Tribunal decisions

The decision

Asylum and Immigration Tribunal

MK (Adequacy of maintenance – disabled sponsor) Somalia [2007] UKAIT 00028

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 6 February 2007
On 13 March 2007

Before

MISS E ARFON-JONES, DEPUTY PRESIDENT of the AIT
SENIOR IMMIGRATION JUDGE MATHER

Between

Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr P Nathan of Counsel instructed by Hersi & Co. Solicitors
For the Respondent: Miss S Leatherland, Home Office Presenting Officer

For the purpose of assessing adequacy of maintenance by reference to state benefits, the standard amount of Income Support, or Jobseeker’s Allowance is the starting point for the able bodied: KA and others (Adequacy of Maintenance) Pakistan [2006] UKAIT 00065 applied.

Where a sponsor has disabilities it should be assumed that enhanced benefits, such as a higher rate of Income Support, or Disability Living Allowance, have been awarded out of necessity and are not available to support dependants coming from abroad.

DETERMINATION AND REASONS

1. The appellant is a citizen of Somalia, born on 12 July 2004. He applied from Ethiopia to the respondent for entry clearance to the United Kingdom as a spouse.

2. His wife is his sponsor. She has been recognised as a refugee by the United Kingdom. She is deaf and dumb and lives in the United Kingdom with her sister, SG. The sponsor’s sister is a British citizen, having come here as a refugee. The sponsor arrived in August 2000 with other siblings, including her brother MG who is also deaf and dumb. SG cares for both the appellant and her brother. According to the statement made by SG for the Immigration Judge’ s hearing, the appellant, who is living in Djibouti, came to the notice of the sponsor in 2003 after MG travelled there. The appellant was a childhood friend of the sponsor’s family. It is said that when the sponsor came to live in the UK, she had been disappointed that the appellant did not accompany them. After his visit, MG brought back photographs, which he showed the sponsor, who became obsessed by them. The family eventually agreed that the appellant could marry the sponsor, provided he first travelled to Ethiopia and spoke to the sponsor’s mother. Despite some reluctance, her mother agreed to the wedding.

3. After the wedding, the appellant applied for entry clearance to enable him to come to the United Kingdom as ‘the spouse of a person settled here’. That application was refused on 7 December 2005. The appellant appealed.

4. The relevant immigration rule is Paragraph 281 of HC 395. So far as relevant it reads:-
281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse … of a person present and settled in the United Kingdom … are that:
(i) (a) the applicant is married to … a person present and settled in the United Kingdom … or
(b…; and

(iii) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and

(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and

(vi) ….

5. In a determination, promulgated on 24 October 2006, Immigration Judge Kelsey accepted that the marriage was genuine and subsisting. He also accepted that there would be adequate accommodation available for the appellant, without recourse to public funds.

6. The Immigration Judge was not satisfied that the appellant and sponsor could adequately maintain and support themselves without any additional recourse to public funds, the sponsor living entirely on benefits at the date of decision. The Immigration Judge heard argument, based on an old Immigration Appeal Tribunal case, Uvovo 00/TH/01450, to the effect that as the sponsor was already receiving income which was at a higher level than the amount of job seekers allowance paid to a married couple the appellant and sponsor would be able to maintain and support themselves without any additional recourse to public funds. He did not accept that argument because the appellant’s income is derived from income support, plus an allowance because of her disabilities. He recognised that Uvovo dealt with income (by which he meant earned income) which was not a large amount but which was higher than the income support level for a married couple. He said this case was different. In his words:

“It stands to reason, it seems to me, that a single person in receipt of certain benefits has those benefits assessed on the basis that she is a single person and needs that amount of money for her situation”.

He went on to say that, unless the appellant had a separate income the appellant and sponsor would, as a married couple, be entitled to reassessment and therefore higher benefits than the sponsor receives now. He also said that there must be an exception to the decision in Uvovo for a person who has additional benefits for medical reasons. He did not accept that the principle in Uvovo applied to the facts in this particular appeal. He also said that if, as the sponsor had said, they wished to make an application for separate accommodation, that would give rise to further assessments being made and an inevitable increase in the award of public funds.

7. The grounds in support of the application for review attack those findings, making a number of different points. First, it is suggested that the Immigration Judge erred in law by speculating what the position might be if, at some future point, the couple applied for separate accommodation. Second, it was asserted that the Immigration Judge had erred in failing to apply Uvovo, saying that the principles had been restated in KA and others (Adequacy of Maintenance) Pakistan [2006] UKAIT 00065. Third (but Mr Nathan did not proceed with this) it was argued that the Immigration Judge had failed to take into account evidence that the sponsor lived frugally and regularly sent money abroad to the appellant.

8. In addition to those specific grounds, a number of generalised points were made. First, that the disability benefit which the sponsor received was not ring fenced, in other words it could be spent as she chose. Second, there was evidence that the appellant would be the sponsor’s carer. It was also said that there had been no direct evidence, or any evidence, from which it might be inferred that the Disability Living Allowance was actually spent by the sponsor on her disability and therefore that it would not be available for the couple. Finally, the grounds argued that the couple would not be entitled to reassessment and higher benefits because the appellant would not be entitled to apply for at least six months. (There was no evidence to support that last assertion). The grounds say the Immigration Judge applied the wrong test and should merely have asked what income was available to the couple, as at the date of decision, and whether it would be adequate.

9. Mr Nathan’s first argument was that the Immigration Judge’s arithmetic was wrong, and such a fundamental error amounted to an error of law. He said the usual Job Seekers Allowance for a single person, aged twenty five or over, was £57.45 per week but, because of her disability, the appellant received an enhanced figure of £70.00. In addition, she received the carer’s element of Disability Living Allowance at £16.50 per week, and the mobility aspect of Disability Living Allowance at £16.50 per week, that made a total weekly figure of £103.00. He said this should be compared with the normal job seekers allowance for couples of £90.10. He argued that, put that way, it is clear that the sponsor received more than was necessary to maintain a couple. He argued that the extra amount required to maintain the appellant (as assessed by the government) is £90.10 minus £57.45 being £32.65. He said that, if the amount is calculated in that way, then the appellant and the sponsor have sufficient funds to enable the appellant to be maintained without any further recourse to public funds.

10. Although it was not referred to by the Immigration Judge, the then current reported case on this issue was KA. The headnote says:-

“The requirement of adequacy is objective. The level of income and other benefits that will be available if the family were drawing income support remains the yardstick.”

11. The first thing we needed to decide was whether, when looking at the sponsor’s income the Immigration Judge should only have considered the basic income support level, or whether it was appropriate to consider the whole of the sponsor’s benefits. The latter would be considered on the basis that the benefits are paid to her as being necessary. Mr Nathan argued that the Disability Living Allowance of £33 was available to the sponsor to spend as she wished. He said that, at present, the sponsor’s sister is her carer, but he was unable to demonstrate that the £16.50, paid for help with the sponsor’s care, was handed to her sister. Unless it was, it is reasonable to assume that the sponsor used it for other expenses arising from her disability. If so, it would not be available to spend on the appellant, even if he took over as carer. At the date of decision, the proposal was that the appellant would go to live in the house occupied by the sponsor and her sister and brother. Her sister and brother did not have anywhere else to go.

12. KA, and before it Uvovo, compare a low earning sponsor’s income with income support levels. In this case we are asked to regard the enhanced benefits received by the sponsor in the same way as earnings, with the Disability Living Allowance almost in the form of a bonus which the sponsor could spend in any way she chose.

13. The government does not provide “bonuses” to the recipients of benefits. The £33.00 Disability Living Allowance is paid to the sponsor because she is perceived as having greater needs for funds than an able bodied person. We do not accept that KA was intended to be authority for the proposition that Disability Living Allowance is an extra amount of money which a person may or may not need and which, together with the enhanced income support, would put the sponsor in the position that she had more funds than the joint income support level which is the minimum level for an able bodied couple

14. At paragraph 7 of KA the Tribunal said:-

“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. The 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 will 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 will 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 …. have held that the basic task for an appellant attempting to show that their 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 where there is a disabled person in the family… There have been one or two cases which have indicated that a frugal lifestyle can be taken into account in deciding whether maintenance will be “adequate”, in our view those cases should not be followed. In particular we doubt whether it will ever be right to say that children can be maintained “adequately” at less than the level which will be available to a family on income support, merely because one of their parents asserts that the family will live frugally. The purpose of the requirement for 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.”

15. That extract fortifies our view that where there is reference in the authorities to income support, that should be taken to include any enhanced income support and other benefits arising, for example, out of any disability. Such enhanced benefit is provided by the state because it is needed. A level of income below that enhanced level, would not be adequate for such an individual with those disabilities.

16. The minimum required by the appellant and her spouse to maintain themselves is the amount paid to the appellant plus the extra amount that would be paid to them as a couple (ie £103 + £32.65 = £135.65). In other words, the sponsor needs all that she receives and the appellant cannot adequately be maintained from the sum presently received by her.

17. If the disability living allowance could have been discounted as not necessary for the sponsor to live on, the appellant could have succeeded because the amount needed for him is £32.65, which is 35p per week less than the Disability Living Allowance.

18. Disability Living Allowance is there to help towards necessary care and necessary extra mobility expenses arising from the disability. It is awarded after the completion of a complex form and an assessment, often including a medical assessment. Even if the sponsor did not use all of it (and it is only £33.00 per week) it has not been demonstrated that she does not have a need for it. For the reasons adumbrated in KA it is inappropriate to disregard that benefit even if the sponsor was claiming to live frugally and not to use it.

19. The Immigration Judge made no error of law in finding that the appellant cannot be maintained in the United Kingdom without recourse to public funds.

20. Having made that decision we do not need to go into the more problematic area of whether the appellant would, on arrival, be entitled to benefits. Nor do we need to decide whether Rule 6A of HC 395 means that any prospective increase in benefits payable to the sponsor would prevent the appellant from establishing that he could be maintained without recourse to public funds. As Mr Nathan said, it may be that the meaning of the last clause of paragraph 6A has not yet been litigated. This was not the opportunity to do so.

21. The Immigration Judge made no material error of law in his assessment of the maintenance requirements of the Immigration Rules.

22. The original decision shall stand –

The appeal is dismissed.

Signed Date: 25 July 2013

Senior Immigration Judge Mather