Yarce (Adequate Maintenance: Benefits) [Upper Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | Peter Lane,Storey UTJ,Storey,P Lane UTJ,Ward,Ward UTJ |
| Judgment Date | 17 October 2012 |
| Neutral Citation | [2012] UKUT 425 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 17 October 2012 |
[2012] UKUT 425 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
UPPER TRIBUNAL JUDGE Peter Lane
UPPER TRIBUNAL JUDGE Ward
For the Appellant: Mr G. Saunders, Senior Home Office Presenting Officer
For the Respondent: Mr T. Hussain, Counsel, instructed by Parker Rhodes Hickmotts Solicitors
Yarce (adequate maintenance: benefits)
1. The requirement to show that a person or persons can be maintained (or will maintain themselves) “adequately” without recourse to public funds has long been a requirement of the immigration rules. It continues to be a requirement for various categories of person in the amended rules that came into force in July 2012. In order to establish that maintenance is “adequate” under the rules as in force before 9 July 2012, an applicant needs to show that the resources available will meet or exceed the relevant income support level set by the United Kingdom government ( KA (Pakistan) [2006] UKAIT 00065). A similar requirement is to be found in the definitions of “adequate” and “adequately” in paragraph 6 of the rules as amended in July 2012.
2. In calculating the level of resources that will be available to the applicant and any relevant family members, after the claimant's hypothetical arrival in the United Kingdom, it may be necessary to consider the effect on such a member's entitlement to benefits of income and/or capital.
3. Income support is a means-tested benefit. The general rule is that all income, including that from other social security benefits, is to be taken into account when calculating an individual's entitlement to income support, unless a specific “disregard” applies. A list of disregards is to be found in Schedule 9 to the Income Support (General) Regulations 1987. They include “voluntary payments”. For the purposes of the 1987 Regulations, a voluntary payment is a payment by a third party, without anything being obtained in return, tangible or otherwise ( R v Doncaster Borough Council ex parte Boulton [1993] 25 HLR 195; R(H) 5/05).
4. Access to capital may have an effect upon a person's means tested benefits, provided that the person concerned has a beneficial interest in the capital. At present, a person is not entitled to income support if he or she has such an interest in capital over £16,000 (regulation 45 of the 1987 Regulations). Capital of less than £6,000 has no effect on entitlement to income support. Capital of between £6,000 and £16,000 causes weekly income support to be reduced by £1 for every £250 or part of such capital (regulation 53).
5. If a person is given money in order for it to be used for a particular purpose and on condition that the money must be returned if not used for that purpose, then the money will be regarded as being held on trust by that person for that purpose and, if the purpose fails, on a resulting trust for the payer. It will accordingly, at least in general, not be treated as the person's capital, since he or she has no beneficial interest in it ( Barclays Bank Limited v Quistclose Investments Limited [1970] AC 567).
6. In considering the above matters in an immigration appeal, it is important to bear in mind (a) that the appellant carries the legal burden of proving that he or she meets the relevant requirements of the immigration rules; and (b) in the light of [19] of Mahad [2009] UKSC 16, any case that depends for its success upon a third party's voluntary payment will need to be scrutinised with particular care. Much will turn on the credibility of the appellant, sponsor and third party, both generally and as to the specifics of the actual payments. The same is true in relation to any assertion that income paid to or capital or other sums held by a sponsor who is in receipt of benefits are to be treated as being subject to “Quistclose” trusts. A specific decision in an individual's favour by the Department for Work and Pensions (“DWP”) will normally be determinative, unless it can be shown the DWP was materially misled. Conversely, the mere absence of an adverse DWP decision will not usually take the appellant's case materially forward.
7. Because these issues involve mixed fact and law, an appellant in an immigration appeal must be able to demonstrate, either that the actual financial position, on arrival, will be such as to make it unnecessary to rely on benefits in order to provide a standard of living equivalent to that available on means tested benefits; or that the relevant law bears on the circumstances of the family in such a way that there will be no additional recourse to public funds in so relying.
This is the determination of the Tribunal, to which each of the panel has contributed. It concerns a respondent who is a citizen of Colombia, born on 7 November 1985. He is currently resident in Spain. Whilst in Gran Canaria, the respondent met a British citizen (the sponsor) who was working there temporarily. The parties subsequently married and two children have been born to them. The sponsor and their children live in the United Kingdom.
Since the birth of her children, the sponsor has not worked. She is in receipt of a number of United Kingdom state benefits. In 2010 the respondent applied for entry clearance to the United Kingdom as the spouse of the sponsor. On 26 November 2010 the Entry Clearance Officer refused the respondent's application. The Entry Clearance Officer took issue with the ability of the parties to maintain and accommodate themselves without (additional) recourse to public funds, as required by paragraph 281 of the Immigration Rules. In essence, the Entry Clearance Officer was concerned about the sponsor's precarious financial position.
The notice of decision made reference to the fact that the sponsor's mother had been making payments to the sponsor at the rate of £160 per week. It is somewhat unclear from the notice of decision what, if anything, the Entry Clearance Officer made of this matter. The Entry Clearance Manager, however, writing after receipt of the respondent's notice and grounds of appeal, took issue with the credibility of these payments from the mother, since it was (mistakenly) thought that, on an annualised basis, they comprised almost the entirety of the mother's declared salary.
At the date of the Entry Clearance Officer's decision, there was no requirement in the Immigration Rules for the respondent to demonstrate that he had reached any objectively-set standard for conversing in the English language. The Entry Clearance Officer, nevertheless, was doubtful that the respondent's English would be such as to enable him to work in the United Kingdom. This was despite evidence that the sponsor's aunt was willing and able to give the respondent the necessary training for him to work for her company in the United Kingdom.
The respondent's appeal against the Entry Clearance Officer's decision was heard at Bradford in May 2011 by Immigration Judge Henderson. The judge heard evidence from the sponsor and the sponsor's mother.
At paragraph 4 of the determination, the judge recorded the sponsor as explaining that the payments of £160 a week into her Nat West current account came from her mother, who “was able to support her [with] such a large sum”. The sponsor was also asked, “how long her family had been supporting her”. At paragraph 15, the judge recorded asking the sponsor “to clarify whether the money paid to her from her mother was as a loan or as a gift”. In paragraph 18, the judge recorded the sponsor's mother as being asked “to confirm whether she required the repayment of money she gave to her daughter”.
The judge's findings and reasons were recorded at paragraphs 22 to 31 of her determination. At paragraph 22, the judge recorded the sponsor as receiving “substantial material and emotional support from her family in this country”. At paragraph 23, no doubt bearing in mind the judgments of the Supreme Court in Mahad [2009] UKSC 16, the judge described the main issue as being “whether or not the third-party support provided is assured, reliable and credible and was so at the date of the decision”. The judge was satisfied that the level of income of the sponsor's mother was, in reality, considerably greater than had been thought by the Entry Clearance Officer. The mother was, accordingly, well able to make the payments of £160 a week to the sponsor. This was before one took account of the fact that the sponsor's father also worked. The couple's joint income was around £39,000 per annum.
The judge was plainly impressed by the manner and content of the evidence of both the sponsor and her mother. At paragraph 25, the judge accepted that the mother “would continue to support her daughter and the [respondent] for as long as necessary”. At paragraph 26 the judge concluded that the mother was “in a position to provide realistic support at the current level for the foreseeable future”.
At paragraph 27, the judge turned to the various sources of income available. The cost of maintaining the respondent, the sponsor and their child was agreed between the parties as being approximately £222.75, which included rent. While we note that it was an agreed figure, the basis of calculation is not evident to us, though we accept that the resources of the sponsor would have been required to extend to the maintenance of a couple at income support levels rather than, as previously, the sponsor as a lone parent.
However, even taking account of the payment of £160, the judge concluded that the income of the sponsor from her various benefits still fell short of the required £222.75 figure, albeit by no more than around £27 (it seems, a week). At...
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