Begum, R (on the application of) v Social Security Commissioner

SIR CHRISTOPHER BELLAMY: The claimant, Zar Begum, seeks judicial review of the decision of the Social Security Commissioner dated 14th January 2003 refusing leave to appeal the decision of the Coventry Appeal Tribunal dated 4th November 2002, which in turn rejected the claimant's appeal against the decision of the Benefits Agency of 23rd January 2002 refusing the claimant income support.

The basis for refusing the claimant income support was that she entered the United Kingdom on the basis of a sponsorship undertaken by her son-in-law dated 18th March 1998 and was not therefore entitled to income support at the time of her claim.

The issue before me is whether the decision of the Commissioner and/or the decision of the Appeal Tribunal was rightly and lawfully founded on an undertaking given by the claimant's son-in-law on 18th March 1998.

The claimant is aged 71 and resides with her daughter. She arrived from Pakistan on 8th May 1998. Prior to that, on 18th March 1998, the claimant's son-in-law, Mohammed Wahid, gave an undertaking to the entry clearance officer, in the following terms:

It appears that on the basis of that document the Immigration Section of the High Commission in Islamabad granted the claimant an entry certificate to the United Kingdom dated 1st April 1998, which is stamped in the claimant's passport. That bears the wording: "Visa D settlement to join son single entry". At the same place in the passport there is also some writing, somewhat difficult to decipher, which appears to say: "Visa issued to Zar Begum to join Mohammed Wahid only."

It seems that the claimant presented her passport when she arrived at Heathrow on 1st May 1998. On that occasion her passport appears to have been stamped "Given leave to enter the United Kingdom for an indefinite period".

Apparently the claimant claimed income support on 17th November 1998, which was awarded from 10th May 1999, the claimant not indicating at that time there was any sponsorship agreement. It seems that the payment of income support was suspended the following February following a routine check.

There then followed some contact with the British High Commission in Islamabad, and on 29th April 2000 the High Commission sent a letter to the Benefits Agency, referring to the claimant, which states as follows:

The granting of leave to enter the United Kingdom is of course regulated by various provisions of the Immigration Rules which are in HC395. Paragraph 317 states that:

Paragraph 35 of the Immigration Rules provides in the first sentence:

The claimant was given leave to enter pursuant to the provisions of the Immigration Act 1971. At this stage, it seems to me necessary to identify the provisions relating to income support that were applicable at the relevant time. Up to April 2000, the matter appears to have been governed by regulation 21(3)(i) of the Income Support (General Regulations) 1987. That provision excludes from income support various people, including a person who at the date of claim:

I should mention that under section 115(9)(c) there is a further definition of a person subject to immigration control, namely a person who: "(b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds". As far as I can judge in this case we are not concerned with subparagraph (b), we are concerned solely with subparagraph (c) and in particular whether the claimant was given leave to enter the United Kingdom as a result of a maintenance undertaking within the meaning of that provision, and in particular as a result of a maintenance undertaking as defined in subsection (10) of section 115.

It appears to me that the relevant legal provisions, that is to say the former Regulation 21(3(i) of the Income Support Regulations and section 115(9) of the 1991 Act, changed halfway through this case, but as far as I can judge there is no material difference for present purposes in the wording between them.

It appears to be common ground that Parliament has not prescribed any statutory forms for the giving of the relevant maintenance undertaking other than the requirement that it should be in writing in accordance with the provisions that I have just cited. However, there are two apparently official forms that are in use in this context. The first is a form entitled "RON 112", which is a form apparently used by the Home Office, which contains a form for the undertaking to be given. It is headed "Undertaking given in pursuance of Immigration Rules". It sets out what the undertaking is, and in particular in paragraph 2 it states that the person giving the undertaking undertakes that he shall be "responsible for his/her maintenance and accommodation in the United Kingdom, throughout the period of that leave and any variation of it" in respect of a person given leave to enter or remain in the United Kingdom. The undertaking further contains a provision that the Department of Health and Social Security may take appropriate steps to recover from the giver of the undertaking the cost of any income support paid to or respect of the person who is the subject of the undertaking. There is then on the bottom of the form a certificate which can be signed on behalf of the Secretary of State certifying that that is an undertaking given pursuant to Immigration Rules within the meaning of the Immigration Act 1971. The form that I have just cited in the papers before me carries the print date of March 1989.

There is then a second form which has figured in the argument, which is apparently known as SET(F). The version in the papers before the court appears to be the version described as 11/2002, which I infer means that this is a form that was in use in November 2002. It is not clear to me that this form was the form in use at the time that this applicant sought leave to enter the United Kingdom in 1998. However, the form SET(F) is a somewhat more detailed version of RON 112. It contains an undertaking that if the sponsored person is granted leave to enter or remain in the United Kingdom on a permanent basis "I shall be responsible for his/her maintenance and accommodation in the UK throughout the period of leave and any variation of it". It then contains further undertakings to the effect that the undertaking will be made available to the Department of Social Security, who may take steps to recover the cost of income support paid to or in respect of the sponsored person from the person giving the undertaking. A similar undertaking is provided in relation to amounts attributable to any support provided under section 95 of the Immigration and Asylum Act 1999. The undertaking further refers to the fact that the giver understands that he may be committing a criminal offence and liable to prosecution if, after giving the undertaking, he does not support the person named and income support under the social security legislation or asylum legislation is provided in respect of that sponsored person. So it is a much more formal version of the earlier form.

The essential argument presented by the claimant in this case is that the undertaking that was in fact given on 18th March 1998 is not an undertaking for the purposes of the Immigration Rules or the statutory provisions that I have cited because it is not contained on an official form and lacks the necessary degree of formality to be considered as an undertaking within the meaning of those provisions.

The submission is that an undertaking within the meaning of section 115(9)(c) means a valid and formal maintenance undertaking; the words "given as a result of the maintenance undertaking" mean "given as a result of a valid and formal maintenance undertaking". The same argument, I think, would apply to regulation 21(3(i) of the 1987 Regulations.

Reference is particularly made to the citation of an instruction given by the Immigration Directorate, which is cited in a decision of the Social Security Commissioner No CIS/2816/2002, which provides that:

It is submitted on behalf of the claimant that whether there is a maintenance undertaking is a question of law. The undertaking must be, in particular, specific in content. One must bear in mind that the undertaking is not only directed to the entry officer, but also to the Benefits Agency because it denies access to benefits. It is a document that has legal effect and it should, it is submitted, contain a number of essential matters as highlighted by RON 112 and SET(F). That is to say, it should provide for an acceptance of liability to accommodate and maintain; the period in respect of that liability must be clearly specified; the sponsor must be informed that the relevant department may seek to recover benefits paid; the sponsor should be informed that he may be liable to prosecution; and, finally, there should be a provision for the undertaking to be certified by the Secretary of State as an undertaking within the meaning of the relevant statutory provisions. Particular reliance is placed on certification and the evidential requirements of section 178 of the Social Security Administration Act 1992 and section 32 of the Immigration Act 1971. It is also emphasised that immigration officers must act in accordance with instructions given under the 1971 Act and must accordingly take account of the instruction relating to form SET(F) which I have just cited.

In response to those arguments, the Secretary of State submits essentially that no particular form is required for a maintenance undertaking of the kind here in question under the statutory provisions and that various decisions, three in number, of the Social Security Commissioners are to that effect and are correctly reasoned.

In my view, this case must first be situated in its correct time frame, as I have already indicated. The undertaking relied on is dated 18th March 1998. The claimant entered United Kingdom on 8th May 1998 and claimed benefit in November 1998, which was awarded from May 1999. All those events predate the coming into force of the Immigration and Asylum Act 1999.

It thus seems to me that the correct question is whether the undertaking at the time it was made, 18th March 1998, was "an undertaking given by another person or persons in writing in pursuance with immigration rules within the meaning of the Immigration Act 1971 to be responsible for his maintenance and accommodation" within the meaning of regulation 21(3)(i) of the Income Support (General Regulations) 1987. However, I think as I have already said, there is probably little or no difference to the result of this case whether we are under the 1987 Regulations or whether we are under section 115(9) and (10) of the 1999 Act.

There is no prescribed form for any written undertaking. RON 112 did exist at the time but it was not prescribed by Parliament as a form that must be used.

In my judgment, it is not established that the more precise form, SET(F), which seems to postdate the 1999 Act, existed in 1998, or that there were at that time any precise instructions regarding the use of that form. Arguments based on the formality now contained in that form or on legislation or instructions later than events with which we are concerned do not, in my judgment, carry much weight.

Does the fact that the undertaking in this case was not on the form RON 112 mean that it is not an undertaking or a maintenance undertaking for the purposes of the 1987 Regulations or the 1999 Act?

It seems to me there is no doubt in this case that:

There are at least three decisions by Social Security Commissioners which hold that the fact that an undertaking is not on an official form does not mean that the undertaking is not a maintenance undertaking for the purposes of the legislation.

In CIS/2474/1999, Mr Williams, Commissioner, decided that the fact that an undertaking was not on form RON 112 was not fatal to the issue. It was an issue of fact in each case whether the document in question amounted to an undertaking for the purposes of regulation 23(3)(i) of the Income Support (General Regulations).

That decision of 26th August 1999 was followed by Mrs Fellner, sitting as a Commissioner, on 11th October 2002 in CIS/47/02. She emphasised in particular, at paragraph 27, that it was a matter of fact, and among relevant considerations were whether the declaration in question was made for the express purpose of securing entry clearance and whether it was treated, in particular by the immigration authorities, as an undertaking for the purpose of the Rules.

Mr Nicholas Paines QC, sitting as a Deputy Commissioner on 8th November 2002, in decision CIS/2816/2002 followed Mr Williams' reasoning. He held in particular at paragraph 15 as follows:

In my judgment, the three decisions of the Social Security Commissioners which I have cited are sound in law. It is a question of fact in each case whether the undertaking in question, the document relied on, amounts to an undertaking for the purposes of the relevant legislation. The fact that it is not on the form in use at the time is not, in my judgment, fatal. In this particular case it seems to me that the undertaking that was actually given, which I have cited above, is sufficiently formal and definite to constitute an undertaking. It contains an express undertaking that the claimant will be maintained and accommodated without recourse to public funds. It is drawn by solicitors and witnessed.

It is undoubtedly the case that the applicant entered the United Kingdom on the basis of that undertaking and was given leave to enter the United Kingdom because the undertaking had been given.

In those circumstances, in my judgment this is an undertaking for the purposes of the relevant statutory provisions.

The contrary argument would mean that the claimant would have obtained the advantage of leave to enter the United Kingdom on the basis of an undertaking that there was not to be any recourse to public funds, and then would in fact be able to claim support from public funds because of a failure of the formalities. In my judgment, such a consequence should not normally follow unless it is absolutely clear that that was the intention of Parliament. It is only if Parliament had expressly required a particular formality to be imperatively followed that I would be prepared to accept such a consequence.

It follows that the principal argument put forward on behalf of the claimant, in my judgment, fails. It also follows that the claimant is and always was a person subject to immigration control for present purposes.

Two other arguments were briefly put forward. It was first argued that the Appeal Tribunal erred in finding that the undertaking of support was valid for longer than six months and was wrong to hold that it lasted throughout the claimant's stay in the United Kingdom. The reasoning is said to be defective and the conclusion perverse. That seems to me to be an issue of fact, not sustainable on judicial review unless the court is satisfied that the finding was indeed a finding to which no reasonable tribunal could come.

The Appeal Tribunal sets out its reasoning fully, at page 46 of the court bundle, in its decision, and it does not seem to me necessary to cite that reasoning any further. The Tribunal in my view was entitled to reach the finding that it did on that point.

It is finally submitted that there was no evidence that the claimant's leave to enter was in fact granted on the basis of the undertaking. I have already intimated that, in my judgment, there is no doubt that that was indeed the case. That, in my judgment, is to be inferred from the correspondence with the British High Commission in Islamabad and is also an overwhelming influence from the Immigration Rules read as a whole, particularly paragraphs 35, 317(iva), and 320(14), which I have already cited.

The overall result in this case, therefore, is that the application for judicial review is dismissed.

MS HAYNES: My Lord, the respondent does seek its costs. However, the claimant is of course legally aided and therefore it will be the usual form of order in such cases.

SIR CHRISTOPHER BELLAMY: Yes, which is costs but not to be enforced without leave of the court.

MS HAYNES: Indeed.

MS MCCULLOCH-JAMES: My Lord, the claimant seeks permission to appeal this decision. I do not intend to rehearse the grounds that have been elucidated by my learned friend, Mr de Mello, save to say that the critical point is whether the undertaking should have been a formal document, and it is the claimant's position that it ought to have been a formal document.

SIR CHRISTOPHER BELLAMY: I have to refuse you leave to appeal, Miss McCulloch-James. You will have to ask the Court of Appeal.

MS MCCULLOCH-JAMES: My Lord, yes. Could we have a detailed assessment of the Claimant's publicly funded costs?

SIR CHRISTOPHER BELLAMY: Yes.

MS MCCULLOCH-JAMES: I am obliged, my Lord.