Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference 947/10/02835, made on 30 November 2010 at Rochdale, did not involve the making of an error on a point of law.

Reasons for Decision

1.           Although the Secretary of State has presented this case, to both the First-tier Tribunal and the Upper Tribunal, as turning on the claimant’s right to reside, it is in fact a case about immigration control. The issue is: when does a claimant cease to be subject to a ‘no recourse to public funds condition’ following a successful appeal to the First-tier Tribunal (Immigration and Asylum Chamber)?

A.          History and background

2.           The sequence of dates is important.

3.           The claimant, who is Pakistani, came to the United Kingdom on 6 December 2007 on a 2 year visa. The purpose of her visit was to join her husband. It was a condition of her leave to enter and remain that she would not have recourse to public funds. On 18 August 2009, she applied for further leave. The Secretary of State refused her application on 22 January 2010 and the claimant exercised her right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber).

4.           On 10 May 2010, a judge of that Chamber allowed her appeal on two grounds: (i) she was a victim of domestic violence; and (ii) her removal would breach her Convention right under Article 8.

5.           On 25 June 2010, the claimant claimed income support.

6.           On 13 July 2010, the Secretary of State refused the claim. That date is important, because the First-tier Tribunal on appeal was limited to the circumstances obtaining at that time. That is the effect of section 12(8)b) of the Social Security Act 1998:

(8) In deciding an appeal under this section, an appeal tribunal-

…

(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.

7.           On 28 September 2010, the claimant’s passport was endorsed with a stamp showing indefinite leave to remain.

8.           That sequence of events raises the issue I set out in paragraph 1. Did the claimant acquire leave to remain (i) at the date of the tribunal’s decision or (ii) when her passport was stamped?

B.          social security legislation

9.           Section 115 of the Immigration and Asylum Act 1999 provides:

‘Exclusion from benefits

115.-(1) No person is entitled … to-

…

(e) income support;

…

under the Social Security Contributions and Benefits Act 1992 while he is a person to whom this section applies.

…

(3) This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed.

…

(9) “A person subject to immigration control” means a person who is not a national of an EEA State and who-

…

(b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds; …’

C.          social security caselaw

10.        In Secretary of State for Work and Pensions v IG [2008] UKUT 5 (AAC), I decided that a grant of leave to remain took effect either from the date shown in the claimant’s passport or from the date of the letter notifying her of the decision. In that case, the difference was immaterial. As I pointed out in my grant of permission in this case, that case concerned a decision by the Secretary of State; there was no appeal involved. I must, therefore, consider whether the nature of the appeal process in immigration requires a different decision in the circumstances of this case.

D.          immigration legislation

11.        Section 86(3) of the Immigration and Nationality Act 2002 provides for the tribunal’s powers on an appeal:

86 Determination of appeal

…

(3) The Tribunal must allow the appeal in so far as it thinks that—

(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or

(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.

12.        Section 87 is also relevant:

87 Successful appeal: direction

(1) If the Tribunal allows an appeal under section 82, 83 or 83A it may give a direction for the purpose of giving effect to its decision.

(2) A person responsible for making an immigration decision shall act in accordance with any relevant direction under subsection (1).

(3) But a direction under this section shall not have effect while—

(a) an application for permission to appeal under section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007 could be made or is awaiting determination,

(b) permission to appeal to the Upper Tribunal or a court under either of those sections has been granted and the appeal is awaiting determination, or

(c) an appeal has been remitted under section 12 or 14 of that Act and is awaiting determination.

(4) A direction under subsection (1) shall be treated as part of the Tribunal's decision on the appeal for the purposes of section 11 of the Tribunals, Courts and Enforcement Act 2007.

E.           analysis

13.        The decision of the Immigration and Asylum Chamber found that the claimant had been the victim of domestic violence and that her Article 8 rights would be breached if she had to leave the United Kingdom. The judge did not make a direction under section 87. The decision was in accordance with section 86(3), which merely provides for the circumstances in which an appeal must be allowed. It does not authorise the tribunal itself to make an immigration decision and the judge did not do so. That reading of section 86(3) is reinforced by section 87, which provides for the tribunal to direct that leave to remain be given. That would not be necessary if that were the effect of the tribunal’s decision under section 86(3). Moreover, even if the tribunal had given a direction under section 87, the application of that provision is potentially conditional as qualified by section 87(3). My understanding is that the tribunal’s decision gives rise to a public law duty that it be implemented unless circumstances justify a different decision. For example: the person might, after succeeding on appeal, commit an offence that would justify a different decision on leave. The need to take account of those sort of circumstances explains the limitation of the powers of the tribunal under section 86(3).

14.        Given the terms of the immigration legislation, the Secretary of State and the tribunal were correct that leave to remain was not given to the claimant until after the date of the decision on her claim for income support. That was too late for the tribunal to take it into account. As in the IG case, it is not necessary for me to decide whether the key date is the date on the stamp in the passport or the date of the notification letter.

F.           conclusion

15.        For those reasons, I dismiss the claimant’s appeal. I admit to doing so with regret, as the reality for practical purposes was that the effect of the immigration appeal was that claimant would be given indefinite leave to remain and thereby freed from the condition that she must have no recourse to public funds, but that is not the way that the legislation operates.

 

Signed on original on 12 September 2011

Edward Jacobs Upper Tribunal Judge