………………
Before
UPPER TRIBUNAL JUDGE STOREY
UPPER TRIBUNAL JUDGE PETER LANE
UPPER TRIBUNAL JUDGE WARD
Between
ENTRY CLEARANCE OFFICER, DHAKA
Appellant
and
SOHAIL AHMED
Respondent
Representation:
Appellant: Mr G Saunders, Senior Home Office Presenting Officer
Respondent: Mr T Shah, Solicitor, Taj Solicitors
(1) In an entry clearance case involving the issue of adequacy of maintenance, it will in general assist the First-tier Tribunal or, on appeal, the Upper Tribunal if, as part of the submission, a calculation is supplied which reflects the comparison between the applicant’s and sponsor’s combined projected income if the applicant for entry clearance were in the United Kingdom on the one hand and, on the other, the amount required to provide the maintenance at a level that can properly be called adequate.
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Income received and the projection for the figures which the applicant and sponsor have to be able to find should be expressed on a consistent and arithmetically accurate basis. Benefit is usually calculated on a weekly basis but is often paid fortnightly (employment support allowance and income support) or four-weekly (child benefit), while tax credits are calculated on a daily figure and paid in general weekly (child tax credit) or fortnightly (working tax credit). A month under the Gregorian calendar is not the same as four weeks and wrongly taking a four-week period of income as equating to a month risks a potentially significant detriment to an applicant for entry clearance.
(3) It is always essential that regard is had to the benefit rates applicable at relevant times; eg in entry clearance cases, the rates in force at the date of decision. The calculation of the benefit threshold figure is an academic exercise, but establishing the benefits which a sponsor and the applicant will actually be receiving on the applicant’s arrival is far from it. The most compelling evidence of receipt of income by way of social security is likely to be proof of receipt of funds into a person’s bank account. Notices of award are intrinsically less reliable. The position of tax credits is particularly complex.
(4) It would assist if entry clearance application forms were to include questions designed to elicit the information described above and if decisions of entry clearance officers included a calculation described in (1) above.
DETERMINATION AND REASONS
1. This is the determination of the Tribunal, to which each member of the panel has contributed.
2. The respondent is a citizen of Bangladesh. On 30 December 2010 the appellant (hereafter “ECO”) refused his application for entry clearance to join his wife and two children in the UK. The respondent’s appeal came before Immigration Judge Majid, who allowed it by a determination sent on 5 August 2011.
3. The ECO’s subsequent appeal to the Upper Tribunal was successful, in that Upper Tribunal Judge Storey, at that point sitting alone, set aside the determination of Judge Majid, with the result that the decision in the respondent’s appeal needs to be re-made by the Upper Tribunal. The two issues requiring to be determined in that regard are the accommodation and the maintenance requirements in paras 281(iv) and 281(v) of Statement of Changes in Immigration Rules, HC 395 (as amended) by which it is necessary to show:
(by (iv)) that “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
(by (v)) that “the parties will be able to maintain themselves and any dependants adequately without recourse to public funds.”
4. Here reference should be made to paras 6A to 6C of the Immigration Rules as they were in force with effect from 31 March 2009 which provide:
“6A For the purpose of these Rules, a person (P) is not to be regarded as having (or potentially having) recourse to public funds because P is (or will be) reliant in whole or in part on public funds provided to P’s sponsor unless, as a result of P’s presence in the United Kingdom, the sponsor is (or would be) entitled to increased or additional public funds (save where such entitlement to increased or additional public funds is by virtue of P and the sponsor’s joint entitlement to benefits under the regulations referred to in paragraph 6B).
6B Subject to paragraph 6C, a person (P) shall not be regarded as having recourse to public funds if P is entitled to benefits specified under section 115 of the Immigration and Asylum Act 1999 by virtue of regulations made under sub‑sections (3) and (4) of that section or section 42 of the Tax Credits Act 2002.
6C A person (P) making an application from outside the United Kingdom will be regarded as having recourse to public funds where P relies upon the future entitlement to any public funds that would be payable to P or to P’s sponsor as a result of P’s presence in the United Kingdom, (including those benefits to which P or the sponsor would be entitled as a result of P’s presence in the United Kingdom under the regulations referred to in paragraph 6B).”
5. A sponsor is thus entitled to rely on his or her own recourse to public funds to the extent that paragraphs 6A to 6C of the Rules provide.
6. The re-making decision was directed to be listed before a panel comprising judges of both the Immigration and Asylum Chamber and the Administrative Appeals Chamber of the Upper Tribunal, as particularly the latter Chamber deals with matters of social security. It was hoped that as well as dealing with the present case, this might enable guidance to be given which would be useful to members of the public in a similar position to the respondent, those who advise them, the UKBA and others. As will become apparent, there are limits to the extent of guidance which can be given in this case. The complexity of the social security system is such that there is scope for points to arise on which it would not be right for this Tribunal, without the benefit of argument from persons affected by them, to express a view. Nonetheless, some practical guidance can be given.
7. Further, after this hearing was set up and following proposals set out in June 2012 in “Statement of intent: Family Migration” the Home Secretary introduced new Immigration Rules to take effect in relation to, in general, any application made on or after 9 July 2012: see HC194 (9 July 2012) and subsequent amendments. Under the new rules, for some categories of applicant, in assessing maintenance a number of the sources of income to which reference is made in the present decision, such as child benefit, working tax credit and child tax credit, will no longer be eligible to be taken into account. However, for other categories the maintenance requirements are unchanged. Further, the process of determining applications lodged before 9 July 2012 and appeals in relation to them means that primary decision-makers, the First‑tier Tribunal, the Upper Tribunal and others are likely to be concerned with the practical application of the existing rule for a while yet.
8. As this was an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 against a refusal of entry clearance, section 85(5) of that Act applied and the Tribunal (and hence the Upper Tribunal re-making a decision on appeal) was required to consider only the circumstances appertaining at the time of the decision to refuse. (It would of course be different in the case of a decision made in-country, where the matter would fall to be addressed as at the date of hearing.)
9. As regards accommodation, that matter had already been addressed by Judge Storey. In his determination of 4 April 2012 he indicated that he was satisfied that the accommodation requirement was met. Mr Saunders does not seek to challenge that conclusion. In those circumstances we need say no more about it, save to note (as it is relevant to the calculations which appear below) that the sponsor (the respondent’s wife) had been paying a sum variously expressed at £50 per week or £200 per month to the respondent’s uncle by way of rent.
10. The authorities concerning adequacy of resources were recently reviewed by the Upper Tribunal in Yarce (adequate maintenance: benefits) [2012] UKUT 00425 (IAC). The correct approach is that set out in KA and Others (Adequacy of Maintenance) Pakistan [2006] UKAIT 00065, referring to the earlier decision in Uvovo (00 TH 01450), namely:
“The appropriate method of calculation for comparative purposes is, as explained in Uvovo, to separate maintenance from accommodation,...
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