QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BEGUM||(CLAIMANT)|
|SOCIAL SECURITY COMMISSIONER||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS R HAYNES (instructed by Office of the Social Security Commissioner) appeared on behalf of the DEFENDANT
Crown Copyright ©
Thursday, 6th November 2003
"1. I hold [a] British passport ... and I exhibit hereto a copy of the passport pages bearing print. I have not travelled abroad since receiving the passport and there are no endorsements or visas in the passport.
2. I am the son-in-law of ZAR BEGUM of Village Golin Post Office, Bhuttian ... District Rawalpindi Pakistan.
3. Zar Begum wishes to enter the United Kingdom for a period of six months.
4. I am employed by Royal Mail at 40 Bishop Street Coventry and I exhibit hereto a letter from my employers together with my pay slips for the last three months. I have savings in Woolwich and I attach hereto two statements issued by Woolwich showing my present savings of £4,429.00.
5. I own 63 Wright Street subject to a mortgage with the Leeds & Holbeck Building Society and I exhibit hereto a letter from the Building Society confirming the mortgage repayment position.
6. I exhibit hereto a letter from Mercia Estate confirming the accommodation available at 63 Wright Street.
7. The occupants of 63 Wright Street at present are myself and my wife and our two children aged 4 and 5 years respectively.
8. If ZAR BEGUM comes to the United Kingdom I undertake that she will be maintained and accommodated without recourse to public funds and if it should be necessary to repatriate her I will bear the cost of such repatriation. If ZAR BEGUM should die in the United Kingdom I will bear the cost of her burial or cremation.
Dated this 18th day of March 1998"
That is signed by Mohammed Wahid. It is witnessed and it bears the stamp of solicitors in Coventry, from which I infer it was a declaration prepared by solicitors.
"I can confirm that the above named was given indefinite leave to enter the United Kingdom 8 May 1998 by an officer at Heathrow Airport to join her son, who is presented and settled here.
The Declaration should have been signed and sent to the Entry Clearance Officer at the British High Commission in Islamabad, to satisfy the requirements for the Visa issue. If this declaration is not signed the Visa application would be refused. Paragraph 320 of HC395 section 14 states: refusal of entry clearance should normally be refused if refusal by a sponsor of a person seeking leave to enter the United Kingdom to give, if requested to do so, an undertaking in writing to be responsible for that person's maintenance and accommodation for the period of any leave granted."
A further fax from the High Commission in Islamabad dated 20th September 2000 attached copies of the sponsorship declaration and contains the statement: "Although the declaration states a visit of six months, the application was for settlement".
"The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom are that the person:
(i) is related to a person present and settled in the United Kingdom in one of the following ways:
(a) mother or grandmother who is a widow aged 65 years or over [that appears to be the case here] ...
(iva) can, and will, be accommodated adequately, together with any dependants, without recourse course to public funds."
The undertaking given in support of the claimant's application to enter the United Kingdom appears to have been given in order to satisfy little paragraph (iva) which I just read.
"A sponsor of a person seeking leave to enter or variation of leave to enter or remain in the United Kingdom may be asked to give an undertaking in writing to be responsible for that person's maintenance and accommodation for the period of any leave granted, including any further variation."
Again, that appears to be the provision under which this sponsorship undertaking was sought in the present case.
"... has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking 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."
That provision seems to have been replaced from 3rd April 2000 by section 115 of the Immigration and Asylum Act, which provides that:
"(1) No person is entitled to ...
(e) income support ... while he is a person to whom this section applies.
(3) This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed...
(9) A person subject to immigration control means a person who is not a national of an EEA state and who ...
(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking."
Under paragraph 10 of section 115 "Maintenance undertaking" is defined as: "in relation to any person ... a written undertaking given by another person in pursuance of the immigration rules be responsible for that person's maintenance and accommodation".
"Since social security legislation contains separate provisions automatically imposing a legal liability to maintain spouses and children under the age of 16, we do not require written undertakings from the spouses or the parents of young children... Written undertakings will normally only be required from the sponsors of elderly and other dependent relatives. The declaration attached to form SET(F) should always be used for such written undertakings."
So reliance is based on that, notwithstanding my doubts as to whether that particular form was in force at this particular time.
(1) The undertaking was given with a view to enabling the claimant to obtain leave to enter the United Kingdom.
(2) The undertaking was a relatively formal document drawn up by solicitors and duly witnessed.
(3) As the Tribunal found, the application was for permanent leave to remain in the United Kingdom. There was no misunderstanding, according to the Appeal Tribunal, on that point. The sponsor knew that his mother-in-law was coming permanently, despite the mistaken reference to six months in the declaration itself. The Appeal Tribunal found that that was a pure error.
(4) It is plain that leave to enter would not have been granted if the undertaking had not been given (see, in particular, paragraphs 35, 317(i) and (iva) and 320(14) of the Immigration Rules at HC395.
"The issue before me is whether the July 1999 document is an undertaking given in pursuance of the immigration rules. I agree with Mr Williams that the Immigration Rules do not prescribe a form for the undertaking; in my judgment an undertaking will be given 'in pursuance of the Immigration Rules' if it is an undertaking to be responsible for a person's maintenance and accommodation pursuant to rule 35 of the Rules. The July 1999 document is that. It contains a declaration - which in the context is equivalent to an undertaking - that the claimant will be maintained and accommodated without recourse to public funds for the duration of her visit. It refers to 'public funds as defined in the Immigration Rules' (the Rules contain a definition of public funds, which includes income support). It is not disputed that the Home Office relied on it in granting the claimant indefinite leave to enter."
At paragraph 17 Mr Paines QC goes on:
"It is plainly desirable that such undertakings should be given on form SET(F), which contains salutary warnings about the consequences of entering into an undertaking, and it is understandable that the Directorate's instructions requires its use. However, those instructions are not part of the Immigration Rules and they do not mean that undertakings in other wording are not given pursuant to the Immigration Rules. In the present case, moreover, the declaration was in a solemn form prepared by and signed in the presence of a solicitor; it contained a reference to the Immigration Rules and its wording was not such as to leave the claimant's son in any doubt as to what he was undertaking."