MK (Somalia) v Entry Clearance Officer [2007] EWCA Civ 1521

[2007] EWCA Civ 1521Case No C5/2007/1153
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: OA/35200/2005]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 28 th November 2007
Before
LORD JUSTICE PILLLORD JUSTICE SEDLEYLORD JUSTICE RIMER
Between
MK (SOMALIA)AppellantENTRY CLEARANCE OFFICERRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr P Nathan (instructed by Messrs Hersi & Co) appeared for Appellant.Ms K Olley (instructed by The Treasury Solicitors) appeared for Respondent.
Judgment
[1]This is an appeal against a decision of the Asylum and Immigration Tribunal (“the Tribunal”), Miss Arfon-Jones, Deputy President, presiding, promulgated on 13 March 2007, by which it dismissed an appeal against the refusal of the entry clearance officer Addis Ababa to grant entry clearance to the United Kingdom to the appellant MK as spouse of KG. The decision was made upon a reconsideration, the Tribunal finding that the immigration judge had, in a determination of 24 October 2006, made no error of law. The Tribunal set out the basic facts. “1. The appellant is a citizen of Somalia born on 9 April 1992 . He applied from Ethiopia to the respondent for entry clearance to the United Kingdom as a spouse. “2. His wife, KG, 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 [sponsor] 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 was 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.” Having referred to the decision of the immigration judge the Tribunal stated at paragraph 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 [who is counsel for the appellant before the tribunal as he is before this court] 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.”
[2]The house is the adequate accommodation which meets the requirements of immigration rule 281(iv). No evidence was called before the Tribunal and a question may arise on the status of the findings of fact in paragraph 11, but it is not necessary to resolve that to decide the point of law now in issue. As defined by the appellant, the issue is:
“whether an individual seeking Entry Clearance is able to rely on money paid to the sponsor for the purposes of Disability Living Allowance” (“DLA”). Insofar as is material, Immigration Rule 281 of HC 395 provides: “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) … ”
[3]The only requirement not satisfied in the opinion of the Tribunal was that in paragraph (v). The question is whether DLA should be treated as available, for the purposes of 281(v), to a spouse seeking entry. DLA is paid to the sponsor under sections 72 and 73 of the Social Security Contributions and Benefits Act 1992. It is a non-means-tested benefit. There is a care component, section 72, and a mobility component, section 73. The rate at which the allowance is paid depends on the severity of the disability. Payment of the care component requires a person to be “severely disabled physically or mentally”. The sponsor is paid middle-rate care component and lower-rate mobility component. It is accepted that she may use the payments in any way she pleases to obtain the assistance she needs.

(d) :

“able to walk but is so severely disabled physically or mentally that, disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.”
[4]The Tribunal stated at paragraph 13:
“The government does not provide ‘bonuses’ to the recipients of benefits. The £33 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 the proposition that the 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.”
[5]I refer to the findings on the figures. It is accepted by Mr Nathan, for the appellant, that money received by the sponsor as income support cannot be taken into account as money available for the appellant’s maintenance. That is because it is assessed on the basis that it is the bare minimum required to support the person to whom it is paid. The sponsor received the sum of £70 a week by way of income support, though described in the Tribunal’s decision, wrongly, we are told, as jobseeker’s allowance. That included £12.55 paid as necessary because of the sponsor’s disability. No challenge is made to the Tribunal’s finding at paragraph 15. “Reference in the authorities as to income support 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.”[6]The sum required to comply with the paragraph 281(v) requirement is £102.65, if, as Mr Nathan accepts, one should add the £12.55 to the sum of £90.10 normally taken as the minimum to support a married couple. The appellant’s case is that the sum of £33 a week, paid to the sponsor by way of DLA, should be added to £70 to produce a figure which just exceeds the paragraph 281(v) requirement.[7]Having referred to the case of KA and Others (Pakistan) v SSHD [2006] UKAIT 00065, which is now accepted not to be relevant, the Tribunal stated its conclusion at paragraph 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 per week) it has not been demonstrated that she does not have a need for it.”
When refusing permission to appeal from the Tribunal a senior immigration

judge stated:

“The grounds do not show that the Tribunal erred in law. The provisions of sections 72 and 73 of the Social Security Contributions and Benefits Act 1992 do not demonstrate that the appellant’s wife’s disability living allowance is, or should be, considered as available to maintain the appellant.”
[8]Miss Olley for the respondent, having conferred with the Department of Work and Pensions, accepts that there is no control over the way DLA is spent. With the object, no doubt, or one of the objects, of avoiding the need for a policing procedure, the severely disabled person is left with a complete discretion as to how or indeed whether the money is spent. Payment for attendance is certainly a possibility but it could also be used in other ways to ameliorate the disability concerned. Taxis, for example, may be preferred in the case of a physical disability, or a sheltered holiday. In the case of the present disability the potential range of expenditure is even broader.[9]Mr Nathan submits that, since it is for the sponsor to spend DLA as she wishes, it can be treated as income for the maintenance of both of them. The sponsor is entitled to pay the sum to the appellant for assisting her. During the course of the hearing Mr Nathan advocated a middle way between the view of Collins J to which I will refer, in Jayjul Haque Ali v SSHD [2002] UKAIT 00092, and that of the Tribunal in more recent cases. If the appellant can establish, it is submitted, on a remission to the Tribunal, that the sponsor will pay the disability benefit of £33 to him, the requirement of paragraph 281(v) is satisfied. Mr Nathan accepts that such payment cannot be made a condition of entry. However, he added the sophistication in the course of the hearing that, if the sponsor did not so pay, the Secretary of State could in due course refuse the indefinite leave to remain, which normally follows after two years’ presence as a spouse (rule 287) provided the requirements in that rule, which include an equivalent of 281(v), are satisfied. Given the lapse of time, that requirement may in two years’ time be met in a number of ways, including the possibility of the appellant getting work. The rule cannot in my view be used as a means of policing the proposed payment of DLA by the sponsor to the appellant.[10]Reliance is also placed by Mr Nathan on the reference in section 73(1)(d) to “another person”, and if that other person is the appellant, her husband, he has the benefit of it as part of the family income. The provisions of section 72 also contemplate, as uses of the DLA, “attention” from another person and “supervision” by another person. Reliance is placed on the judgment of Collins J, sitting as president of the Tribunal, in Ali. At paragraph 9 Collins J stated:
“We know because we have that specific evidence the purpose for which that disability allowance is paid and more importantly the basis upon which it is paid. It is paid because it is recognised that there is a need for assistance. But it is up to the recipient to decide whether he or she will use the money for that purpose and if someone is providing the care voluntarily then that money will be available for other purposes and that is on the facts the situation here. Accordingly it is possible, provided the factual situation is appropriate, for amounts which are paid by way of a disability allowance, to be available to help to pay for another person, for example the wife or husband, without the need for any further recourse to public funds and the mere fact that it is paid to or for the benefit of the sponsor because the sponsor is perceived to need it does not of itself mean that it cannot be available in the way that it is available on the facts of this case. We should say that in the case of sums payable by way of income support, it would be very difficult, if not impossible, to establish that those sums were available because they are paid because of the need to maintain the individual otherwise he or she would not have enough to maintain him or herself.”
[11]That last proposition is of course common ground. On behalf of the respondent Miss Olley accepts that a person in receipt of DLA can use it according to her own priorities. There is no requirement that she must spend it in a particular way. The absence of control over how DLA is spent, however, does not, it is submitted, alter the fact that the person stands assessed as an individual who requires the benefit. The benefit is awarded only if the individual is assessed as needing it. It must be taken as awarded for the benefit of the person to whom it is awarded. As Sedley LJ put it in the course of argument, the sponsor is deemed by the scheme to need the money. Miss Olley also refers to the citation of the decision now appealed in a subsequent Tribunal case, VS (Sri Lanka) v SSHD [2007] UKIAT 00069.[12]The same conclusion was reached by the Tribunal in AM (Ethiopia) v SSHD [2007] UKIAT 00058. In AM the Tribunal stated at paragraph 31:
“…he [that is the immigration judge] fell into error by equating the money the sponsor sent to the appellant for his support in Ethiopia to the funds properly available in order to satisfy the maintenance requirement. Although disability living allowance is set at what may be seen as a generous level by comparison with income support, the reason for the allowance (which is not treated as the individual’s income for tax purposes) is to enable the individual to provide for his or her needs arising from the disability. Such enhanced benefits are awarded out of necessity so that the needs of the claimant can be met.”
[13]As the Tribunal said in MK (Somalia) that they referred to 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 defendant’s coming from abroad. Social Security benefits provided by the state for the support of one person only cannot be regarded as adequate to support two persons.[14]I agree with the reasoning and conclusion of the Tribunal in this case. In my judgment an analysis of the nature and purpose of DLA is required. It is benefit carefully tailored to the particular needs of a disabled person and earmarked to meet those needs and the absence of control over how DLA is spent does not convert it into a benefit which can be treated as family income or the joint income of the disabled person and her spouse. The freedom the recipient for good reason is allowed does not create an entitlement in another person to rely on the sum as maintenance for himself for the purposes of rule 281(v).[15]As to the suggestion that the sponsor may pay her DLA to the appellant for services rendered, there can be no assurance that that would happen and the undertaking or assurance could not be enforced. The objection is, however, more fundamental. Benefit designed to ameliorate and improve the lives of severely disabled people should not for present purposes be treated as the means whereby able people maintain themselves. The pressure of agreeing to spending DLA in a particular way should not be placed on a severely disabled person in circumstances such as the present.[16]For those reasons I would dismiss this appeal.[17]I am indebted to Pill LJ for his lucid account of the issue before us and how it arises. I regret, however, that my conclusion is contrary to his.[18]The single question before the court is whether the appellant is entitled in seeking entry to the United Kingdom under rule 281 to rely upon the sums paid weekly to his wife by way of disability living allowance, in order to establish that he will be able to maintain himself adequately or be adequately maintained in this country without recourse to public funds, as required by sub-paragraph (5) of the rule.[19]The short and in my opinion conclusive answer is that although DLA is calculated by reference to the claimant’s need for care and for assistance with mobility, it is unrelated to her means and once in her hands is legally hers to spend or save as she chooses. This is because sections 72 and 73 of the 1992 Act are directed to enabling but not to requiring the claimant to pay for assistance. If therefore she spends the allowance on the maintenance of her entrant spouse, and if, as is arithmetically the case here, it is to be regarded as adequate for his maintenance, he is as a matter not only of fact but of law being maintained without recourse to public funds. The money used for his upkeep is as much the sponsor’s money as a civil servant’s salary, notwithstanding the origin of both in the public purse. Equally, if the sponsor chooses to bank it or spend it on something else, she is doing nothing unlawful or improper, for it is still her money; so too if a family member or friend provides the necessary care and help without payment.[20]It follows that in my judgment the decision of Collins J in Ali [2002] UKIAT 92 was right. For present purposes, however, Mr Nathan is able to restrict his submission to a case (which is this case) where the prospective use of DLA actually corresponds with the statutory purposes of the two elements of the allowance. If, contrary to my present view, the allowance is impressed with a notional trust to use it for the statutory purposes, the appellant can meet that requirement.[21]That is all we have to decide. There was accordingly in my judgment an error of law in the determination of the first immigration judge. The AIT were wrong not so to find.[22]Other questions which potentially arise, such as what happens if, having entered under rule 281, an applicant takes paid employment outside the home do not arise today. What does seem to be of immediate relevance is that paragraph 281(v) concerns not what is going to happen -- a matter on which the ECO and in turn the AIT would need to form a prognostic view in the light of evidence -- but what is capable of happening:
“will be able to maintain themselves”
. Depending on what view Rimer LJ takes of the outcome of this appeal, I for my part would wish to hear counsel as to whether any remission is needed or whether the availability of the sponsor’s DLA for the very purpose for which it is paid, together with its adequacy for the appellant’s maintenance, concludes the outstanding issues under rule 281. Subject to this I would allow the appeal.[23]With diffidence I also respectfully disagree with the conclusion favoured by Pill LJ. I too would allow the appeal. I agree with the judgment delivered by Sedley LJ but add some short reasons of my own. The disability living allowance that has been and is being paid to the sponsor is not a means tested one. It is one for which she qualifies because of her disabilities, the allowance being intended to enable her to obtain such assistance by way of personal care and attention including any assistance with travelling that she may need. To this end she may choose to pay it to a carer to provide such assistance or for example she may use it to pay for taxis. Once in her hands, however, the payment is not impressed with any obligation that compels it to be used in any particular way. It is open to any recipient of such an allowance to spend or save it as she wishes whether or not on assistance on the way of personal care and attention. At present the sponsor’s sister is her carer, although the appellant’s case is that the proposal is that, if allowed entry to the United Kingdom, he will become her carer and the disability allowance will be paid to him or otherwise applied for his maintenance. On the figures in question, there appears to be no dispute that if the allowance can properly be so paid or applied, he and the sponsor will jointly have resources bringing them up to the minimum requisite for the purpose of satisfying rule 281(v) of the immigration rules, namely that they “will be able to maintain themselves adequately without recourse to public funds”. I add, as Collins J explained in paragraph two of his judgment in Ali v SSHD [2002] UKIAT 00092, that the last words of that sub-rule should be interpreted as meaning “without recourse to additional public funds”, and I did not understand there to be any difference between counsel as to that. I would anyway doubt whether, once the allowance is paid to the sponsor, it would continue to be regarded as being the nature of public funds. At that point it is her own absolute property to do with it what she will. I did not understand Miss Olley, for the respondent, to argue otherwise. If the appellant is allowed entry on the basis he advanced, there is no question here of the appellant and the sponsor needing to have recourse to any additional public funds for their maintenance.[24]In these circumstances I cannot see why in principle it was and is not open to the appellant to claim to be able to satisfy the requirements of rule 281(v), on the basis that the proposal is, as he asserts, that he is to come here as the sponsor’s carer and as someone whom as such the disability allowance will be paid or for whose benefit it will be applied, so as to bring their combined resources up to the minimum to which I have referred. That view does not represent any novel view of the applicable law. It reflects the essence of what Collins J said in paragraph nine of his judgment in the Ali case with which I agree. In such a case, as in any other case, the applicant for entry will of course have to make good the particular factual basis on which he claims to be able to surmount the hurdle posed by rule 281(v). The reasoning of the decision of the Tribunal now under appeal was that it had not been demonstrated that the sponsor did not have a personal need for her disability living allowance. They held that the immigration judge had made no error of law in adopting the view that it was self-evident 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.”[25]In principle I would not quarrel with that. It leaves unanswered the question: why such a single person should not, if she chooses, pay her disability living allowance to her spouse and carer? That is the case that is made by the appellant here. I too would allow the appeal.[26]This appeal having by a majority been allowed, the question arises as to what should now happen to the case. In the course of the hearing Mr Nathan for the appellant submitted that remission would be necessary. He did so on the basis that the findings of the immigration judge in his determination on 24 October 2006 were insufficient to resolve the eventual outcome. The Tribunal was concerned, as was the Tribunal on the reconsideration, with a legal point, which members of the court have addressed with the help of counsel. Moreover, submitted Mr Nathan, the findings at paragraph 11 of the Tribunal’s decision, were findings the Tribunal had no business to make. The court should not have regard to them as factual findings. The reconsideration was on the point of law and he had no opportunity to call evidence.[27]A point now arises from the judgment of Sedley LJ, who has stressed the wording of paragraph 281(v) and the expression “will be able to” in the paragraph. The argument, now adopted by Mr Nathan, is that, since all that has to be shown is that the parties “will be able” to maintain themselves, once it is accepted that DLA can be taken into account for that purpose, the case is resolved and the appeal should simply be allowed.[28]I am not able to accept that view. I have been in a minority on the question of allowing the appeal but now I have to become a party to a decision as to what should happen to the case, the appeal having been allowed. 27. 29.Collins J, in the case on which the appellant has relied, Jayjul Haque Ali v SSHD [2002] UKAIT 00092, emphasised the facts upon which his statement at his paragraph 9 was made. Collins J stated:
“Accordingly it is possible ‘provided the factual situation is appropriate.’”
And later in the same paragraph:
“It does not of itself mean that it cannot be available -- that is the DLA -- in the way that it is available on the facts of this case.”
[30]I cannot accept, particularly as the point has not been part of any skeleton arguments or even oral arguments, that the presence of the expression “will be able to” determines the matter. The Tribunal in due course will need to analyse the situation.[31]They are only able to maintain themselves, within the meaning of the paragraph, if the sponsor devotes DLA to paying the appellant. It is only on that assumption that the provisions of the paragraph are in my judgment met, particularly without the benefit of full consideration and argument on the point. Accordingly it is in my judgment necessary that the case be remitted to the IAT to make findings of fact, to consider the ruling of this court in the light of those findings, and to consider the findings in the light of the ruling of the court. Accordingly I would order remission.[32]Unusually perhaps, and with my Lord’s permission, I will explain why I would not order remission. Having heard both counsel on the question of relief in relation to an aspect of the rules that it has not been necessary to debate in dealing with the appeal itself, I am quite clear that on a straightforward reading of it and in the light of the judgment of the majority in this court, there are no further facts to be found. I would allow this appeal outright.[33]Although I was in agreement with Sedley LJ in the decision allowing the appeal, I nevertheless agree with Pill LJ that remission is required in this case. As it seems to me, the matter cannot at this stage be resolved by reference to these particular words of Rule 281(v) to which Sedley LJ refers. There needs to be a finding of fact by the Tribunal as to whether the arrangement proposed between the appellant and the sponsor will be one under which it can be concluded that the parties will all be able to maintain themselves, and, accordingly, for the reasons given by Pill LJ, I too would propose that the matter be remitted to the Tribunal.

Order

Appeal allowed; remitted to Tribunal

Cited in 5 later judgments