DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal by the Appellant.

The decision of the Bexleyheath First-tier Tribunal dated 1 July 2014 under file reference SC168/12/00601 does not involve any error on a point of law. The First-tier Tribunal’s decision stands.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The Upper Tribunal’s decision in outline

1. I dismiss the Appellant’s appeal to the Upper Tribunal. The First-tier Tribunal’s decision involves no error on a point of law. Its decision therefore stands.

The legal issue arising on this appeal

2. This appeal concerns one aspect of the complex interaction between the grant of indefinite leave to remain under immigration law and entitlement (or not) to an income-related benefit under social security law. The underlying question is whether or not the Appellant was at the material time a “person subject to immigration control” as that term is both defined by legislation and understood by reference to the case law (see further R(PC) 1/09 and CSPC/379/2009).

3. In outline, the Appellant had originally entered and remained in the U.K. as a visitor under a sponsorship agreement. A subsequent application for indefinite leave to remain was refused by the Home Office (or rather strictly by what was then the United Kingdom Border Agency (UKBA)). The Appellant appealed to the First-tier Tribunal (Immigration and Asylum Chamber) (from now on in this decision referred to as “the IAC Tribunal”). The IAC Tribunal allowed her appeal both under the Immigration Rules and under Article 8 human rights grounds. The Appellant then claimed state pension credit. This claim was refused by the Department for Work and Pensions (DWP) on the basis that she was still residing in the UK under the terms of the sponsorship agreement. The question for the First-tier Tribunal (Social Entitlement Chamber) (from now on “the SEC Tribunal”) was whether section 115 of the Immigration and Asylum Act 1999 applied to her.

The statutory bar in section 115

4. Section 115(1) and (3) of the Immigration and Asylum Act 1999 (as amended by section 4(2) of the State Pension Credit Act 2002) provide that a “person subject to immigration control” is not entitled to state pension credit.

5. Section 115(9) of the Immigration and Asylum Act 1999 provides the necessary definition (emphasis added):

‘(9) “A person subject to immigration control” means a person who is not a national of an EEA State and who—

(a) requires leave to enter or remain in the United Kingdom but does not have it;

(b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds;

(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or

(d) has leave to enter or remain in the United Kingdom only as a result of paragraph 17 of Schedule 4.’

6. The expression “maintenance undertaking” is defined by section 115(10) of the same Act, and further explained by the case law, but its meaning is not in dispute in this appeal.

The immigration background to this appeal

7. The essential facts of the case are also agreed. The Appellant (who was born in 1941) is an Indian citizen. She had been visiting her family in the U.K. since 2003, originally sponsored by her son-in-law (but he died in 2005). She had been living in the U.K. with her daughter, by now a British citizen, since October 2007. Since February 2008 the Appellant had been totally reliant for her maintenance on her daughter, who had entered into a fresh sponsorship undertaking on 1 September 2009. The next day the Appellant applied to the Home Office for indefinite leave to remain under Paragraph 317 of the Immigration Rules as a parent of a person present and settled in the U.K. The Home Office refused that application in December 2009 and the Appellant appealed to the IAC Tribunal.

The decision of the First-tier Tribunal (Immigration and Asylum Chamber)

8. The IAC Tribunal (Immigration Judge P J Scott) heard the appeal on 12 April 2009 (ref. IA/03117/2010). A copy of its full six-page Determination and Reasons was before the subsequent SEC Tribunal. The IAC Tribunal’s actual decision, as set out at the end of its reasons, was expressed in these terms:

“DECISION

I allow this Appeal under the Immigration Rules.

I allow this Appeal on Human Rights Grounds.”

9. The Home Office subsequently granted the Appellant indefinite leave to remain in the U.K. on 22 June 2010.

The claim for state pension credit

10. On 7 November 2010 the Appellant claimed state pension credit with effect from 9 August 2010, stating that she knew her claim could only be backdated for 3 months. On 22 January 2011 a DWP decision-maker decided she was not entitled to state pension credit. Following an application for that decision to be revised, on 22 December 2011 another decision-maker confirmed the Appellant was not entitled to pension credit for five years from the date the sponsorship undertaking had been signed in 2009, i.e. the period during which she was not to have recourse to public funds. The “five year rule” applies by virtue of regulation 2 and paragraph 3 of Part 1 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendment Regulations 2000 (SI 2000/636).

11. The Appellant appealed to the SEC Tribunal, supported by Plumstead Law Centre. The grounds of appeal, in summary, were that the effect of the IAC Tribunal’s decision was to supersede the earlier sponsorship undertaking and that she had full recourse to public funds following the grant of indefinite leave to remain.

The decision of the First-tier Tribunal (Social Entitlement Chamber)

12. After a series of adjournments for further submissions on legal issues, the SEC Tribunal heard the pension credit appeal on 1 July 2014. The delays meant that the appeal had become almost of historic interest only, as the DWP accepted that the sponsorship undertaking had no effect as from 1 September 2014 for the purposes of section 115.

13. The SEC Tribunal (District Tribunal Judge Collopy) dismissed the appeal, finding that the Appellant had no entitlement to state pension credit until 1 September 2014. Her core reasoning was at paragraph 10 of the statement of reasons:

‘I have considered this matter very carefully. I have noted throughout Judge Scott’s judgment he makes a number of references to the sponsorship agreement including at paragraph 11 of the judgment, page 35 of the appeal papers, “… she had completed a Sponsorship Declaration in support of her mother’s application and confirmed that willingness to continue that sponsorship.” At paragraph 22 Judge Scott states, “I am satisfied that the Appellant can be maintained adequately in the United Kingdom without recourse of public funds.” ILR is then granted under the Immigration Rules at paragraph 24 of the judgment. Judge Scott then goes on to grant ILR on the Article 8 grounds. In his Decision at the end of the judgment the granting of ILR is listed first followed by the Human Rights grounds.’

14. Technically the final sentence of that paragraph should have read “In his Decision at the end of the judgment the allowing of the appeal under the Immigration Rules is listed first followed by the Human Rights grounds”, but nothing turns on that, especially given the SEC Tribunal’s conclusion to the same effect at paragraph 12.

The proceedings before the Upper Tribunal

15. Mr C. Hagi, the Appellant’s representative, argued that the SEC Tribunal had misinterpreted the legal effect of the IAC Tribunal’s decision. First, he argued that the IAC Tribunal had allowed the Appellant’s immigration appeal on twin grounds, each of which could stand alone, and the sponsorship undertaking was irrelevant to the success of the appeal on human rights grounds. Second, if the order in which the IAC Tribunal decided issues was relevant, Judge Scott had reached a decision on the human rights grounds (at paragraph 13) before he made the ruling under the Immigration Rules (at paragraph 24). Third, the residence permit of 22 June 2010 did not state on its face “no recourse to public funds”, which would have been the case if granted solely under the Immigration Rules. Fourth, Mr Hagi relied on the decision of Mr Commissioner Bano in R(PC) 1/09, and sought to distinguish the decision of Upper Tribunal May QC in unreported case CSPC/379/2009.

16. Mrs J Douglas, for the Secretary of State, opposed the appeal to the Upper Tribunal. In summary she argued that the SEC Tribunal was right to conclude that the Appellant remained subject to the sponsorship undertaking following the grant of indefinite leave to remain. She contended that the circumstances of the present case were analogous to those in CSPC/379/2009 and that R(PC) 1/09 should be distinguished.

The Upper Tribunal’s analysis

17. I can deal with Mr Hagi’s second point straightaway, which is based on a misreading of the IAC Tribunal’s decision. The SEC Tribunal was perfectly entitled to conclude that the IAC Tribunal had allowed the immigration appeal first under the Immigration Rules and then secondly on human rights grounds. Judge Scott’s reference to the latter at paragraph 13 of his decision was simply summarising the submissions made by the Appellant’s representative on the appeal. The only fair reading of the decision as a whole is that the appeal was allowed under the Immigration Rules and in particular Paragraphs 317 and 318 (paragraphs 15-24) before turning at the end to the human rights grounds (paragraphs 25-28).

18. Mr Hagi’s other three points may conveniently be taken together. They require careful consideration of the Appellant’s immigration status at all material times.

19. At the outset the Appellant was lawfully in the U.K. on a visitor’s visa. She then applied to vary that leave by seeking to remain indefinitely (under Paragraphs 317 and 318) as the parent of a person settled in the UK. Her visitor’s leave was extended while that application and appeal were under consideration. She exercised her right of appeal to the IAC Tribunal against the Home Office’s adverse decision under the then extent version of section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002 (i.e. against a “refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain”). The version of section 84(1) then in force specified the various grounds on which an appeal under section 82 could be brought. These included ground (a) (“that the decision is not in accordance with immigration rules”) and ground (g) (“that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights”).

20. There are important differences between the effect in law of a SEC Tribunal decision and an IAC Tribunal decision respectively on the Secretary of State’s underlying decision. The legal position as regards the latter is explained in these terms by Macdonald (Immigration Law and Practice in the United Kingdom, eds I.A. Macdonald QC and R. Toal, 9^th edition, 2014):

“The tribunal has no power to quash the decision against which an appeal is brought, but the effect of a decision to allow an appeal is that the decision maker may no longer rely on the decision appealed against. If the decision was a response to an application for leave to enter or remain, then the application remains outstanding and, if the decision is held to be not in accordance with the law, a lawful decision is yet to be made” (para. 20.5, p.1768).

21. So what then was the basis and effect of the IAC Tribunal’s decision in the present case? Under section 86(3)(a) of the Nationality, Immigration and Asylum Act 2002, the IAC Tribunal “must allow the appeal in so far as it thinks that (a) a decision against which the appeal is brought  … was not in accordance with the law (including immigration rules)”. Plainly Judge Scott found that the Appellant met the conditions under Paragraph 317 of the Immigration Rules and so the Home Office’s decision in that respect “was not in accordance with the law (including immigration rules)”. Although Paragraph 318 is phrased in terms of vesting the Secretary of State with a discretion to grant indefinite leave to remain where Paragraph 317 is met, “the principle is that ‘the decision of the Tribunal is binding on the parties and in particular the Home Secretary,’” (MacDonald, para. 20.32, p.1794, citing e.g. R (on the application of GG) v Secretary of State for the Home Department [2006] EWHC 1111 (Admin)).

22. The position is not the same where an appeal to the IAC Tribunal is allowed on human rights grounds. As MacDonald explains, “where an appeal is allowed on human rights grounds against a decision to remove the appellant, the Secretary of State has a discretion as to the period of leave to enter or remain that should be granted and is not necessarily obliged to grant indefinite leave” (at para. 20.32, p.1794, citing R (on the application of Farinloye) v Secretary of State for the Home Department [2010] EWCA Civ 203). In the present case the decision was a refusal to vary leave, rather than a decision to remove, but it is difficult to see why the principle should be any different.

23. Given that background, the Home Office’s decision in June 2010 to grant indefinite leave to remain can only sensibly be read as such a grant on the basis of Paragraph 318. This understanding is supported by inference when one considers the Secretary of State’s Humanitarian Protection and Discretionary Leave policy as then in force. This provided for discretionary leave to be granted in specified types of cases, the paradigm case being an Article 8 claim. By definition discretionary leave is outside the Immigration Rules. Furthermore, the Home Office’s stated policy was that discretionary leave would typically be granted initially for three years and a person would not be eligible to apply for indefinite leave to remain until six years had elapsed. The irresistible inference is that the June 2010 decision by the Secretary of State following the IAC Tribunal decision was taken under the Immigration Rules.

24. Mr Hagi relies on R(PC) 1/09. That case was similar in that it also involved an application by a mother for indefinite leave to remain under Paragraph 317 of the Rules, supported by her daughter’s sponsorship undertaking. As here, the application was initially refused but subsequently successful. However, this was not as the result of an IAC Tribunal’s decision. Rather, the Home Office issued a revised decision following representations, stating that Paragraph 317 was not satisfied but that “it would be appropriate to exercise discretion and exceptionally grant indefinite leave to remain outside the immigration rules” (R(PC) 1/09 at [4]). The DWP argued that the claimant was not entitled to pension credit in that case, given the maintenance undertaking. The tribunal dismissed the claimant’s appeal, agreeing with the Secretary of State that the basis of the grant of leave was the daughter’s sponsorship and that “outside the immigration rules” did not mean the mother was not a person subject to immigration control.

25. Mr Commissioner Bano identified the issue in the further appeal as being whether the claimant had indeed been given leave to remain “as a result of a maintenance undertaking” (at paragraph 2). Further, it was for the Secretary of State to show that causal connection (at paragraphs 16-18). On the evidence in that case, it could not be shown that the maintenance factor had been a factor in the decision to grant leave to remain. In addition, the causal connection could not be inferred where the decision was taken outside the immigration rules and so necessarily did not depend on conditions as to the provision of accommodation and maintenance by a relative (at paragraphs 12-15).

26. The decision in R(PC) 1/09 was distinguished by Upper Tribunal Judge May QC in CSPC/379/2009. In that case the claimant had been granted indefinite leave to remain under Paragraph 317 following a sponsorship undertaking. The DWP refused her claim for state pension credit on the basis that she had no recourse to public funds for 5 years. The first instance tribunal allowed her appeal by reference to CPC/1872/2007 (the unreported case number for R(PC) 1/09). Judge May allowed the Secretary of State’s appeal to the Upper Tribunal. The First-tier Tribunal had been wrong to rely on R(PC) 1/09, as the immigration decision in that case had been made outwith the Rules. In CSPC/379/2009, however, the Secretary of State had demonstrated that the grant of leave had been made under Paragraph 317 and thus had established a causal connection with the sponsorship undertaking (see Paragraph 317(iii)-(iva)).

27. At first sight the present appeal falls between R(PC) 1/09 and CSPC/379/2009. R(PC) 1/09 was a case where leave was granted only on human rights grounds and outside the Immigration Rules. CSPC/379/2009 was a case where leave was granted solely within the Immigration Rules with no reference to Article 8 criteria. The instant case is one in which the IAC Tribunal allowed the Appellant’s appeal both under the Immigration Rules and independently on human rights grounds. However, for the reasons set out above it is clear to me both that Judge Scott’s decision on appeal and the Home Office’s subsequent actual grant of indefinite leave to remain were premised on the sponsorship undertaking entered into by the Appellant’s daughter.

Conclusion

28. I conclude that the decision of the First-tier Tribunal involves no error of law. I therefore dismiss the appeal against the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 11).

Signed on the original Nicholas Wikeley

on 14 September 2015 Judge of the Upper Tribunal