COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DESIGNATED IMMIGRATION JUDGE FRENCH
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE STANLEY BURNTON
| BYRON LEE FRENCH
|- and -
|ENTRY CLEARANCE OFFICER KINGSTON
Ms Marie Demetriou (instructed by the Treasury Solicitor) for the Respondent
Hearing date : 25 January 2011
Crown Copyright ©
Lord Justice Stanley Burnton :
"281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds;
283. Leave to enter the United Kingdom as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement is to be refused if the Immigration Officer is not satisfied that each of the requirements of paragraph 281 is met."
"Public funds" is a term defined in Rule 6, and includes most, if not all, forms of social security payments. Rule 6A is as follows:
"6A. For the purpose of these Rules, a person (P) is not to be regarded as having (or potentially having) recourse to public funds merely 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)."
The procedural history
The determination under appeal
The contentions of the parties
(i) KA Pakistan was correctly decided. It did not place an impermissible gloss on the Immigration Rules, but rather provided helpful guidance as to the objective standard envisaged by paragraph 281(v).
(ii) KA Pakistan had in any event been approved by the Court of Appeal in AM Ethiopia  EWCA Civ 1082.
(iii) The Designated Immigration Judge had correctly applied KA Pakistan.
"6. … Although it may be said that there is an element of imprecision in the relevant Immigration Rules, the requirement that the maintenance be "adequate" cannot properly be ignored. To our mind the use of that word imposes an objective standard. It is not sufficient that maintenance and accommodation be available at a standard which the parties and their family are prepared to tolerate: the maintenance and accommodation must be at a level which can properly be called adequate.
7. There is a good reason for using the levels of income support as a test. The reason is that income support is the level of income provided by the United Kingdom government to those who have no other source of income. It follows from that that the Respondent could not properly argue that a family who have as much as they would have on income support is not adequately maintained.
8. It perhaps does not necessarily follow that in order to be adequately maintained one has to have resources at least equivalent to those which would be available to a family on income support. But there are very good reasons for taking that view. A family of British (or EU) citizens resident in this country will not have less than that level. It is extremely undesirable that the Rules should be interpreted in such a way as to envisage immigrant families existing (and hence being required to exist, because social security benefits are not available to them) on resources less than those which would be available through the social security system to citizen families. To do so is to encourage the view that immigrant families need less, or can be expected to live on less, and in certain areas of the country would be prone to create whole communities living at a lower standard than even the poorest of British citizens. It is for this reason that a number of Tribunal cases, including Islam (13183), Momotaz Begum (18699), Uvovo (00 TH 01450) (which alone was the subject of reference by the Immigration Judge in this case) and RB  UKIAT 00142 have held that the basic task for Appellants attempting to show that there maintenance will be "adequate" is to show that they will have as much as they would have if they were able to claim income support. Similar considerations apply to the different benefit structure when there is a disabled person in the family, as Munibun Nisa v ECO Islamabad  UKIAT01369 shows. There have been one or two cases which have indicated that a frugal life style can be taken into account in deciding whether maintenance would be "adequate", but in our view those cases should not be followed. In particular, we doubt whether it would ever be right to say that children could be maintained "adequately" at less than the level which would be available to the family on income support, merely because one of their parents asserts that the family will live frugally. The purpose of the requirement of adequacy is to ensure that a proper standard, appropriate to a family living in a not inexpensive western society, is available to those who seek to live here.
9. The Immigration Judge erred in law in her assertion that "the Rules do not prescribe a minimum". They do: they require adequacy."
"76. The issue here is whether income support paid to MB's mother (as well as the DLA) should properly be taken into account for the purpose of Rule 297(v). I should first note that this issue is distinct from the principal question as to third party support; income support paid to a sponsor (or parent) was ruled out by concession in MK (Somalia) not because its source was a third party but because "it is assessed on the basis that it is the bare minimum required to support the person to whom it is paid" (per Pill LJ at paragraph 5).
77. Mr de Mello submits that for the purposes of the issue there is no substantial difference between income support and DLA. Both are non-contributory benefits whose amounts are fixed by regulation. Moreover one person, or family, may live more (or less) frugally than another; a family's needs and wants are relative and not absolute. The State does not dictate the manner in which the benefit is to be spent. Indeed the objective of income support has been stated as being "to encourage self-reliance by providing a system of support which, so far as possible, leaves claimants free to manage their own financial affairs" (Reform of Social Security Programme for Change vol. 2 Cmnd 9518, paragraph 2.70(4)).
78. On this issue I can do no better than cite the decision of the AIT (presided over by Mr Ockelton, Deputy President) in KA (Pakistan). In that case the sponsor (husband and father of the prospective entrants) lived very frugally. The issue for reconsideration by the AIT was (paragraph 4 of the determination) whether the Immigration Judge who first decided the appeal had failed to consider whether the Appellants would be adequately maintained on almost £100 per week less than the income support level (AIT's emphasis)."
The DLA referred to was disability living allowance.
"79. In my judgment this reasoning is entirely convincing and refutes Mr de Mello's submission on this part of the case.
80. In these circumstances, if my Lords agree, the appeal in MB should be allowed."
Lord Justice Longmore:
Lord Justice Laws: