KA and Others (Adequacy of maintenance) Pakistan [2006] UKAIT 00065 (04 September 2006 ) [2006] UKAIT 00065

UKAIT
KA and Others (Adequacy of maintenance) Pakistan [2006] UKAIT 00065 (04 September 2006 )
[2006] UKAIT 00065 · 2006-09-04
[1]KA and Others (Adequacy of maintenance) Pakistan [2006] UKAIT 00065 ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 11 August 2006 Date Determination notified: 04 September 2006 Before Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Senior Immigration Judge Martin Immigration Judge McLachlan Between KA and Others APPELLANT and Entry Clearance Officer - Islamabad RESPONDENT For the Appellant: Mr S Park, instructed by Park & Co Solicitors For the Respondent: Ms O'Connor, Home Office Presenting Officer DETERMINATION AND REASONS The requirement of adequacy is objective. The level of income and other benefits that would be available if the family were drawing income support remains the yardstick. The appellants, who are all citizens of Pakistan, are the wife and four children of the Sponsor, who is an Imam and has leave to remain in the United Kingdom for employment as an Imam under paragraphs 169-177 of HC395 until 6 th January 2009. They applied for entry clearance to be with him as his spouse and children whilst he was working here. Their applications were refused on 11 th July 2005. At that date the children were aged 10, 8, 4 and 2 respectively. The Notice of Refusal is addressed to the first Appellant "and four children", but gives five case reference numbers. It is in the following terms:- "194. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse of a person with limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135 I-135 K) are that: (iii) 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 (iv) The parties will be able to maintain themselves and any dependants adequately without recourse to public funds BECAUSE You have applied with your children to join your husband in the UK. He has been in the UK for two years but you have not applied to visit before. You stated at interview that he was busy. He has stated in the supporting documents that his income is £160 a week however this is not reflected in his bank statements. He has not provided any evidence of wage slips and tax or national insurance contributions. I am not satisfied that his earnings are as you state or that he can maintain you during your stay. You stated at interview that you did not know how large your husband's house is. You stated that he lives alone. In the supporting documents your husband stated that he lives with a family and that two rooms will be made available to you. I am not satisfied that two rooms is adequate for you and your husband and four children to live. If you decide to appeal against the refusal of your application, the decision will be reviewed in conjunction with your grounds of appeal. If you have any additional documentation which addresses the reasons for refusal, you are strongly advised to submit it with your notice of appeal, as it may be possible to resolve the points at issue without the necessity for an appeal hearing. I therefore refuse your application."[2]It is clear that there are a number of infelicities in that notice. In particular it is, we understand, common ground that the appropriate paragraph of HC395 for the children is 197. What is clear, however, is that the ground of refusal is that the entry clearance officer was not satisfied that the maintenance and accommodation requirements of the immigration rules would be met.[3]An Immigration Judge allowed the Appellants' appeals in a determination sent to the parties on 7 th February 2006. Having reviewed the evidence she concluded that:
" the Sponsor lived and lives frugally and on £160 per week has been able to send £400 or so to his family per month though he has not had to pay his keep. … . It is plain that he is not paying in actuality a market rate and in fact [a third party] is subsidising the costs. I bear in mind that income support is for living expenditure and include some allowance beyond food; for furnishing, travel etc. that is minimal but is built in. The Appellants would not be living in accommodation that requires such needs to be met. That he will do so is unchallenged, as is the fact that the Sponsor has saved money despite the modest income…. In this case to notwithstanding that evidence impose a requirement that income support levels must be met to satisfy the Rules would be arbitrary and against the actual ability to maintain as evidenced. [sic] The Rules do not prescribe a minimum and I would be wrong to apply one irrespective of the facts. The Respondent will have opportunity to review this family situation should further leave be sought but on the evidence at date of hearing even though there is a deficit of about £100 compared to the income support level the Appellants did show that they could be maintained without recourse to public funds."
[4]The Respondent sought and obtained an order for reconsideration. The ground is, in summary, that the Immigration Judge failed to consider whether the Appellants would be adequately maintained on almost £100 per week less than the income support level.[5]In the course of his submissions in response to the grounds, Mr Park asserted that there are indeed in the Immigration Rules no specific requirements that the level of maintenance available to applicants be at any particular standard. He said that if the Immigration Rules had intended to impose such a standard, whether by reference to the income support levels or otherwise, they could have said so. The fact that they did not say so meant that adequacy was a matter purely for the discretion, or perhaps more properly assessment, of the Immigration Judge.[6]We do not accept that submission. 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 01450) (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 there 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] UKIAT 01369 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 the family will live frugally. The purpose of the requirement of 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.[9]The Immigration Judge erred in law in her assertion that "the Rules do not prescribe a minimum". They do: they require adequacy.[10]We proceed to consider whether the Appellants' appeals should be allowed or dismissed. Although the Immigration Judge referred to the date of the hearing, the relevant date for the purposes of the appeal is the date of the decision.[11]The evidence relating to the available accommodation and maintenance is in part clear but in part extremely vague. The Appellant works as an Imam at a mosque. The mosque itself appears to belong to the person who, in the extract from the Immigration Judge's determination which we set out above, we called the "third party". The third party also owns the house where he lives, where the Sponsor lives, and where it is proposed that the Appellants would live. The Sponsor pays the third party some £35 to £40 per week for his accommodation and "household expenses". If the Appellants come, it is said that accommodation will be available to them as well, but the cost will rise to £50 per week, still including "household expenses". The third party's statement indicates that at present the Sponsor takes his meals with the third party, and that the cost of his meals is therefore included in the "household expenses". An accountant's statement, also produced for the purposes of the appeal, states that the Sponsor buys his own food and drink. We were asked to consider the case on the basis that the third party would accommodate all the Appellants and provide them with all meals, for a cost of £10 or £15 a week in addition to that which he is currently receiving from the Sponsor.[12]The Sponsor's income from his employment is £160 per week, apparently paid in cash. The accountant's letter indicates that there will in due course be a tax liability but that as the Sponsor is regarded as self employed, for tax purposes, his liability to tax arises at the end of the tax year. We saw no evidence that the Sponsor has yet paid any tax. There is clear evidence that the Sponsor sends about £100 a week to the Appellants, and the assumption was that the Appellants used that £100 per week for their maintenance in Pakistan. The Sponsor is also able to save, and his bank account shows that, taken as an average, he has been able to save about £20 per week.[13]The source of the funds from which the Sponsor is paid appears to be the mosque. We have seen a few entries relating to a bank account belonging to the mosque, showing a balance of rather over £50,000. The evidence is that the mosque has some connection with what is called a charity, but we saw no trust deed and no indication that the charity is registered. The third party is a director or trustee of this concern, and it was suggested to us by Mr Park in submissions that, as a result, he has control over the funds in order to use them for purposes such as the support of the sponsor and the Appellants. There is, however, no evidence that any funds attributable to any charity are properly expendable for the support of the Appellants other than by way of a legal obligation to pay wages to an employee of the charity.[14]Bearing in mind the third party's declared intention to support the Sponsor's not insignificant family for recompense of only £10 or £15 per week, we enquired as to the source of the third party's funds. Mr Park simply told us that he had no information about that.[15]It is indicated in the evidence that, because of the Sponsor's standing in the community, he will be the subject of invitations to dine with members of the congregation, and that his wife and children will always be included in such invitations. Thus he will have access to food other than by the third party's benevolence.[16]So far as concerns accommodation, the Sponsor at present lives with the third party and has his own bedroom in the house. If the Appellants came the position at the date of the decision was that there would be another bedroom available; a third has since become available as the third party's adult son has left the house.[17]Miss O'Connor's submission was that, at the date of the decision, if the Sponsor and the Appellants had been eligible for income support the amount of income support payable to them would have been £253 per week. Mr Park did not dissent from that calculation. There would also, as we understand the position, have been child benefit payable at the rate of £16.50 per week for the first child and £11.05 per week for the other three children, amounting in total to £49.65 per week. Income support is also a gateway to various other benefits. The two children who were at the date of the decision of school age would have been entitled to free school dinners, and all six of the family would have been entitled to free prescriptions. It is of course difficult to estimate the value of the latter benefit in particular, but taking income support, child benefit and other matters together, it is clear that the total benefit available to the family would have had a value exceeding £300 per week in income. Income support is also a gateway to housing benefit, as a result of which a family on income support living in modest (but adequate) housing is likely to find that their rent is paid by way of housing benefit. They will also be entitled to council tax benefit and so will not have to pay council tax. The appropriate method of calculation for comparative purposes is, as explained in Uvovo , to separate maintenance from accommodation, and to look first to see whether the accommodation would be adequate, and then to see whether the income available to the Appellants for maintenance is equivalent to the amount that would be available to a similar family on income support once they had dealt with the costs of their accommodation.[18]Despite the doubts raised by the entry clearance officer, we see no reason to suppose that the accommodation would not be adequate. Whether the accommodation is really available is a matter which depends on the third party, who asserts that he will provide it at a very modest charge in his own house. Our concerns on that issue are similar to those relating to maintenance, which we shall consider shortly.[19]So far as maintenance is concerned, the figures which we gave for benefit entitlement are those net of accommodation. Looking simply at the figures, the proposal is that from his wage of £160 the Sponsor is to pay £50 for accommodation and "household expenses", leaving £110 per week for other expenses for himself, his wife and four children. That is clearly well short of the income of something over the £300 per week that they would have if they were on income support; indeed it is only a little more than the £100 per week that it apparently presently costs the Appellants to live in Pakistan. It is said, however, on the Appellants' behalf that the comparison with income support is not a fair comparison, because the charge for accommodation would include much of what income support would normally need to be spent on, that is to say, food. It is further said that any deficiency in food provided by the third party would be met by other members of the congregation's invitations to meals.[20]Although we might be prepared to accept that such invitations might from time to time be forthcoming, and we might also be prepared to accept the third party's genuine intentions, the truth of the matter is that there is nothing in this evidence which is firm enough to show us that either such invitations or the munificence of the third party will in truth be sufficient to raise the Appellants' resources to a level comparable to that which would be available to them on income support. Mr Park pointed out that their living with the third party would mean that they did not have to pay utility bills, house insurance or a television license. He said that even if food was discounted the value of those bills was approaching a £100 per week. We do not accept that submission. More particularly, bearing in mind the lack of clarity or transparency about the institution described as a charity, and the lack of any evidence at all about the source of the third party's funds, together with the absence of any legal undertaking by the third party to continue to support the Sponsor and the Appellants despite any personal difficulties he may incur (or indeed any personal dispute with the Sponsor and his family), and indeed the lack even of any legally enforceable contract of employment for the Sponsor at a firm or calculable salary, we are not prepared to find as a fact that the amount of maintenance and security offered by the third party are in any genuine sense available. There is no basis for thinking that there are resources, properly and indefinitely available to the third party, in order to supply them.[21]There is in fact, as we pointed out at the hearing, a further difficulty. Paragraph 194 is in the terms set out in the notice of refusal. It is more than arguable that that paragraph requires a spouse seeking admission to establish that adequate maintenance will be available without relying on a third party's support. The phrase for children, in paragraph 197 (iv) is that they " can and will be maintained and accommodated adequately without recourse to public funds" , but for spouses the requirement is that the parties to the marriage " will be able to maintain themselves and any dependants adequately without recourse to public funds" . We cannot suppose that the difference in wording is intended to have no effect. Clearly children could not be expected to maintain themselves; but the wording " can and will be maintained" would be perfectly appropriate for spouses if it were not intended that third party support should be excluded. The view that the wording of paragraph 194, and other similar paragraphs in the Immigration Rules, excludes third party support appears to be implicit in the decision of the Tribunal in AA [2005] UKAIT 00105 , at paragraph 26. For this reason, we should have found that the support offered by the third party could not be taken into account as assisting the first Appellant to satisfy the requirements of the Immigration Rules, even if we had found that such support were realistically available.[22]The Appellants face other difficulties, in particular, the impact of tax. Income tax is as yet entirely undetermined. As we have indicated, the Sponsor has a tax liability; and if he were to receive substantial benefits in kind from his employment (in the form of maintenance of his family and subsidy of their accommodation), as it is suggested he would, those too would presumably be taxable. It may also be that, if payments were made from the funds of the mosque (other than in satisfaction of a legal obligation to pay a salary) for the personal benefit of the Sponsor or the Appellants, whether or not through the agency of the third party, the mosque's funds might themselves be taxable to that extent or generally.[23]For all these reasons we have reached the clear view that the Appellants have failed to show that they would be maintained adequately if they were admitted to the United Kingdom. Their appeals are therefore dismissed. C M G OCKELTON DEPUTY PRESIDENT Date:

Cited in 12 later judgments

and 3 more of the most senior