Abubakar v Entry Clearance Officer (Sannaa) [2012] EWCA Civ 377

Case No C5/2011/1940[2012] EWCA Civ 377
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(Immigration and Asylum Chamber)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 March 2012
Before
LORD JUSTICE CARNWATHLORD JUSTICE DAVISSIR STEPHEN SEDLEY
Between
Ms Hawa Ahmed AbubakarAppellantEntry Clearance Officer (SANNAA)Respondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Robert Williams (instructed by Hersi and Co.) for AppellantMiss Deok Joo Rhee (instructed by Treasury Solicitors) for RespondentHearing Hearing dates : 22 February 2012
Judgment

Introduction

[1]This appeal raises questions as to how rule 317(iva) of the Immigration Rules (HC 395) is to be interpreted and applied in the aftermath of the decision of the Supreme Court in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48.[2]As formulated by the appellant, the principal issue is this. Is the maintenance requirement of this sub-rule satisfied if, without more, third party financial support is of an amount sufficient adequately to maintain an applicant for entry clearance? The appellant argues that it is. The respondent, on the other hand, argues that, for the purposes of the sub-rule, regard must be had to the cumulative net income, available from the sponsor as well as from the third party, with a view to assessing whether this total would adequately maintain both the sponsor (and his dependants) and the applicant.[3]The Entry Clearance Officer had refused the appellant’s application for entrance clearance by decision dated 18th August 2009. There was an appeal. After a hearing in the First Tier Tribunal, Immigration Judge Morris by determination promulgated on 2nd July 2010 accepted the argument advanced on behalf of the respondent; and, after making findings as to the cumulative net income available, dismissed the appellant’s appeal. A further appeal was dismissed by Designated Immigration Judge Woodcraft sitting in the Upper Tribunal by determination promulgated on 26th April 2011.[4]The appellant now appeals, by way of second-stage appeal, to this court. Permission to appeal has been granted by Maurice Kay LJ.

Facts

[5]The background facts are these.[6]The appellant was born on the 22nd February 1944. She is a citizen of Somalia. She is a widow. Her son, Abdullatif Abu Mohamed, had come to the United Kingdom in 1993. He became a British Citizen in 2004 and is settled in the United Kingdom. He is the appellant’s sponsor for entry into the United Kingdom. The appellant also has two daughters in the United Kingdom.[7]The appellant had lived apart from her children for many years. She herself had fled from Somalia and latterly had lived in a Somali community in Yemen, with support from the local community as well as regular financial assistance in the form of monthly remittances from her son (the sponsor). The sponsor had eventually been able to “track her down” (as the Immigration Judge put it); and he has also since visited her.[8]In due course, application for her entry into the United Kingdom, by reference to rule 317, was made. It was rejected by the Entry Clearance Officer. He did so on the basis that he was not satisfied that she met all the requirements of rule 317. It was indicated, among other things, that she had failed to show that she was wholly or mainly financially dependent on her sponsor; nor had it been shown that “you can adequately maintain yourself in the UK without additional recourse to public funds.”[9]At that stage no suggestion of the availability of third-party financial support had been made.[10]In the Grounds of Appeal from that decision of the Entry Clearance Officer, the sponsor among other things said this:
“I am the primary person responsible for my Mother’s care….It is my duty to attend to my Mother in her old age as it was my duty to maintain her before that. In the UK my Mother would live with me for the remainder of her life and spend time with her daughter-in-law and grandchildren.”
It was also explained that the sponsor was the tenant of a three bedroomed house, living there with his wife and his two young children; and there was sufficient accommodation there for the appellant.[11]Very shortly before the hearing before Immigration Judge Morris a witness statement of Mr Shmunye dated 14th June 2010 was served. He apparently is a nephew of the appellant, also a British citizen and settled in the UK. He stated that he was a full-time bus-driver, a single man living alone, and he claimed to have a net after tax monthly income of £1,600. He exhibited pay slips and other documents. He said that he considered it his duty to help his aunt and was willing to provide financial support to be used to maintain her so that there would be no recourse to public funds. He stated: “I can comfortably afford to give Mrs Abubakar £65.45p per week” (that being the 2010/2011 weekly income support rate). It seems likely that this proposal of support from Mr Shmunye was something of an afterthought, in case the sponsor’s own means were assessed as inadequate.[12]No adjournment was requested on behalf of the respondent in the light of this late evidence and the hearing proceeded. The sponsor, one of the daughters of the appellant and Mr Shmunye all gave oral evidence.[13]It is important to note that the respondent made two concessions at the hearing, duly recorded in the Immigration Judge’s findings; first, that there was sufficient evidence to show that the appellant was financially wholly or mainly dependent on the sponsor; second, that she could be accommodated adequately without recourse to public funds in accommodation which the sponsor owned or occupied exclusively. Thus the only remaining issue was whether the appellant could satisfy the requirement of rule 317(iva).[14]The Immigration Judge, in her determination promulgated on 2nd July 2010, directed herself that the proper test of adequacy was by reference to the then applicable income support rates (taking the date of the decision of the Entry Clearance Officer as the relevant date). She assessed the evidence relating to the sponsor’s earnings. The Judge accepted that the sponsor earned around £260 per week as a driver. She assessed his monthly earnings as £1,126.66 to which could be added £143.86 per month in respect of Child Benefit. She was, however, not prepared to accept the sponsor’s evidence that he had further significant income from a second job as a driver. She found his monthly rent to be £455 and monthly Council Tax to be £52 at the relevant date.[15]Reviewing the figures, the Immigration Judge found that if the sponsor and his dependants were wholly reliant on income support (and allowing also a notional £64.30 per week by way of notional income support for the appellant, the figure applicable at the time of the Entry Clearance Officer’s decision) he and his family, with the appellant, would, in those circumstances, be entitled to £1,202.37 per month; whereas on his actual monthly earnings (and allowing for child benefit) his total disposable income was £763.52: a shortfall of £438.85. The Immigration Judge’s conclusion in paragraph 14 of the determination was to this effect:
“It is evident from the above that the Sponsor’s income falls short of the Income Support Levels by £438.85. I have therefore taken into account the third party support offered by Mr Shmunye which can properly be taken into account. He gave evidence that he was prepared to give between £65.00 - £70.00 per week to assist the Appellant. Working on the basis of £70.00 x 52 divided by 12, the third party’s contribution would amount to a maximum of £303.33 per month which still leaves a large shortfall. Furthermore, for the reasons set out in paragraph 12(iii) above, I find that the Sponsor’s monthly income is probably less than £1,126.66.”
[16]She went on to reject a submission by reference to Article 8 and accordingly dismissed the appeal.

The judgment of the Upper Tribunal

[17]On the appeal (with leave) to the Upper Tribunal the Article 8 submission was not pursued further. But reliance continued to be placed on the support offered by Mr Shmunye, which taken on its own exceeded the amount payable, at the date of the decision, by way of weekly income support for an individual; and it was said that there thus would be no additional recourse to public funds. It was said that the Immigration Judge had been wrong to aggregate the income requirements of the whole family unit – that is the sponsor (with dependants) and appellant – as opposed to assessing those of the appellant on her own. Challenge was also made as to the Immigration Judge’s decision on the facts that the sponsor had no second source of income. The Designated Immigration Judge indicated that he would first need to decide whether there was a material error of law in the determination under appeal before remaking the decision; if there was not the decision would stand.[18]The central findings of the Designated Immigration Judge, in his determination promulgated on 26th April 2011, with regard to the argument advanced on behalf of the appellant (to the effect that the appellant would have her own source of income from Mr Shmunye and that the financial situation of the sponsor and his dependants was thus irrelevant) are these:
“29. I find that is to artificially create a distinction between the Sponsor and his family on the one hand and the Appellant on the other. The basis of the Appellant’s application for entry clearance and the acceptance that the Appellant meets the remaining provisions of paragraph 317 is on the basis that the Appellant will be living with the Sponsor as part of the Sponsor’s family. They will not be living in isolation from each other. The financial difficulties of the Sponsor will affect the Appellant. She will not be insulated from that even if the third party pays the money in cash directly to her bypassing the Sponsor and his family and even if she were to pay over the (very small) balance remaining after deduction of what would otherwise be the income support level. To suggest otherwise is in my view to negate the basis of the application under paragraph 317. What is being isolated in this case is one requirement of paragraph 317 when what is important is that the Appellant meets the requirements of the paragraph as a whole. 30. What is agreed on behalf of the Appellant is that the decision in Mahad answers some questions in relation to financial provision for applicants for entry clearance that is that they can rely on third party support but by the law of unforeseen consequences throws up further questions which now have been addressed of which this case is one example. This case is said to raise the issue of whether the words without additional recourse to public funds apply to the Appellant only (and any dependants of the Appellant which is not relevant in this case) or whether it can be said to apply to the family unit. 31. Under the pre-Mahad law the issue would not have arisen because third party support was not permissible and either the Sponsor would have adequate funds after the entry into the United Kingdom of the Appellant or he would not. The addition of a third party into the consideration of adequacy of maintenance it is contended raises a new issue: whether if a third party financially supports an Appellant directly that is sufficient. 32. In my view that is not sufficient because it unnaturally isolates the Appellant from the family in which she is residing and undermines the basis of her application under paragraph 317 which is that the Appellant has a Sponsor and that the Sponsor will sponsor the Appellant. The Sponsor cannot do that if he and his family are living below the income support level. What happens is that the mischief which was addressed by KA re-occurs. The considerations raised by the Tribunal in KA (see paragraph 19 above) go to the fundamental issue of whether maintenance is or is not adequate. The mere provision of monies to the Appellant by a third party do not remedy that. The effect will still be that the family with which the Appellant is residing will be living below the income support level. That situation will be unsustainable and would inevitably lead to a further application for public funds which would not be permitted. The Appellant’s argument in this case while an ingenious one is not in accordance with the decision of the Court of Appeal in French.”
[19]The Designated Immigration Judge thus concluded that the Immigration Judge had correctly directed her mind to what the position actually was in terms of the overall income which the family had once the appellant joined them and whether that income would be adequate; and that, even with the third party support, it would not be. He thus dismissed the appeal.[20]It may be noted that this gives rise, factually speaking, to a rather anomalous situation. On the Immigration Judge’s findings, the net actual monthly income of the sponsor fell below that of income support levels. Yet the sponsor apparently was not claiming additional benefits (or working family tax or child tax credits) if he was entitled to them – presumably because his stated position was and remained that he did indeed have a second significant source of earned income, causing him to overtop the income support level.

The Rules

[21]Rule 317 (in the form in which it stood at the relevant time) provides as follows: “317. 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; or (b) father or grandfather who is a widower aged 65 years or over; or (c) parents or grandparents travelling together of whom at least one is aged 65 or over; or (d) a parent or grandparent aged 65 years or over who has entered into a second relationship of marriage or civil partnership but cannot look to the spouse, civil partner or children of that second relationship for financial support; and where the person settled in the United Kingdom is able and willing to maintain the parent or grandparent and any spouse or civil partner or child of the second relationship who would be admissible as a dependant; (e) a parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; or(ii) is joining or accompanying a person who is present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and(iv) can, and will be, accommodated adequately, together with any dependants, without recourse to public funds, in accommodation which the sponsor owns a occupies exclusively; and (iva) can, and will be, maintained adequately together with any dependants, without recourse to public funds; and(v) has no other close relatives in his own country to whom he could turn to for financial support; and(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.” (a) mother or grandmother who is a widow aged 65 years or over; or (b) father or grandfather who is a widower aged 65 years or over; or (c) parents or grandparents travelling together of whom at least one is aged 65 or over; or (d) a parent or grandparent aged 65 years or over who has entered into a second relationship of marriage or civil partnership but cannot look to the spouse, civil partner or children of that second relationship for financial support; and where the person settled in the United Kingdom is able and willing to maintain the parent or grandparent and any spouse or civil partner or child of the second relationship who would be admissible as a dependant; (e) a parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; or[22]The wording in the relevant respects is comparable to, but not the same as, the wording in rule 281 (spouses and civil partners) and rule 297 (children): a matter discussed, in the context of considering the availability of third party support, in Mahad.[23]Also potentially significant for present purposes are the provisions of rule 6A and rule 6C of the Immigration Rules:
“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 regulation referred to in paragraph 6B) …. 6C A person (P) making an application from outside the United Kingdom will be regarded as having recourse to public funds that would be payable to P or P’s sponsor as a result of P’s presence in the United Kingdom, (including those benefits to which P or the sponsor would be entitled as a result of P’s presence in the United Kingdom under the regulations referred to in paragraph 6B).”
Rule 6A, it is to be noted, is specified to apply generally “for the purpose of these Rules”. Rule 6C applies, because the appellant was making an application from outside the United Kingdom. ….

The Submissions

[24]Both counsel appearing before us were agreed that the decision in Mahad does not directly bear on, nor was it concerned with, the issues arising in the circumstances of this case. What Mahad in effect decided – declaring the law to be otherwise than it had previously been thought to be – was that there was no bar, for the purposes of rule 281(v), rule 297(v) or rule 317(iva), from taking into account third party support in considering whether a person seeking leave to enter could be adequately maintained without recourse to public funds. In so indicating, the Supreme Court emphasised that an applicant must satisfy the Entry Clearance Officer that any third party support was indeed assured and indicated that may be difficult: see per Lord Brown at paragraph 19: per Lord Kerr at paragraph 55.[25]We were referred (as had been the Designated Immigration Judge) to the recent Court of Appeal decision in the case of French v Entry Clearance Officer (Kingston) [2011] EWCA Civ 35, which of course postdated the decision of the Supreme Court in Mahad. That was a case decided by reference to rule 281(v). There, a husband was seeking to join his wife, a British citizen, from Jamaica. Her actual income from her job as an ancillary nurse was found to be at or slightly below, after the appropriate credits and deductions, the income support figure. It was argued that inadequacy of maintenance and entitlement to income support were not identical and that the assessment of adequate maintenance should be made without reference to an extraneous bench-mark such as the income support level. It was further pointed out that a person seeking entry clearance does not have any entitlement to income support unless and until he has secured indefinite leave to remain. The Court of Appeal rejected the argument on adequacy. It decided that what the Asylum and Immigration Tribunal had previously said in KA (Pakistan) [2006] UK AIT 00065, which had itself been endorsed by the Court of Appeal in MB which formed part of AM v Entry Clearance Officer [2008] EWCA Civ 1082 at paragraphs 76-79 of the judgment, was correct and had not been disapproved or displaced by the Supreme Court in Mahad (which involved an appeal from AM). The passages from KA (Pakistan) specifically approved in MB and in French were to this effect:
“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 014500 (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 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 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 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.” In endorsing and approving these remarks in French Stanley Burnton LJ (with whom Longmore LJ and Laws LJ agreed) stated at paragraph 16 of his judgment that the amount payable by way of income support was an “appropriate and sensible benchmark” for assessing whether parties could indeed maintain themselves and their dependants adequately.[26]Miss Rhee placed reliance on the authority of French (as indeed had the Designated Immigration Judge) and its endorsement of KA (Pakistan). It is to be observed that in the case of French the sponsor’s net income was below the income support level and she was, as found, in any case financially struggling. Further it was found that the husband would not be able to obtain employment. (In contrast with the present case, however, there was no suggestion of the availability of third party support.) In such circumstances, rules 6A and 6C were not even addressed by the court: the parties could not, on the facts, and having regard to the requirement of adequacy, satisfy rule 281(v). That conclusion also is consistent, in my view, with the accepted proposition that money actually received by a sponsor as income support cannot be taken into account as money available for an applicant’s maintenance; because it is the bare minimum requirement to support the person to whom it is paid: see MK (Somalia) v Entry Clearance Officer [2007] EWCA (Civ) 1521 at paragraph 6 of the judgment of Pill LJ.[27]Mr Williams’ principal submission was that the Immigration Judge and Designated Immigration Judge had been wrong to assess the requirements of rule 317(iva) by reference to the cumulative income of the family unit as a whole. They should, he said, simply have focused on the fact that an amount in excess of the income support figure was indeed available for the appellant herself through Mr Shmunye (as, so he asserted, the Immigration Judge had accepted). On that basis, the “net deficit” arising from the calculations of Immigration Judge Morris was irrelevant.[28]Mr Williams further complained that the practical effect of the judgments below was to require the third party not only to produce sufficient to maintain adequately the appellant (using income support as the benchmark) but also to produce sufficient for the sponsor and his dependants (using income support as the benchmark). That, he submitted, was not called for by rule 317(iva), on its true construction, and did not accord with the provisions of rules 6A and 6C, which focus – as does rule 317 – on the position of the applicant concerned. Nor, he said, did it accord with the underlying purpose addressed by those provisions: namely, that such an applicant should not be a “drain on public funds” (cf per Lord Kerr at paragraphs 51 and 55 of Mahad).[29]In this regard, Mr Williams also emphasised that, in the circumstances of this particular case, there was no evidence or suggestion at the hearings below that increased benefits would be payable to the sponsor as a result of the appellant’s presence in the United Kingdom. If the sponsor’s total income was (as the Immigration Judge’s findings connote, rejecting as she did the sponsor’s evidence on this) below the income support level, then any entitlement to top up benefits would arise, submitted Mr Williams, as a result of the sponsor’s entitlement under the relevant social security legislation in his capacity as a British citizen.[30]For her part, Miss Rhee ultimately submitted that proffered third party support can never be ring-fenced (or “disaggregated”) in favour of an applicant. Alternatively, even if it could then it would only be so in an exceptional case: and this was not an exceptional case.[31]From that position, Miss Rhee submitted that, as found on the facts by the Immigration Judge, the cumulative income available was below that of the income support level, even adding in Mr Shmunye’s offered support of £70 per week. She submitted that Mr Williams’ question as posed in truth assumes what it sets out to prove: that third party funds are indeed to be disaggregated from the sponsor’s funds. She goes on further to say, as to adequacy, that the principles enunciated in KA (Pakistan), as endorsed in French, confirm, on policy grounds, that adequacy is to be measured by reference to an income support benchmark: the policy there identified is not to permit persons to come to this country to live in relative poverty, as calculated by reference to being below the income support level, even if they are prepared to do so. It follows that leave to enter here cannot be granted to the appellant: since she would (on the figures) be part of a family unit living below the income support level and so would not be maintained adequately. The Judges below were, she submits, therefore correct.

Determination

[32]The starting-point here is, of course, the true interpretation of rule 317(iva).[33]The sub-rule applies to “a person seeking indefinite leave to enter or remain in the United Kingdom” as parent, grandparent or dependent relative. But the phrasing of sub-rule (iva) (“without recourse to public funds”) is studiedly objective: it is not limited to the direct position of the applicant. Moreover, the issue of the applicant’s maintenance is neutrally phrased in the sub-rule (“can and will be maintained”). That also seems to me to be consistent with the provisions of rule 6A and rule 6C; because, under those rules, it is made clear that regard also has to be had to public funds provided to, or (as the case may be) that would be payable to, the sponsor as a result of the applicant’s presence in the UK. The language, in my view, points to a global approach in assessing whether an applicant’s presence in the UK will result in recourse to (additional) public funds.[34]Such a conclusion, moreover, in my view is at least consistent with the approach adopted by the courts under rule 281(v) and rule 297(v), albeit, admittedly, unlike rule 317(iva), those sub-rules direct attention to the maintenance of “the parties”: see MK (supra) at paragraph 23 of the judgment per Rimer LJ; paragraphs 76 to 79 of the judgment in MB (part of the Court of Appeal decision in AM (supra)) per Laws LJ. It is true that those cases did not directly involve third party support as such: but in each case the court approached the position, in assessing adequacy, by having regard to the joint resources available to the applicant and sponsor. One would not expect a different approach for rule 317(iva).[35]All this, therefore, in my view, shows that one has to assess the situation in the round. The practical reality in cases of this kind (I express no concluded view as to whether it might, exceptionally, be otherwise in some cases) is that the third party support will be routed, or accrue, if not directly then indirectly to the sponsor; the reality indeed being that there is one family unit and one family financial pot. (It may be noted in the present case that Mr Shmunye himself did not even indicate to whom the proffered support would actually be paid: and even if it was paid directly to the appellant herself that, as the Designated Immigration Judge rightly found, could not begin to be determinative, having regard to realities). Moreover, that overall approach as to the realities relating to a family unit much better fits with what is contemplated in rule 317(iii) and 317(iv). After all, rule 317(iii) is predicated on the proposition that the applicant is financially dependent on the relative present and settled in the UK (the sponsor).[36]I therefore conclude that Miss Rhee is right when she says that, in cases of third party support proffered to assist an applicant seeking entry, there is no rule of “disaggregation”- that is, ring fencing that third party support in favour of the applicant and separating that third party support from the financial position of the family unit as a whole – for which Mr Williams contended. The judges below were right so to conclude and further were right to decide in this case that a cumulative (or composite) approach was called for.[37]That, then leaves the question of whether, in those circumstances, the appellant could be adequately maintained without recourse to public funds.[38]As noted above, Mr Williams’ argument – alternative to his primary case – was that she could be. Accepting that the authorities indicate that adequacy is to be assessed against the benchmark of income support he said that adequacy of maintenance is nevertheless satisfied here. He pointed to the general statement in paragraph 8 of the decision in KA (Pakistan) to the effect that a family of British (or EU) citizens resident in this country will not have less than that level. Here, he said, the sponsor is a British citizen (in KA (Pakistan), it may be noted, the sponsor was not a British citizen and had only limited leave to remain for employment as an Imam: see paragraph 1 of the determination). Accordingly Mr Williams submitted that to the extent that the sponsor’s income – for himself and his dependants – fell below the income support level (and so would not be adequate) he would be entitled to extra benefits to enable him to reach that level. Moreover, he emphasised that additional recourse to public benefits so arising would not be “as a result of” the appellant’s entry into, or presence in, the UK: which is what rule 6A and rule 6C are directed at. Rather, he said, it would arise as a result of the sponsor’s status and entitlements as a British citizen. The argument thus goes that the sponsor (and his dependants) would be adequately maintained to the level of income support; and then, adding in Mr Shmunye’s contribution, all – both sponsor (and dependants) and appellant – would be adequately maintained without recourse to additional public funds.[39]Neither party at the hearing before us was able clearly to identify what further benefit entitlements the sponsor would assuredly have – leaving out of account the appellant’s presence in the UK – on the footing of his income being as found by the Immigration Judge. Further written representations (provided, at the request of the court, after the hearing) made the position scarcely clearer and in any case the calculations which were supplied involved various assumptions of fact.[40]But in any event I am not able to accept Mr Williams’ argument for two (related) reasons:(1) First, this point was not raised before the Immigration Judge and so necessarily she made no findings on the point. The Designated Immigration Judge did allude to the point. But he too necessarily did not have any primary findings of fact before him: indeed he alluded to the possibility of a potential further problem as to the possible effect of the third party support of Mr Shmunye in operating to reduce any benefits payable to the sponsor.(2) Second, and fundamentally, the fact remains – even accepting that the sponsor as a British citizen would be entitled, by one means or another, to benefits or credits bringing him (with his dependants) up to income support level – that the sponsor’s case at the hearing was that he had two incomes which overtopped the income support level. The Immigration Judge rejected his evidence that he had a second income. She – rightly – focused on what his actual income was as at the relevant date. The fact was that the sponsor had not claimed income support or working family tax credit or other extra benefits. Thus his means were inadequate. And, as the Designated Immigration Judge observed, it was not for the Immigration Judge to speculate as to why he had not so claimed them. Nor, I might add, can one speculate as to whether thereafter he might make such a claim: given that his whole case was (and remained on appeal) that his earnings overtopped the income support level. In this context, moreover, it is to be remembered that rule 317(iva) requires not only that the applicant can be maintained adequately without recourse to public funds but also that the applicant will be so maintained.[41]That being so, it seems to me that Mr Williams’ alternative argument must fail. On the Immigration Judge’s findings, even if Mr Shmunye’s proffered third party support is included the “family income” would still have been below the benchmark level of income support and so not “adequate”. The decision in French was, it is true, a decision on rule 281(v). But the whole approach of the Supreme Court in Mahad was that the maintenance requirements of the three rules there under consideration were, notwithstanding the textual variations, to be treated in the same way: see paragraph 21 of the judgment of Lord Brown. Mr Williams accepted that. In my view the decision in French is therefore to be taken as binding on this court as to the application of the principles enunciated in KA (Pakistan) to cases within rule 317(iva). Accordingly, applying those principles enunciated in KA (Pakistan) to the facts here, the appellant would not adequately be maintained without recourse to public funds. The consequence is that the Immigration Judge’s conclusion was justified; and the Designated Immigration Judge’s conclusion that no error of law was shown was likewise justified.[42]I would add that Miss Rhee also referred us to paragraph 17 of the decision in KA (Pakistan) which contained observationsto the effect that income support is also a “gateway” to various other benefits, including housing benefit. If, in any given case, the presence of an applicant under these rules (with or without dependants) in the UK would indeed result in additional benefits accruing then that will of course be central to the decision: such matters are directly within the reach of the rules, including rule 6A and rule 6C. But there was no such issue on this raised before the Immigration Judge. Miss Rhee told us, rather lamely, that she was “instructed” that housing or other benefits could indeed, in the present case, be increased as a result of the addition of another person to the sponsor’s household. But such a matter cannot be raised, on instructions, at this appellate stage. If to be relied on, it should have been raised before the First Tier Tribunal so that the necessary findings could be made.[43]I would also add that I should not necessarily be taken as accepting as correct Mr Williams’ assertion that the third party support from Mr Shmunye was indeed assessed as available. Mr Williams relied on the Immigration Judge’s brief reference to it as support “which can properly be taken into account”. I have doubts whether the Immigration Judge is to be taken as making a finding that such support was indeed assured. If, in this case, the “formidable hurdle” (in the words of Lord Kerr in Mahad) of so proving was to be surmounted one would have expected a rather more detailed assessment of the evidence and rather more detailed findings by the Immigration Judge on this important aspect. She was able to be brief on this because her approach was that, even if one took into account the proffered third party support, still adequate maintenance without recourse to public funds was not shown. However, I need express no concluded view on this aspect since, given the view I take of the matter as set out above, it can have no bearing on the overall outcome.

Conclusion

[44]I would, for my part, dismiss this appeal.

Sir Stephen Sedley:

[45]I agree.[46]I also agree.

Cited in 1 later judgment