AB v The Entry Clearance Officer, Islamabad

The appellant is a citizen of Pakistan. He appealed to the Tribunal against the decision of the respondent Entry Clearance Officer on 23 February 2007, refusing him entry clearance to the United Kingdom as the spouse of a person present and settled here. The Immigration Judge allowed the appeal. The respondent applied for and obtained an order for reconsideration. Thus the matter comes before us.

The Immigration Judge’s decision was to the effect that so far as concerned the contested parts of paragraph 281 of the Statement of Changes in Immigration Rules HC 395, the appellant met those requirements. They were sub-paras (iv) and (v) which read as follows:

The Immigration Judge also found as a fact that the appellant’s wife was working in the United Kingdom and that she had an income which amounted to some £115 after tax, per week, at the date of the decision. She had also been able to amass a certain amount by way of savings which was, at the date of the decision, about £6,000.

The Immigration Judge was asked by the Presenting Officer, on behalf of the Entry Clearance Officer, to say that under those circumstances the appellant did not meet the requirements of the Immigration Rules. The reason was that, although if one took sub-paragraph (v) in isolation, the appellant could meet the maintenance requirements of the Rules because the income of his wife was more than would be available to a couple on Income Support, her income was not sufficient to enable the parties to accommodate themselves if it were not the fact that the sponsor was so generously providing accommodation for them.

The Immigration Judge was asked to say that the requirements for sub-paragraphs (iv) and (v) should be taken together, that they should be taken in the sense adumbrated by the Tribunal in AM [2007] UKAIT 00058, and that therefore it was necessary for the appellant to show not merely that accommodation was available and that he and his wife would be able maintain themselves, but that they would have sufficient resources to be able to accommodate themselves should the need arise.

The Immigration Judge rejected that argument. He noted the difference in wording between sub-paragraphs (iv) and (v) and he said:

“In my judgement there is no justification for importing into the provisions [of sub-paragraph (iv)], a requirement that an applicant and/or a sponsor should in some way fund the accommodation that they occupy. Subparagraph 281(iv) requires that there will be adequate accommodation. In my judgement, an applicant can satisfy this requirement by establishing that he and his spouse will live with a relative, provided there is a sufficient expectation that the accommodation will continue to be available for their occupation.”

It is for that reason, on the facts that he had found, that he allowed the appeal, although we should indicate that he also observed that there was no evidence that the appellant himself had access to any employment.

In the grounds for reconsideration, upon which Mr. Tarlow relies before us, the point is put as follows:

“The Immigration Judge appears to have rejected the argument of the Presenting Officer regarding AM, without considering the import of the free accommodation on the sponsor’s ability to maintain the appellant. While it is acknowledged that the sponsor has savings of six thousand pounds, there is no assessment by the Immigration Judge as to whether without the free accommodation the sponsor would be able to maintain the appellant.”

Mr. Chaudhary has pointed out that the question before us today affects a considerable number of appellants, and it affects also the general assumption that in cases of this nature accommodation will commonly be provided by friends or, particularly, relatives of the parties. He reminds us that sub-paragraphs (iv) and (v) of para 281 are expressed differently, and he suggests that the intention is different. He suggests that the emphasis in para 281(iv) is essentially on the “exclusively” requirement, that is to say that the parties need to have property available which they can call their own as home, even if is as little as their own bedroom in an otherwise shared house, as explained by the Tribunal in KJ [2008] UKAIT 00006: but that in sub-para (v) the emphasis is on the source of the funds available for maintenance.

Access to accommodation in the United Kingdom is, as is well known, an expensive matter. Families with members who are entirely British citizens frequently find that it is necessary for adult children to continue to live at home until they can afford to live somewhere by themselves. It is part of the common experience of mankind that children, even adult children, continue to live with their parents or sometimes other relatives.

In one sense, as was pointed out in argument, it might make a nonsense of the rules to say that for the day-to-day maintenance, which may well be relatively inexpensive, the parties should provide their own funds, whereas for the most expensive part of their life, that is to say their rent and other accommodation costs, they are entitled to rely on the beneficence of others. Another way of looking at that is to recognise that because accommodation is so expensive as an element in living costs, it is reasonable to expect the parties to pay for the rest of the living costs themselves and perhaps rely on usual traditions and practice for housing.

Two matters appear to us to be important in attempting to assess the competing arguments in this appeal. The first is that the cost of housing varies enormously around the United Kingdom. If parties were required to show that they would have adequate accommodation available to them from their own resources the answer to an Entry Clearance application would be different if the parties were thought to be going to attempt to live in central London from the answer if they were thought to be going to attempt to live in a part of the country where housing is much cheaper. It does not seem to us that that can have been intended. Further, and this is Mr. Chaudhary’s point, there is no doubt at all that the wording in sub-para (iv) is different from that found in sub-para (v).

It seems to us that what the rules require is, broadly speaking, as follows. In order to meet the maintenance requirements the parties need to show that a certain amount of money will be available to them from their own work or resources. That certain amount of money is, broadly speaking, what would be available to a similar family on Income Support, net of housing costs.

So far as accommodation is concerned they need to show that they will have a home that they will be able to call their own however that home is provided. The accommodation must be adequate, but the rule does not require anything about the source of it. Both sub-paragraphs require certain predictions as to the future. Both therefore require evidence as to the stability of the arrangements proposed. But we do not think it would be right to import into the requirements of sub-para (iv), in relation to accommodation, a requirement that is absent from that sub-paragraph but is clearly present in sub-para (v).

It follows that, like the question of availability of sufficient income, the availability of adequate accommodation is a matter for the facts of the individual case. The mere mention of an uncle or cousin who is prepared to accommodate the parties may well not persuade either an Entry Clearance Officer or an Immigration Judge. But an Immigration Judge who is persuaded that there is a stable arrangement for accommodation which otherwise meets the requirements for adequacy and to exclusivity should not, in our view, dismiss an appeal simply on the basis that the accommodation is to be provided by another. If there is reason for him to think that the arrangements for accommodation are not stable, that of course is an entirely different matter.

In the present case the Immigration Judge was persuaded that the accommodation offer was a real and stable one. It is a continuation of the arrangement presently enjoyed by the appellant’s wife herself. There was no doubt in his mind that the offer by the owner of that accommodation to extend it to the appellant as well was an offer which was both credible and practical. The appellant therefore met the requirements of sub-paragraphs (iv) and (v) of Paragraph 281. The Immigration Judge did not err in law in so finding and we order therefore that his determination shall stand.