CPC/1872/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.  My decision is that the decision of the tribunal is erroneous in point of law.  I set aside the tribunal’s decision and on the basis of my own findings of fact I substitute for the tribunal’s decision a decision that the claimant was not a person subject to immigration control and was therefore entitled to state pension credit from and including 19 September 2005.

2.  The issue in this appeal is whether the claimant has been given leave to remain in the United Kingdom “as a result of a maintenance undertaking”.  I gave leave to appeal against the tribunal’s decision deciding that issue adversely to the claimant following an oral hearing held at Bury County Court on 24 September 2007 attended by Mr John Mallon, on behalf of the claimant, and by Ms Sarah Wise on behalf of the Secretary of State.  Following my grant of leave, the appeal has been opposed in a written submission on behalf of the Secretary of State dated 6 November 2007.

3.  The claimant, a Chinese national, was born on 12 March 1921.  She entered the United Kingdom on 13 June 2004 on a multi-entry visa, at a time when she was in poor health and separated from her husband.  The claimant’s daughter, who is her appointee in these proceedings, had already settled in this country, and in August 2004 the claimant applied under Immigration Rule 317 for indefinite leave to remain as her daughter’s dependant.  Immigration Rule 317 provides:
“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 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; or
(e) 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
(f) the son, daughter, sister, brother, uncle or aunt over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; and
(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 or 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 for financial support; and
(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.”
On 31 August 2004 the claimant’s daughter signed a sponsorship undertaking containing the following paragraph:

“I hereby undertake that if the sponsored person named above is granted leave to enter or remain in the UK on a permanent basis, I shall be responsible for his/her maintenance and accommodation in the UK throughout the period of leave and any variation of it.”

4.  The claimant’s application for leave to remain under Immigration Rule 317 was refused both because she had supported herself financially and had lived with her husband when she was in China, and because at the time when her application was made the claimant’s husband was still alive.  However, following representations from her daughter’s MP, the claimant’s solicitors were advised in a letter dated 24 August 2005 that the claimant had been granted indefinite leave to remain outside the Immigration Rules.  Having set out the reasons for maintaining the original decision not to grant leave under Immigration Rule 317, the letter continued:

“However, I have further considered the case and recognise that there are particularly compelling circumstances.  In the light of this, I am satisfied that it would be appropriate to exercise discretion and exceptionally grant indefinite leave to remain outside the immigration rules.”

5.  On 13 October 2005 the claimant made a claim for state pension credit, answering “No” to the question: “Have you or your partner been sponsored to come to the United Kingdom in the last five years?”   On 9 November 2005 it was decided that the claimant had been habitually resident in the United Kingdom at the date of her claim, and on that basis the claimant was awarded state pension credit from that date.

6.  By sections 115(1) and (3) of the Immigration Act 1999, a person subject to immigration control is not entitled to certain benefits, which include state pension credit, and by section 115(9) a person who is not a national of an EAA state is a person subject to immigration control if the person:

“has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking”

Section 115(10) provides:

““Maintenance undertaking”, in relation to any person, means a written undertaking given by another person in pursuance of the immigration rules to be responsible for that person’s maintenance and accommodation.”

Under regulation 2 and paragraph 2 of Schedule 2 to the Social Security (Immigration and Asylum Regulations) 2000, disqualification from benefit under those provisions ends five years after residence in the UK commenced, or the sponsorship undertaking was signed, whichever is the later.

7.  On 11 May 2006 a decision maker was notified of the existence of the claimant’s sponsorship agreement and on 6 June 2006 a decision was made revising the decision awarding state pension credit, on the ground that the decision had been made in ignorance of a material fact.  The decision maker appears to have been unaware that the application under Immigration Rule 317 had in fact been refused, and after the claimant’s daughter appealed on her behalf on 13 July 2006 the claimant’s solicitors wrote a letter asserting that the revision decision had been made in the mistaken belief that the claimant was not allowed recourse to public funds.  However, the reconsideration decision made in response to the appeal rejected that contention and accordingly the disallowance of benefit was upheld.

8.  The first hearing of the appeal was adjourned to enable the Secretary of State to consider representations and evidence submitted on behalf of the claimant, and in a further submission the Secretary of State’s representative dealt with the point concerning the refusal of the original application as follows:

“The claimant’s representative suggests that because the claimant’s leave was granted outside the Rules, then the sponsorship agreement has no effect.  I submit that this is wrong.  The decision to grant leave was based on the claimant’s application made in  August 2004 and the sponsorship undertaking was part of that application.  It is unlikely that the Home Office would have granted leave had the claimant not had a sponsor who was prepared to support her.

The (claimant’s) representative suggests that

i  the claimant is not a sponsored immigrant as her application and subsequent appeals were refused.

The claimant applied for leave on the basis that her daughter would support her in the UK.  The basis of the application did not change.  She could not be granted leave within the Immigration Rules because she did not meet the criteria, however, granting outside the Rules would not mean that she was to be treated more favourably than a person who met the required criteria.  The Home Office sent the sponsorship form to the DWP, which shows that it was accepted as a valid undertaking.

ii.  The claimant is not subject to immigration control because her leave was granted outside the Rules

The fact that the leave was granted outside the Rules has no relevance.  ‘Outside the Rules’ does not mean ‘not subject to immigration control’.  It means that the Rules do not cover the circumstances under which leave has been granted.”

  9.  The tribunal, consisting of a legally qualified panel member, upheld that submission.  The chairman held that: “Clearly in granting permission the Immigration Service relied heavily on the fact that the daughter was put forward as the claimant’s sponsor and had signed a sponsorship agreement”.  After rejecting the claimant’s argument that she should not be treated as being disentitled to public funds in the absence of any express stipulation to that effect, the Statement of Reasons continues:

“In the opinion of the tribunal, it would not be possible to interpret the rules, or consider the omission from the home office correspondence of any specific referral to public funds, as in some way dislodging, overruling or making invalid, the meaning or existence of the sponsorship undertaking.  In answer to the question posed by the appellant’s representative at the haring as to “why assume that the claimant is not entitled to public funds” must be that she is a sponsored person, the sponsor remains alive, the agreement has not expired, and the signing of the agreement is intended to convey a willingness and ability on the part of the sponsor to support both financially and by way of accommodation., the sponsored person without recourse to public funds.  In addition s. 115(9)(c) of the Immigration and Asylum Act 1999 precludes her from entitlement to certain benefit (including pension credit) given that her permission to remain in the UK is as a result of a maintenance undertaking and the fact that she is subject to immigration control.”

10.  Ms. Wise accepted at the hearing of the application for leave to appeal that leave should be granted in view of the tribunal’s failure to deal adequately with the issue of  whether leave to remain had been given to the claimant “as a result of” her daughter’s maintenance undertaking.  Although the Secretary of State has accepted in the written observations on the appeal that there is nothing in the documents to show what weight the Immigration and Nationality Directorate did in fact give the maintenance undertaking in deciding to give the claimant leave to remain outside the Immigration Rules, the Secretary of State’s representative nevertheless submitted that:

“…it was open to the tribunal to hold as it did in the light of the sponsorship agreement that leave had been granted in keeping with it.  In CIS/3508/2001 it was held to be sufficient for the sponsorship agreement to be a relevant factor in granting leave.  I submit that the tribunal had to determine this issue on the balance of probabilities on the material available to him.  He was entitled to hold that the sponsorship undertaking was at least a relevant factor in the decision to grant leave to remain.  It was relevant that the process had begun with an application for leave which had been backed by a sponsorship undertaking.”

11.  The claimant was not given leave to remain subject to a condition under section 33(1) of the Immigration Act 1971 that she did not have recourse to public funds, and the only issue is therefore whether she is a person subject to immigration control under section 115(9) of the Immigration Act 1999 because she was given leave to remain as a result of a maintenance undertaking.  Although it is a matter for the discretion of the Secretary of State whether to ask for a sponsorship undertaking-see Ahmed v Secretary of State [2005] EWCA Civ 535 per Rix LJ at para. 2-, I respectfully agree with deputy Commissioner Wikeley in CIS/1697/2004 (paras. 42 and 43) that an undertaking given in furtherance of an application made under the immigration rules is given “in pursuance of the immigration rules” for the purposes of section 115(10) of the Immigration Act 1999.  In Shah v Secretary of State for Work and Pensions [2002] EWCA Civ 285 (reported as R(IS) 2/02) the Court of Appeal held that a maintenance undertaking should be regarded as remaining in force notwithstanding that indefinite leave to remain had lapsed as a result of the claimant’s departure from the UK.  In my judgment there is no reason not to take a similar approach in a case where the application in respect of which the undertaking was given was in fact refused, and to treat a maintenance undertaking once given as remaining in force despite the refusal of the application in respect of which it was given.

12.  I am therefore satisfied that it was open to the decision maker to find that leave to remain was given to the claimant as a result of the maintenance undertaking given by her daughter in connection with her application under Immigration Rule 317, provided that the evidence established the necessary causal connection between the giving of the undertaking and the grant of leave to remain.  Although the tribunal found that: “…the Immigration Service relied heavily on the fact that the daughter was put forward as the claimant’s sponsor and had signed a sponsorship agreement”, the Secretary of State now accepts that that finding went too far.  In deciding to grant the claimant indefinite leave to remain outside the Immigration Rules, the Immigration and Nationality Directorate no doubt had regard to the claimant’s very advanced age, her poor state of health and her living conditions in China.  The circumstances of the claimant’s case might have been considered so compelling that she would have been granted leave to remain even in the absence a maintenance undertaking, or on the other hand it may be that the decision was more finely balanced and leave to remain would not have been granted in the absence of the sponsorship agreement.  At the oral hearing of the application for leave to appeal, I suggested that further inquiries should be made to find out what factors had been influential in the decision giving the claimant leave to remain, but no further information has been forthcoming, and in my view on the present state of the evidence it is not possible to say with any confidence what part the maintenance undertaking in fact played in the Immigration and Nationality Directorate’s decision.

13.  It is therefore necessary to consider the Secretary of State’s submission that the tribunal’s decision can be upheld on the basis that the process which led to the eventual grant of leave to remain began with an application which was in fact supported by a maintenance undertaking.  In CIS/3508/2001 the same issue as in this case arose in a case in which the claimant was granted indefinite leave to remain under Immigration Rule 318, under which leave to remain has to be refused if any of the conditions in Rule 317 (i) to (v) are not met.  Mr Commissioner Jacobs considered a number of possible causal relationships between the giving of a maintenance undertaking and a decision to grant a claimant leave to enter or remain in the United Kingdom and concluded that leave to enter or remain was given “as a result of a maintenance undertaking” if the existence of the undertaking was a factor in the decision to grant leave.  The Commissioner quoted (at para. 23) Home Office guidance given to case workers and a Home Office comment on the guidance, as follows:

“Where the applicant is over the age of 65 detailed inquiries will not be necessary.  However, the sponsor should still be requested to complete a RON 112 (sponsorship declaration form).

The Home Office added this comment to the extracts from the guidance:

“the main factor in the grant of ILR was the fact that she was over 65 but some weight would have been given to the sponsorship declaration.””

On the basis that the Home Office had dealt with the claimant’s case in accordance with that guidance, the Commissioner held that leave to remain had been given in that case “as a result of the maintenance undertaking”. 
 
14.  I do not accept the Secretary of State’s submission that this case can be dealt with in the same way as CIS/3508/2001.  In order to satisfy paragraphs (iii) and (iv) of Immigration Rule 317, the claimant in that case had to show that she was financially wholly or mainly dependent on a relative present and settled in the United Kingdom, and that she could and would be maintained and accommodated adequately without recourse to public funds in accommodation owned or occupied exclusively by his sponsor.  The claimant’s son had given a sponsorship undertaking to the effect that if the claimant was granted leave to enter or remain in the UK, he would be responsible for the claimant’s maintenance and accommodation, and that the claimant would reside at a specified address.  Although the claimant might have been able to show that the conditions in paragraphs (iii) and (iv) of Immigration Rule 317 would be satisfied without a sponsorship declaration, in the light of the evidence in that case concerning Home Office practice the obvious inference was that the giving of a maintenance undertaking by the claimant’s son was a factor in the decision to grant the claimant leave to remain in the United Kingdom.

15.  It would have been open to the legislature to provide that a person was to be treated as subject to immigration control in every case where a maintenance undertaking has been given in support of an application for leave to enter or remain in the United Kingdom, but section 115(9) of the Asylum and Immigration Act 1999 requires a causal connection to be established between the grant of leave and the giving of the undertaking in order for benefit to be refused on that ground.  In those cases where the grant of leave to remain depends on a claimant satisfying conditions as to the provision of maintenance and accommodation by a relative, the fact that a maintenance undertaking has been given may readily justify an inference that leave to enter or remain was given as a result of the maintenance undertaking.  However, the giving of a maintenance undertaking may not justify such an inference in cases where the decision to grant leave does not depend on such conditions being met and, as with every issue of causation, the question of whether section 115(9) of the 1999 Act applies so as to disentitle the claimant from benefit will depend on the facts of the individual case.

16. In CIS/1607/2004 the deputy Commissioner accepted a submission that the burden of proof lies on the Secretary of State to show that a claimant falls within the scope of an exclusion from entitlement, so that in that case it was for the Secretary of State to show that the claimant was “a person subject to immigration control”, and therefore not entitled to income support-see paras. 18-20.  The deputy Commissioner referred to the observations of Baroness Hale of Richmond in Kerr v Department for Social Development [2004] UKHL 23; [2004] 1 WLR 1372 with regard to burden of proof in inquisitorial jurisdictions, but in fact dealt with the case on a ‘burden of proof’ basis.

17.  Although I do not in any way dissent from that approach, I prefer to approach the matter in the way outlined by Baroness Hale in Kerr.  She held (at paras. 52 and 53):

“What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part.  The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met.  The claimant is the one who generally can and must supply that information.  But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.

If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof.  The first question will be whether each partner in the process has played their part.  If there is still ignorance about a relevant matter then generally it should be determined against the one who has not done all they reasonably could to discover it.  As Mr Commissioner Henty put it in decision CIS/5321/1998: “a claimant must be to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn.”  The same should apply to information which the department can reasonably be expected to discover for itself.”

18.  It seems to me that in this case the responsibility for obtaining the information necessary to decide what part the sponsorship undertaking played in the decision to grant the claimant leave to remain lay squarely with the DWP, rather than with the claimant.  Those representing the claimant no doubt made all manner of representations on her behalf to the Immigration and Nationality Directorate, but in the absence of anything like a reasoned decision letter they could hardly be expected to know which considerations had in fact weighed with the decision maker in granting the claimant leave to remain.  If the claimant was required to prove entitlement to benefit, she would have to prove a negative by showing that the maintenance agreement given by her daughter was not a factor in the decision to grant her leave to remain outside the Immigration Rules.  A claimant in a case such as this will seldom have access to the information necessary to show what factors a decision maker has taken into account in deciding to grant leave to enter or remain, and in many cases the practical result of such an approach would therefore be to make it impossible to apply the causative test prescribed by section 115(9) of the Immigration and Asylum Act 1999.

19.  I recognise the difficulties that that approach may produce for departmental decision makers.  Whatever the position regarding the Secretary of State may be in strict constitutional theory, the Secretary of State for Work and Pensions is not the same as the Home Secretary, and it may be that the Home Office is reluctant to state reasons for granting leave to remain outside the immigration rules for fear of building up a body of precedent.  However, in CIS/3508/2001 there was some evidence produced by the DWP of the approach taken by the Home Office to applications under Immigration Rule 318, whereas in this case there is no indication of any attempt by the DWP to establish the weight given to a sponsorship undertaking in granting leave to remain outside the immigration rules either generally or in this particular case.  Applying the approach of Baroness Hale, I consider that in this case the DWP have not “played their part” in the investigative process, and that the issue of whether section 115(9) of the Immigration and Asylum Act 1999 applies to the claimant must therefore be decided against the DWP and in favour of the claimant.

20.  The tribunal erred in law in failing to give proper consideration to section 115(9) of the Immigration and Asylum Act 1999 and their decision must therefore be set aside.  For the reasons I have given, my substituted decision is as set out in paragraph 1.      

	(signed on the original)	E A L Bano
		Commissioner

		22 July 2008