ENTRY CLEARANCE OFFICER, DHAKA v SOHAIL AHMED

This is the determination of the Tribunal, to which each member of the panel has contributed.

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.

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:

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).”

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.

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.

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.

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.)

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.

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, and to look first to see whether the accommodation would be adequate, and then to see whether the income available to the Appellants for maintenance is equivalent to the amount that would be available to a similar family on income support once they have dealt with the costs of their accommodation.”

What the Tribunal in Uvovo – and the Tribunal in KA - seeks here to require focus on (and what paras 6A-C require focus on) is the actual financial position on arrival, i.e. income that is or will be available to the applicant and his sponsor upon his arrival in the UK (in the language of para 6, “as a result of [the applicant’s] presence in the UK”). Because the calculation is therefore a projection forward to what the income of the applicant and his sponsor is or will be on arrival, we shall employ the expression “projected income”.

As adequacy of accommodation was out of the picture following the earlier decision, the present hearing was concerned solely with the maintenance requirement. Expressed mathematically, the formula to be fulfilled is

Before turning to whether this formula was fulfilled in the present case, whilst we did not receive any argument on the point, in our view we need to address how paragraphs 6A to 6C apply to a case such as this. In doing so, we are mindful that, as was said in Mahad v Entry Clearance Officer [2009] UKSC 16:

“The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy.”

The first question is what does the proviso “save where” in para 6A apply to? As we read para 6A, it is saying that all that counts as recourse to public funds is increased benefit as a result of P’s presence and even that does not count if it arises as the result of the matters referred to in para 6B (which includes joint applications for tax credit of the type with which we are concerned, the relevant regulations being made under section 42 of the Tax Credits Act 2002 (“TCA”)). The alternative approach is to say that the joint entitlement cases are carved out from the general rule that only increases in benefit are caught. We can think of no sensible reason for such an interpretation, which appears to go against the structure of s115 of Immigration and Asylum Act 1999 (“IAA”) and that of TCA s42.

Para 6B then exempts claims by P (as opposed to P’s sponsor) to the specified benefits where there is joint entitlement (thus confirming the impression that IAA1999 s115 and TCA2002 s42 have, if anything, a liberalising role and that the first rather than the second of the interpretations of para 6A above is likely to be the correct one.) In principle, where para 6B applies, it appears to allow not only the joint claim at the same amount but, as regards P, a joint claim resulting in a higher amount than would previously have been paid to the sponsor alone (even though, as regards the sponsor, an increase in her entitlement under the (now) joint claim would not be permitted by para 6A if the second interpretation above were to prevail.) It would be nonsense (acting in vain) for para 6B to grant something which as regards a joint claim would – on the second interpretation - be ruled out by para 6A.

What then is the effect of para 6C? This applies only to persons making an application from outside the UK (as is the present case). The question is whether para 6C is concerned only with additional funds or whether it also bites where the level of funds remains the same, but because of the joint claim provisions – such as the tax credit one - the applicant for entry clearance will, when s/he comes to the UK, inevitably be involved in the claim and to that extent it will be “paid as a result of P’s presence in the United Kingdom”? Para 6C appears to provide a partial disapplication of para 6B, so that whereas para 6B allows increases in benefit under the provisions (even though they would otherwise have been caught by para 6A) this does not hold good in the case of applications from outside the UK. An example of a situation which would be caught by para 6C would be a spouse and child coming from abroad which would (unlike the present situation where the children are already here) lead to an increase in the amount claimed and so be precluded by para 6C. Indeed, it may be that para 6C is confined to cases where there are at present no entitlements to benefits, which may be the case so far as a hypothetical applicant is concerned in an out of country case (though not necessarily of course where there is a United Kingdom sponsor.) The explanatory notes to HC 314, which inserted paras 6A to 6C into the Rules in 2009, speak at para 7.19 of 6C concerning "anticipated entitlement to public funds".

As in Yarce, the present case requires an examination in the light of the above principles of the effect, if any, of the arrival of an applicant for entry clearance upon a sponsor’s entitlement to claim benefits and thus on the resources available. We are satisfied that as at 30 December 2010 (the date of decision), the sponsor’s income (“A” in the formula in [11]) was (employing standard rounding principles) as follows:

We are further satisfied that, as at that date, there was no reason to suppose that the sponsor’s employment was other than permanent or that her salary was not likely to continue at at least that level. While there are changes in benefit and tax credit rates from time to time, we consider that it will in general be appropriate to apply rates that were in existence at the date of decision, though the point may need to be looked at further in a case where a party contends for a different rate to apply (compatibly with section 85(5):[8] above).

Turning to the effect on the sponsor’s benefit income, if the respondent had notionally been here as at 30 December 2010, the answer is that there would have been none. Let us set this out in more detail.

If the respondent were here, the sponsor and he, as a married couple, would have been entitled to make a joint claim for tax credits. Even though the respondent would have been a “person subject to immigration control” (as defined by section 115 of the Immigration and Asylum Act 1999), the couple’s entitlement to tax credits would, so far as relevant, fall to be determined as if the respondent had not notionally been subject to such control: see Tax Credits (Immigration) Regulations 2003, SI 2003/653, reg 3(2).

We can see no reason on the facts of this case (and none has been suggested) why the amount of child tax credit should have been any different if the respondent had been in the UK. Without limitation, the “family element” within the child tax credit calculation is unaffected by whether a person is claiming as a single parent (including because their spouse is abroad) or as one of a couple.

Similarly, in relation to working tax credit, the sponsor claiming alone was entitled to have taken into account in calculating the amount of working tax credit payable to her the “lone parent element”. On a hypothetical joint claim made on 30 December 2010, the sponsor and respondent would instead have been entitled to the couple or “second adult” element. This would be so despite the respondent being a “person subject to immigration control”, as the sponsor and respondent would be responsible for a child or qualifying young person: see Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 SI 2002/2005. As the value of the lone parent element and that of the second adult element were the same, the notional arrival of the respondent at the decision date would not have made any difference to the amount of tax credits the sponsor would have continued to receive.

Nor would there have been any change in the amount of child benefit she would have continued to receive, which is determined by the number of children (or qualifying young persons) for whom a person is responsible and not by the number of adults in the family unit.

It follows that the figures in the table above would have been unaffected by the arrival of the respondent and, on the circumstances prevailing at 30 December 2010, were set fair to be provided on an assured basis (cf. Mahad (Ethiopia) v Entry Clearance Officer [2009] UKSC 16.)

On the unchallenged evidence, the sponsor had to pay £50 weekly on rent and nothing on council tax, thus the figure arrived at for “A – B” in the formula is £330.17 (i.e. £380.17-£50).

Although housing benefit and council tax benefit may require careful consideration in other cases (see the discussion in Yarce at [57] – [61]), they are not relevant in the present case, as the sponsor was not in receipt of them.

The calculation of the benefit threshold derived from figures put forward by the respondent’s solicitor was as follows (all figures for benefits are, correctly, those for 2010/11, in which the decision under appeal was taken):

This calculation in the form put forward is not without its conceptual difficulties, though they may be more theoretical than real. The system of support for families on benefit with children has largely moved on and will continue to do so. The calculations as submitted to us are sufficiently consistent with KA for present purposes, and we are satisfied that other, more contemporary, ways of approaching the calculation (such as using child tax credit figures) would not lead to a materially different outcome when considering the benefit threshold. However, while we are satisfied that the present method of carrying out the calculation is a valid one in the circumstances of this case, we are not intending to hold it out as a model or to exclude other methods of calculation which respect the KA principle while perhaps being more consistent with the reality of the benefit system as it now is or indeed with how it may evolve in the future. The aim always is to effect a comparison between the applicant’s and sponsor’s combined projected income if the applicant for entry clearance were in the UK on the one hand and, on the other, the amount required to provide the maintenance “at a level which can properly be called adequate” (KA, para 6) by reference to income support levels or, where applicable, other aspects of the benefit system which may have taken its place (i.e. the benefit threshold).

In para 17 of the decision in KA, the Tribunal alluded to the potential for other costs to fall to be taken into account because of the “passporting” effect of income support, such as the cost of prescriptions which might fall to be provided by the National Health Service and the cost of other benefits such as free school meals. In the present case, the children of the respondent and sponsor were aged 1 and 3 at the date of decision, so the latter is not applicable. No specific point about these or other costs has been raised on behalf of the ECO. Further, we note that the definition of “public funds” (see para 6 of the Immigration Rules) does not, in terms, refer to advantages to which income support might be a passport. Suffice it in the present case to say that we are satisfied that at the relevant date, the sponsor had sufficient resources to be able to maintain her family, including the respondent, using only such State resources as the Immigration Rules in force at the material time permitted to be used. Even if other factors such as prescription charges were to fall to be taken into account, the difference in the present case (around £95 per week to the good) between the sponsor’s income and what would otherwise be the benefit threshold is on any view likely to prove sufficient and no suggestion has been made otherwise by Mr Saunders.

From the above it will be clear that we are satisfied that the respondent’s projected income, net of accommodation costs, of £330.17 will be greater than the benefits threshold relevant to his case (£235.29). Accordingly we are satisfied that the respondent merits the benefit of the Immigration Rules HC395 (as amended).

The experience of Judges Storey and Lane, whose home jurisdiction this is, is that parties may be assisted by guidance as to how evidence and submissions in appeals raising these questions might be presented so as to assist the First-tier and Upper Tribunals. In an immigration appeal it is of course the party who seeks to claim the benefit of the Immigration Rules on whom the burden rests of proving, on the balance of probabilities, that the relevant requirements are met. As we observed in Yarce at [46]:

“It seems to us that, since these issues involve mixed fact and law, an appellant in an immigration appeal must be able to demonstrate to the judicial fact-finder, either that the actual financial position on arrival will be such as to make it unnecessary to rely upon 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 doing so.”

It will in general assist a First-tier Tribunal, or on appeal, the Upper Tribunal if as part of a submission a calculation is supplied which reflects the comparison summarised in [27] above. Income received and the projection for the figures which the appellant and sponsor have to be able to find should be expressed on a consistent and arithmetically accurate basis. It should not be for the Tribunal to have to do the necessary calculations to achieve this. Benefit is usually calculated on a weekly basis but at present is often paid fortnightly (generally employment support allowance and income support) or four-weekly (child benefit) while tax credits are calculated on a daily figures and paid in general weekly (child tax credit) or four-weekly (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 (as occurred in the present case, although on the facts it did not affect the result).

Information on benefit rates, including historic rates, can be obtained from a variety of sources. Those who practise in social security or who have colleagues who do will already be aware of the Welfare Benefits and Tax Credits Handbook published by Child Poverty Action Group which contains (among much other useful material) a table of such figures at the beginning and which is published annually, while a table of rates, including for past years, is available online at www.rightsnet.org.uk. It is always essential, of course, that regard is had to the benefit rates applicable at the relevant times, i.e. in entry clearance cases, the rates in force at the date of decision, but in in-country appeal cases, those in force at the date of hearing.

The calculation of the benefit threshold figure is an academic exercise, but establishing the benefits which a sponsor and applicant will actually be receiving on the applicant’s arrival is far from it. In terms of the evidence to prove receipt of income by way of social security, the most compelling evidence is likely to be proof of the receipt of funds into a person’s bank account. Most, though not all, payments are made in such a way. Payments from DWP and HMRC, so far as we are aware, are identified as such on bank statements. Notices of award, while they may have some value, are intrinsically less reliable, because of the wide ranging powers which the Secretary of State for Work and Pensions and in the non-tax credit context HMRC have to change decisions by processes of “revision” or “supersession” and because of the scope for a decision to be changed – sometimes against a person claiming benefits – on appeal, thus any given decision notice may not be the last one in the sequence. The position of tax credits is a particularly complex one in decision-making terms, which may involve the use of estimated amounts and sums paid on a provisional basis, followed by a process of reconciliation and final decision after the end of the tax year.

Finally, as for the reasons above it is necessary to establish whether, at the date of the decision under appeal, there would be any effect on the sponsor’s entitlement to benefit if he or she were to be joined by the applicant for entry clearance, it is our view that application forms for entry clearance should include questions designed to elicit the information we have described above and that ECO decisions should include a calculation utilising the heads of calculation which we have outlined. In addition, in the context of appeals submissions should, accordingly, include a legal analysis addressed to these matters.

The determination of the First-tier Tribunal having been set aside, we hereby re-make the decision as follows: