Case No: C5/2010/1753
Neutral Citation Number: [2011] EWCA Civ 35
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL 
(IMMIGRATION AND ASYLUM CHAMBER)
DESIGNATED IMMIGRATION JUDGE FRENCH
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/01/2011
Before:

LORD JUSTICE LAWS
LORD JUSTICE LONGMORE
and
LORD JUSTICE STANLEY BURNTON
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Between:

	BYRON LEE FRENCH	Appellant	
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	ENTRY CLEARANCE OFFICER KINGSTON	Respondent	

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Mr Nazir Ahmed (instructed by Sultan Lloyd) for the Appellant 
Ms Marie Demetriou (instructed by the Treasury Solicitor) for the Respondent

Hearing date : 25 January 2011
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Judgment
Lord Justice Stanley Burnton : 
Introduction
1.	This is an appeal from the determination dated 6 April 2010 of Designated Immigration Judge French sitting in the Upper Tribunal (Asylum and Immigration Chamber) dismissing the appellant’s appeal from the decision of Immigration Judge Birk which in turn dismissed his appeal against the refusal by the respondent of the appellant’s application for entry clearance to come to the UK for settlement as the husband of Maxine Angela French.
2.	The appellant’s application for entry clearance was refused on the ground that he did not satisfy paragraph 281 of the Immigration Rules. The relevant parts of paragraphs 281 and 283 are as follows:
“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).”
3.	On this appeal, the appellant invites the Court to consider whether the decision of the Asylum and Immigration Tribunal in KA and others (Adequacy of Maintenance Pakistan [2006] UKAIT 00065 correctly sets out the test to be applied for the purposes of paragraph 281(v).
The procedural history
4.	The appellant is a citizen of Jamaica. In June 2008, he married Maxine French, a British citizen, in Jamaica. In February 2009 he applied for entry clearance as her spouse for the purposes of settlement in the UK. On 8 April 2009 the Entry Clearance Officer rejected his application on the grounds that he was not satisfied that the appellant and his wife intended to live together permanently or that they would be able to maintain themselves and their dependants adequately without recourse to public funds. The appellant appealed against that decision, contending that he was entitled to leave to enter both under the Immigration Rules and under Article 8 of the European Convention on Human Rights. His appeal was heard by Immigration Judge Birk, who dismissed the appeal both under the Immigration Rules and under Article 8. The Immigration Judge was satisfied that the appellant and his wife intended to live together permanently, but was not satisfied that they would be able to maintain themselves and their dependant without recourse to public funds. 
5.	The appellant sought reconsideration of the Tribunal’s decision under section 103A of the Nationality, Immigration and Asylum Act 2002. On 10 February 2010 Senior Immigration Judge Eshun ordered reconsideration with regard only to the decision under paragraph 281(v) of the Immigration Rules. She expressly did not find that the Immigration Judge had erred in rejecting the Article 8 claim. By virtue of paragraph 3 of Schedule 4 of the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010, the order for reconsideration fell to be treated as permission to appeal to the Upper Tribunal.
6.	The appeal was heard by Designated Immigration Judge French on 19 March 2010. In his determination dated 6 April 2010 he accepted that the Immigration Judge had made a material error of law, but found that the appellant had still failed to satisfy the requirement of paragraph 281(v). 
The determination under appeal
7.	Before the Designated Immigration Judge, it was agreed that the relevant time for the application of paragraph 281(v) was 8 April 2009, the date of the respondent’s decision. At that time, the appellant’s wife worked as an auxiliary nurse at Selly Oak Hospital. The Designated Immigration Judge considered that the appellant would not be able to find employment. His wife lived with her three dependent children in a council flat for which she paid a rent of £81 per week.  Designated Immigration Judge French found that her net pay was £145.92 per week, to which he added child benefit, working tax credit and child tax credit totalling £8,900 a year, making a total income of £363.47 per week. From that figure he deducted the rent of £81 per week, leaving a balance of £282.47. He then deducted his estimate of council tax liability of £25 per week (the weekly figure put forward by the appellant’s wife), resulting in a balance of £257.47. This was some £12 less than the income support benchmark figure indicated by the decision in KA Pakistan. The Designated Immigration Judge concluded that in these circumstances the appellant had not satisfied the requirement of paragraph 281(v), and he dismissed the appeal. 
The contentions of the parties
8.	On behalf of the appellant, it was submitted that the decision in KA distorts paragraph 281(v). That paragraph does not refer to or incorporate the level at which a couple are entitled to income support. Inadequate maintenance and entitlement to income support are not identical. Furthermore, persons seeking entry clearance are not entitled to income support unless and until they have secured indefinite leave to remain. At least one other benchmark is available, namely the support given by the National Asylum Support Service, which is lower than the income support level. The test required by paragraph 281(v) is an objective test, i.e. what is required for adequate maintenance is to be determined objectively, without reference to extraneous benchmarks. 
9.	It was further submitted that the Designated Immigration Judge had applied the test in KA Pakistan too inflexibly. A deficiency of only £12 per week could not reasonably be the basis of a finding that the appellant and his wife would not be able to meet their and the dependent children’s essential needs out of her income.
10.	It was also submitted that the Designated Immigration Judge had wrongly failed to take into account the fact that the appellant’s wife was contributing to a savings scheme, to which she paid £117.84 per month.
11.	For the respondent, it was submitted:
(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 [2008] EWCA Civ 1082.
(iii)	The Designated Immigration Judge had correctly applied KA Pakistan.
Discussion
12.	What the Tribunal said in KA Pakistan was this:
“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 [2004] 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 [2002] 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.”
13.	Subsequently, one of the cases that came before the Court of Appeal in AM Ethiopia was the appeal of MB. Laws LJ said:
“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.
14.	Laws LJ then set out paragraphs 6, 7 and 8 of the decision in KA Pakistan and continued:
“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.”
15.	Laws LJ’s approval, indeed adoption, of the relevant reasoning of the Tribunal in KA Pakistan was clearly part of the ratio decidendi of his judgment. Carnwath LJ and Pill LJ agreed with this part of his judgment and with the order he proposed.  MB’s case did not go on appeal to the Supreme Court. This part of the judgment of Laws LJ was not  criticised or indeed referred to by the Supreme Court in its judgments in AM Ethiopia and other cases: [2009] UKSC 16. In these circumstances, it is not open to this Court to reject the reasoning in KA Pakistan, even if we wished to do so.
16.	It is true that I would add, however, that in my judgment the amount payable by way of income support can be accepted as representing the Government’s assessment of the sum required for adequate maintenance. For the reasons given in KA Pakistan, and adopted in AM Ethiopia, it is an appropriate and sensible benchmark for assessing whether parties can indeed maintain themselves and their dependants adequately.
17.	In the present case it was not suggested that the appellant had or would have if granted leave to enter any earnings or income of his own. He would be dependent on the earnings of his wife. Her net income was significantly, although not substantially, below the income support level. In these circumstances, the Designated Immigration Judge was entitled to find that the appellant had not satisfied him that the parties could adequately maintain themselves. Moreover, there was evidence that the appellant’s wife already had difficulties maintaining herself and her children. She owed approximately £573 to Birmingham City Save Credit Union, and was paying that off at the rate of £117.84 a month. In addition, his wife was liable under a court order to make payments of £56.69 per month, an indication that she had in the past failed to meet the liability that resulted in that order. These outstanding liabilities indicated that she was already having difficulties in adequately maintaining herself and her children.
18.	For these reasons, I would dismiss this appeal.
Lord Justice Longmore:
19.	I agree.
Lord Justice Laws:
20.	I agree.