England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM A SOCIAL SECURITY COMMISSIONER
(MR. COMMISSIONER JACOBS)

		Royal Courts of Justice Strand London WC2 Wednesday, 20th February 2002

Wednesday, 20th February 2002

1. LORD JUSTICE PILL: Lady Justice Hale will give the first judgment.
2. LADY JUSTICE HALE: This is an appeal from a decision of Mr. Social Security Commissioner Jacobs which was communicated by a letter dated 3rd January 2001. The Commissioner himself gave permission to appeal because of the complexity of the issues. These concern the effect of an undertaking given by an immigrant's sponsor to maintain the immigrant upon the immigrant's entitlement to income support, in particular after the immigrant has left the country and later returned. The difficulty arises because of changes in policy and regulations since the relevant undertaking was given in this case. Those changes are therefore part of the background history to these proceedings.
3. The appellant is a Pakistani citizen who was born in 1921 and so is now over 80 years old. He was given leave to enter this country as a visitor in February 1993. On 6th December 1993, his nephew, Hameed Hussain Shah, signed a sponsor's undertaking to be responsible for his maintenance and accommodation. I shall return to the precise wording of that undertaking in due course.
4. On 16th June 1994, the appellant was given indefinite leave to remain. The basis of that indefinite leave to remain is contained in paragraphs 139, 56 and 52 of HC 251, the Statement of Changes in Immigration Rules which was then in force. At that date the undertaking, in itself, had no effect upon the appellant's entitlement to income support or other means-tested benefits. If he did claim such support, a sponsor who had persistently refused or neglected to maintain him would be guilty of a criminal offence under section 105 of the Social Security Administration Act 1992 and the monies paid might be recouped from the sponsor under section 106 of that Act.
5. The appellant left the United Kingdom on 1st January 1995. The Government then decided to change the policy. The Social Security Commissioner quoted from paragraphs 36 and 39 of the memorandum submitted by the Government to the Social Security Advisory Committee to explain their original draft:

"36. The Government proposes to address the situation where people who are granted indefinite leave to remain in this country on the basis that they will be maintained and accommodated by a sponsor become a charge on the benefit system. The Government does not believe that the taxpayer should be responsible for providing support which should be provided by sponsors.

...

39. The Government proposes that a barrier to claiming benefits will therefore be imposed. People covered by sponsorship agreements will henceforth be excluded from entitlement to income-related and non-contributory benefits."

6. This was originally planned to be an absolute ban until the sponsor died. It was, however, modified in response to representations from the Social Security Advisory Committee so that it would last only for five years. The Social Security Commissioner quoted the Government's response to the Committee as follows:

"46. The Government recognises that the longer the time since a sponsorship agreement was made the harder in practice it is to hold sponsors to their obligation.

47. For these reasons the Government have decided that if a sponsorship agreement breaks down after a period from five years from the date when the arrangement was made, the sponsored immigrant should then be entitled to the full range of benefits so long as they [sic] fulfil the appropriate entitlement conditions. This concession will be made regardless of whether the sponsored immigrant eventually applies for naturalisation in the UK."

7. The outcome of that policy change was the Social Security (Persons From Abroad) (Miscellaneous Amendments) Regulations 1996, made under various enabling powers of the social security legislation. Two points are relevant to these proceedings. First, regulation 8 amended the Income Support (General) Regulations 1987, regulation 21(3), to add another category to the definition of "persons from abroad". The effect was to remove their entitlement to income support. Income support is payable, roughly, where a person's income, as defined in the regulations, is less than his or her requirements as prescribed in the regulations. By schedule 7 to the 1987 regulations, paragraph 17, the requirements of certain people, including single people, who fall within the definition of "persons from abroad" are prescribed as nil.
8. The additional category of such persons introduced by regulation 8 is in regulation 21(3)(i). (There was also a paragraph (j) which does not concern us in this case.) Paragraph (i) covers a person who:

"...has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking given by another person or persons in writing in pursuance of immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation; and he has not been resident in the United Kingdom for a period of at least 5 years beginning from the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later..."

9. Secondly, regulation 12 of the amending regulations contained transitional provisions, including, in regulation 12(2), a saving for certain people who had already claimed or were in receipt of benefit. The Commissioner held that this saving did not apply to this appellant, and grounds of appeal in relation to that have not been pursued in the light of the decision of the House of Lords in M (A Minor) v. Secretary of State for Social Security [2001] 1 WLR 1453.
10. Those amendment regulations came into force or 5th February 1996. Soon after that, on 8th March 1996, the appellant returned to the United Kingdom. He was given leave to enter as a returning resident. By this time, HC 251 had been replaced by the Immigration Rules, HC 395, although they were to much the same effect. Paragraph 18 provides for the conditions under which returning residents may be given leave to enter, and I will return to those later in this judgment.
11. The appellant left again in April 1997 and returned in July 1997. On return he was again given leave to enter under paragraph 18. Shortly after that, he made the first of three claims for income support which are the subject of these proceedings. They were all rejected in June 1998, on the ground that he fell within regulation 21(3)(i) and five years had not yet elapsed. His appeal to the Social Security Appeal Tribunal was dismissed, and Mr. Social Security Commissioner Jacobs dismissed his further appeal in December 2000.
12. Meanwhile, on 30th June 1999, the Secretary of State accepted that he was now entitled to income support as five years had elapsed, in fact, since the date that leave was first given on the basis of the undertaking. So the actual claim with which we are concerned relates to the two years between the claim in July 1997 and the grant of income support on 30th June 1999. There will be many other people similarly affected, although they will be diminishing in number because of changes made to the law by the Immigration and Asylum Act 1999.
13. There are three issues on this appeal: first, whether the undertaking given by the nephew covered the later periods of leave to enter as a returning resident; second, whether that leave was granted "upon an undertaking" within the meaning of regulation 21(3)(i); and third, whether the 1996 amended regulations were validly made - that is, within the powers granted by the enabling legislation. The first two issues are to some extent inter-related in that they depend upon very similar arguments, although conceptually they are quite distinct.

1. The scope of the undertaking

14. Mr. Nicol Q.C., on behalf of the appellant, argues that the undertaking must be construed in the context of the scheme of immigration law as it existed at the time. The Immigration Act 1971, in section 3(1)(b), provides that people not otherwise entitled to enter or remain here may be given leave either to enter or to remain, either for a limited or an indefinite period. Section 3(1)(c) provides that limited but not indefinite leave may be granted subject to conditions. Section 3(3) provides that limited but not indefinite leave may be varied and that any conditions continue to apply during a period of absence from the United Kingdom. Section 3(4), which for the purpose of his argument is the crucial one, provides that a person's leave to enter or remain in the United Kingdom shall lapse on his going to a country outside the common travel area. Hence, the argument is that, when the applicant left the United Kingdom in 1995, his initial indefinite leave to remain lapsed and, when he returned in 1996, he was granted a new leave to enter; and the same happened when he left again in 1997 and returned later that year. The Social Security Commissioner accepted that argument (paragraph 40 of his decision) and rejected an argument that leave to enter as a returning resident is not a fresh grant of leave. So thus far there is common ground between the parties.
15. I now turn to the form of the undertaking. So far as it is material, it reads as follows:

"I hereby undertake that if [the appellant] ... is granted leave to enter or remain in the United Kingdom I shall be responsible for his/her maintenance and accommodation in the United Kingdom, throughout the period of that leave and any variation of it."

16. The argument is that the context of that undertaking was a particular application by the appellant for leave to remain. The reference to "if [the appellant] ... is granted leave" must therefore refer only to leave granted in response to that application. Hence, the undertaking only lasts for the period of that leave and does not apply to any subsequent leave which may be granted. If it did apply to that, the words "any variation of it" would have no purpose. That interpretation is supported by the argument that, because a failure to observe that undertaking might, in certain circumstances, result in criminal liability under section 105 of the Social Security Administration Act 1992, it should be construed as strictly as a criminal statute.
17. The Social Security Commissioner concluded in paragraph 47 of his decision:

".... the undertaking was a continuing one and it applied to leave granted under paragraph 18. The terms of the undertaking are very wide, but clear. They are not limited to a particular application for leave, to a particular grant of leave or to a particular point or period in time. On its wording, the undertaking applies afresh each time leave is granted...."

18. He also rejected the argument for a narrow approach to construction for four reasons:

(1) In his view the undertaking only had one meaning.

(2) Otherwise it would produce an absurd result. Any immigrant sponsored in this way could render an undertaking redundant by taking a day trip to Calais.

(3) There were adequate safeguards for the sponsor in sections 105 and 106.

(4) The undertaking was not in the statute and does not create criminal liability in itself.

19. In my judgment, there is no reason to adopt the narrow construction suggested. The undertaking simply says "if the appellant is given leave." It does not say "if the appellant is given leave in response to the application currently before you". Words would have to be read into it to limit it in that way, whereas no additional words are necessary to give it the meaning given it by the Social Security Commissioner. I acknowledge, of course, that this is the Secretary of State's own wording and is not prescribed by regulations. It could have been put differently, out of an abundance of caution. But that is not the same as saying that it means something different from what it does say.
20. Mr. Nicol made a considerable amount, in answer to the points made by the Commissioner in rejecting a strict approach to construction, of the analogy with an undertaking given to a court, breach of which can be enforced by penal sanctions. This analogy is not exact. Undertakings given to a court are extracted in the context of legal proceedings where other (possibly more draconian or unwelcome) remedies may otherwise be granted. This particular undertaking is in the nature of a contractual promise, freely and voluntarily offered in order to secure a benefit desired by the immigrant. I accept Miss Lieven's argument that it is unlikely in the extreme that either party to the agreement thought that it could be set at naught by the simple expedient of a short trip outside the common travel area. If it has to be construed in the light of the immigration scheme (and I accept that that is the context in which the undertaking was given), it should be construed in the light of the scheme as a whole; and part of the package involved in granting indefinite leave to remain is the favourable treatment given to people with such leave who do go outside the United Kingdom and return. The Secretary of State's purpose in obtaining the undertaking was to grant indefinite leave to remain, with all its consequences, and that included the right (albeit a qualified right) to go and return under the then paragraph 58 of HC 251.
21. For those reasons, therefore, I would reject this ground of appeal.

2. Was leave to enter given upon the undertaking?

22. The argument here is that the 1997 leave to enter was not granted "upon" the undertaking. It was granted as a returning resident. Paragraph 18 of the Immigration Rules HC 395 provides that a person seeking leave to enter as a returning resident may be admitted if the immigration officer is satisfied that the person:

"(i) had indefinite leave to enter or remain in the United Kingdom when he last left; and

(ii) has not been away from the United Kingdom for more than 2 years; and

(ii) did not receive assistance from public funds towards the cost of leaving the United Kingdom; and

(iv) now seeks admission for the purpose of settlement."

23. It is common ground now, as I have said, that these people are given fresh leave each time, but fresh undertakings are not required of them or their sponsors. Further enquiries are not made. Therefore, it is argued that the fresh grant of leave is not made "upon" the original undertaking and is not in response to that undertaking at all. Indeed, there is some suggestion, despite the use of the word "may" in paragraph 18, that there would be no power to refuse leave and no power to require a further undertaking. The Commissioner decided that he did not have to determine that point.
24. The Commissioner at paragraph 63 of his decision held that the leave to enter was "upon the undertaking" and he stated:

"That is a vague word of wide scope... In this context, it means that when leave is granted an undertaking was in operation in respect of the claimant. In those circumstances, the undertaking 'covered' the grant of leave which was 'supported' by it. It is not necessary for the officer to know of the undertaking or to rely on it when granting leave. The undertaking is a continuing one and it operates automatically each time leave is granted."

25. Mr. Nicol argues in effect that there must be an immediate connection between the undertaking and the grant of leave. How can there be such a connection when the rule does not require such an undertaking and none is looked for or looked at? All that is relevant for the purpose of the rule is the previous grant of indefinite leave to remain. There are other people who have indefinite leave to remain who can take advantage of this rule who will not have a sponsor's undertaking. There are other people with indefinite leave to remain where the circumstances may have changed since that leave was granted. He gave the example of a spouse with indefinite leave to remain who was later widowed or divorced but would still be able to take the benefit of that paragraph. Thus he says that the undertaking is irrelevant for the grant of leave to enter under paragraph 18.
26. The contrary argument is that indefinite leave to remain is a necessary precondition of the grant of leave to enter as a returning resident. The indefinite leave to remain in a case like this was granted because of the undertaking. There is, therefore, a clear cause and effect, not only between the original indefinite leave to remain but also between the indefinite leave to remain and the later grant of leave to enter as a returning resident. Thus, even if "upon" requires a cause and effect relationship, that is fulfilled here. The argument would only suffice if it meant an immediate and proximate cause and effect. The word "upon" is much wider than that.
27. In my view that is correct. The word "upon" suggests a basis or foundation, and that was clearly in existence here. The cause and effect is comparatively straightforward and I would therefore reject this ground of appeal as well.
28. Before leaving the matter, however, I should refer to a particular argument raised by Mr. Nicol. This was that the Secretary of State's position in relation to regulation 21(3)(i) was inconsistent. This was because of the later part of that regulation, defining the five-year period "beginning with the date of entry or the date upon which the undertaking was given in respect of whichever date was the later." The Secretary of State has accepted that the appellant is entitled to benefit since 1999. If the "date of entry" refers to the date in 1997 when leave to re-enter was given, then the Secretary of State has been paying benefit ultra vires since 1999 because the five years have not yet elapsed.
29. It is not entirely clear how this argument assists the appellant's case. The "date of entry" could have one of three possible meanings. The first would be that it referred back to the current leave to enter, with the consequence just stated. The second would be that it referred to an initial date of entry, a date different from that of the current leave to enter. That is the meaning contended for by the Secretary of State, with obviously beneficial consequences to the claimant, and it is the meaning accepted by the Commissioner. A third possibility is that the "leave to enter" to which reference is made at the beginning of paragraph (i) was itself the original leave to enter or the original indefinite leave to remain and thus the same as the "date of entry" referred to at the end of paragraph (i).
30. The Commissioner appears to have rejected that interpretation. Miss Lieven is not anxious to assert it; nor, for that matter, would Mr. Nicol be anxious to assert it, because there can be no doubt that that initial grant of indefinite leave to remain was "upon" the undertaking. So we are left with an argument which does not appear to assist us greatly in the interpretation of the regulation, and the answer to which is not directly before us because neither party wishes us to answer it directly. I, for my part, would not wish to express any view at all upon which of those three possible interpretations is correct. I am very conscious of the fact that in social security legislation there are so many inter-related complexities that, if one expresses a view on a point upon which one is not required to express a view, one risks doing untold harm to untold claimants, to the Secretary of State and indeed to tribunals and commissioners who are much more familiar with the complexities of the scheme than I could ever be.
31. For the reasons I have expressed, the argument does not, to my mind, assist Mr. Nicol at all. In fact the whole argument under regulation 21(3)(i) appears to be standing the purpose of paragraph 18 its head. The Secretary of State does not require further enquiries and a further undertaking because he is still relying upon the earlier one. If he were not doing so, any prudent Secretary of State would have to make fresh enquiries and seek a fresh undertaking each time a resident with indefinite leave to remain returned to this country. Life would become extremely difficult and embarrassing for all returning residents. It would be doing them no favours at all to expect more enquiries to be made at airports and other ports of entry on this basis.
32. For those reasons I reject this ground of appeal.

3. Is the regulation ultra vires?

33. Regulation 8 of the 1996 regulations must have been made, it is common ground, under section 135(1) of the Social Security Contributions and Benefits Act 1992 which reads:

"The applicable amount, in relation to any income- related benefit, shall be such amount or the aggregate of such amounts as may be prescribed in relation to that benefit."

34. Related to sub-section (1), however, is sub-section (2):

"The power to prescribe applicable amounts conferred by subsection (1) above includes the power to prescribe nil as an applicable amount."

35. One can quite see how, in regulations which concern benefits necessary for minimum subsistence, it might otherwise be difficult to justify regulations providing that certain categories of people should have no entitlement and thus be denied the safety net of state benefits altogether.
36. The argument here is that the social security legislation should be construed as a whole. It was all consolidated in 1992. By amending the prescribed requirements for sponsored immigrants, the regulations deprived sections 105 and 106 of the Social Security Administration Act 1992 of all relevant effect. If no income support is ever payable, then it cannot be a criminal offence to fail to maintain so that it does become payable. If no income support is ever payable, then none can be recouped under section 106. This is primary legislation and secondary legislation should not be used to deprive it of any effect.
37. The Commissioner put the argument this way in paragraph 138:

"The issue for me is whether the immigrant's entitlement to income support was entrenched by virtue of sections 105 and 106 so that only primary legislation could remove it."

38. The Commissioner agreed that the scheme is to be read as a whole. But he pointed out, first, that these are two different consolidation acts. One deals with entitlement to benefits and the other deals with administration. Secondly, the policy underlying both of them, and the 1996 amendments, was that the cost of maintaining sponsored immigrants should not fall upon the state. The liable relative provisions tried to recoup those benefits from liable relatives. Later amendments withheld the benefit altogether, but they were not inconsistent in policy terms. Thirdly, the 1992 provisions may have been based on the assumption that benefit would be payable, but an assumption does not give rise to entitlements, let alone to entrenched rights.
39. One might also comment that the relevant provision are not sections 105 and 106 of the Social Security Administration Act 1992, because they have plenty of purpose, quite apart from sponsored immigrants. Historically they have been used to enforce the obligations of spouses to maintain one another and obligations of parents to maintain their minor children. The argument must be that the regulations deprived section 78(6)(c) of that Act of effect. That is the provision which added immigrants' sponsors to the list of liable relatives.
40. In my view, the answer to this argument is simple. Entitlement to income support depends on section 124(1) of the Social Security Contributions and Benefits Act 1992 which sets out four conditions that must be fulfilled for the person to be entitled. Those conditions are, for relevant purposes, to be prescribed by regulations. Power to prescribe by regulations is contained in section 135. I have already quoted section 135(1) and (2). As I have already said, one could quite see why, if section 135(2) were not there, the courts might be disinclined to permit the Secretary of State to use this regulation-making power to deprive people of all entitlement to minimum subsistence. But it is there and it is clear that that is what it does. To use a scheme involving ancillary powers, not directly related to the qualifications for entitlement, to hold that the Secretary of State cannot use the regulations in a way which is clearly contemplated by the enabling powers seems to me to be taking the arguments far too far.
41. I would therefore hold that the regulations were not ultra vires and I would reject this ground as well.
42. LORD JUSTICE MUMMERY: I agree that this appeal should be dismissed for the reasons given by Lady Justice Hale. I only wish to add short comments on the two principal questions of construction.
43. First, on the construction of the undertaking, the maintenance undertaking dated 6th December 1993 was given "in pursuance of Immigration Rules". The form of the undertaking is not prescribed by the Immigration Rules. The undertaking is a voluntary conditional promise given by Mr. Hameed Shah in relation to his uncle, Mr. Mohammed Shah. The promise became unconditional and contractually binding on Mr. Hameed Shah when his uncle was granted indefinite leave to enter and remain in the United Kingdom on 16th June 1994. The duration of the undertaking depends on the application of the rules for the construction of contracts, seen, of course, in the setting of the Immigration legislation.
44. The rules of construction require one first to look at the language of the undertaking. The undertaking is expressly stated to endure "throughout the period of that leave, or any variation of it". "That leave" clearly refers to the indefinite leave to enter and remain which was granted. As the leave was granted for an indefinite period, so the linked undertaking was similarly of indefinite duration.
45. When Mr. Mohammed Shah was admitted to the United Kingdom as a returning resident in March 1996 and in July 1997, it was on the basis of the prior indefinite leave granted on 16th June 1994. On those occasions of re-entry nothing was expressly or impliedly said or done which operated to curtail the indefinite duration of the promissory undertaking given in connection with the earlier grant of indefinite leave. As Mr. Mohammed Shah relied on the indefinite leave originally granted as a basis for returning to the United Kingdom from overseas, so the Secretary of State was entitled to rely on the linked promissory undertaking. The undertaking remained contractually cemented to the original indefinite leave to re-enter. Whatever further leave was required and given to Mr. Mohammed Shah as a returning resident on subsequent occasions, the original indefinite leave to enter and remain remained an essential pre-condition for obtaining subsequent leave to enter as a returning resident under the provisions of rule 18(1) of the Immigration Rules HC395.
46. Second, concerning the construction of the regulations, the relevant regulations are the Income Support (General) Regulations 1987. My Lady has already read from the provisions of regulation 21(3), which contains definitions of the expression "person from abroad" and, in particular, the terms of the definition in regulation 21(3)(i). Mr. Mohammed Shah was a person from abroad within the meaning of regulation 21(3)(i) because he had been given leave to enter and remain in the United Kingdom. That leave was given "upon an undertaking" given by Mr. Hameed Shah on 6th December 1993. The word "upon" simply indicates, in my judgment, a temporal causal connection between the giving of the leave to enter and remain and the giving of the undertaking in connection with it. That causal connection might be direct and immediate (as it was in June 1994); it might also be indirect in order to satisfy the requirements of Immigration Rule 18(1) HC395 (as in the case of 1997).
47. I agree with my Lady's judgment on the further question raised as to payments by the Secretary of State under regulation 21(3)(i), and, like her, I expressly say that no decision is made on it. It is not an issue on this appeal.
48. I agree with the reasons given for rejecting Mr. Nicol's arguments on the ultra vires point.
49. I would, for these reasons, also dismiss the appeal.
50. LORD JUSTICE PILL: I also agree that the appeal should be dismissed. I agree with Lady Justice Hale in her conclusions on each of the three issues. I also agree with Lord Justice Mummery's stress upon the importance of a contractual approach to the undertaking which was given. The undertaking had a continuing effect, notwithstanding the temporary departures of Mr. Mohammed Aziz Shah from the United Kingdom and his subsequent re-entries. It would still have been effective, but for the statutory alleviation introduced into regulation 21(3)(i) of the Income Support (General) Regulations 1987. It had the effect of narrowing the definition of the expression "persons from abroad" in schedule 7, to whom the Secretary of State does not pay income support, as explained by Lady Justice Hale.
51. The introduction of the five-year period mentioned in the sub-paragraph followed the Government's response to the Social Security Advisory Committee Report 1996. Paragraph 47 indicates a part of the Government's response to two proposals and provided:

"For these reasons the Government have decided that if a sponsorship breaks down after a period of five years from the date when the arrangement was made, the sponsored immigrant should then be entitled to the full range of benefits so long as they [sic] fulfil the appropriate entitlement conditions. This concession will be made regardless of whether the sponsored immigrant eventually applies for naturalisation in the UK."

52. Regulation 21(3)(i), as applicable at the material time, provides:

"...'person from abroad' means a person who -

(i) has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking given by another person or persons in writing in pursuance of immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation; and he has not been resident in the United Kingdom for a period of at least 5 years beginning from the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later."

53. It is implicit in the Commissioner's reasoning, though not stated in terms in that reasoning, that, for the purposes of construing the expression "upon an undertaking" in that paragraph, the relevant entry is the most recent occasion on which leave to enter has been given. However, the Commissioner went on to hold that the five-year period referred to in the sub-paragraph begins upon the initial entry. In doing so, he referred to the "day trip in France" point which Miss Lieven has relied on to defeat the argument of Mr. Nicol Q.C. for the appellant.
54. As to the five-year period, the Commissioner concluded in paragraph 68:

"So my conclusion is that the five-year period begins to run as follows. If the claimant was given leave to enter the United Kingdom before an undertaking was given the relevant date is the date of the undertaking. If the undertaking was obtained before the claimant entered the United Kingdom the relevant date is the date of entry under paragraph 317 of the immigration rules."

55. The Secretary of State has been applying the Income Support Regulations in that sense. Income support has been paid to Mr. Mohammed Aziz Shah since June 1999; that is, the fifth anniversary of the first grant of indefinite leave to remain.
56. On behalf of the claimant, Mr. Nicol submits that the relevant date for the purpose of considering whether the entry was upon an undertaking is the most recent date of entry; that is, the date in 1997. Miss Lieven for the Secretary of State does not dissent from that view, and the case has largely been argued before the court on that basis, although an alternative view was put to counsel for the purposes of argument.
57. I should not wish to leave the case without some comment upon that construction of regulation 21(3)(i) upon which the case has been argued by counsel. Mr. Nicol has rightly, in my view, referred to a possible inconsistency in the approach of the Secretary of State accepting the view he has on the five-year period while accepting that the relevant date of entry for the purpose of the sub-paragraph is the later date. I have difficulty in accepting that the date contemplated in the second part of the sub-paragraph is different from the date contemplated in the first. Argument on the point has, for the reason I have given, been limited but it appears to me strongly arguable that the expression "the date of entry or the date on which the undertaking was given" refers to the date of "leave to enter or remain upon an undertaking" stated in the first part of the paragraph. The five-year period began, on that argument, upon the grant of indefinite leave to remain after the undertaking was given. So much the Secretary of State accepts and has operated in practice. He has not accepted, however, that the two expressions refer to the same date, but has made the admission to which I have referred.
58. In my view, it is at least arguable that the leave referred to at the beginning of the paragraph is the June 1994 leave and not the 1997 leave. Once that situation has arisen, the five-year period begins to run, and it is on that basis that income support has subsequently been paid. I refer to the point, not to decide it but on the basis that to leave it without comment may lead to further problems arising out of the inconsistency to which Mr. Nicol has drawn attention. I wish to leave open the point that the date contemplated in the whole of the paragraph is the date on which the initial leave to enter or to remain for an indefinite period was granted.
59. It is clear that different commissioners have different views on that subject. The Commissioner in the present case has referred to the view of a commissioner in a different case that one of the relevant questions is: "Had the claimant at any time been given leave to enter or to remain in the United Kingdom?" The effect of the alternative reasoning, if correct, would be that the Secretary of State was obliged to pay income support to Mr. Mohammed Aziz Shah as from June 1999. He would, on that construction, clearly be empowered to make the payments he has in fact been making.
60. Mr. Nicol has been right to argue the inconsistency. But, in my judgment, it does not help his argument. I have expressed agreement with the conclusion of Lady Justice Hale that, even taking the later date, the entry should be held to be upon the earlier undertaking. If the earlier date is the relevant date, the argument that the entry was upon the undertaking is considerably stronger.
61. For the reasons given by Lady Justice Hale and for the reasons I have given, I too would dismiss this appeal.
ORDER: Appeal dismissed; usual legal aid order for claimant's costs; leave to appeal refused. (ORDER NOT PART OF APPROVED JUDGMENT)