APPEAL No. RB (Maintenance – income support–schedules.) Morocco [2004] UKIAT 00142

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 12 May 2004
Date Determination notified: 10 June 2004

Before

Mr H J E Latter, Vice President
Mr F T Jamieson
Mr M E Olszewski

Between

ENTRY CLEARANCE OFFICER - CASABLANCA	APPELLANT	
and	 	
RB	RESPONDENT	

For the Appellant:	Mr L Parker, Home Office Presenting Officer
For the Respondent:	Mr B Ali of Counsel

DETERMINATION AND REASONS

1.	The Entry Clearance Officer appeals against the determination of an Adjudicator, Mr D Bartlett, who allowed the respondent's appeal against the decision made on 21 November 2002 refusing her entry clearance as a spouse.  In this determination the Tribunal will refer to the respondent to this appeal as the applicant.

Background.

2.	The applicant applied for entry clearance on 23 September 2002.  The Entry Clearance Officer was not satisfied that there would be adequate maintenance and accommodation available to the applicant and her dependants without recourse to public funds.

3.	In brief outline the background to this appeal is as follows.  
The sponsor’s brother is married to the applicant’s niece.  The sponsor went on holiday to Morocco with his brother in July 2001 and met the applicant.  Subsequently they became engaged.  An application was made for a fiancée visa in August 2001 but this was refused.  The sponsor kept in contact with the applicant and in March 2002 he returned to Morocco.  They married on 10 April 2002.  A child Yasir Omar was born in January 2003.

4.	The evidence before the Entry Clearance Officer was that 
the sponsor was in receipt of income support and disability living allowances totalling £135.63 per week.  His rent was paid from housing benefit but he was still liable for utility bills, transport costs, food and clothing expenses.  There was no evidence of any prospective employment or that he was actively seeking employment. In these circumstances the Entry Clearance Officer was not satisfied that the sponsor would be able to support additional members of the household without further recourse to public funds.  He noted that he had moved from a one to a three bedroomed council house and took the view that by definition this amounted to additional recourse to public funds.

5.	There was evidence that relatives of the applicant living in this country were prepared to provide additional financial support. One had signed a deed of covenant to pay the applicant £50 per week until she had found job and another had signed a similar deed for £40.  The Entry Clearance Officer was not satisfied that this offer of assistance was realistic or sufficient. If they withdrew their financial support, the likelihood was that this would lead to further recourse to public funds.  The applicant was divorced with a 17 year old son to support.  She was unemployed and had no qualifications.  She had said that she would work as a cleaner but there was no evidence of any offers of employment.  As she had a young baby to look after the Entry Clearance Officer doubted whether she would find a job within a reasonable time.  For these reasons he was not satisfied that the applicant and the sponsor could maintain or accommodate themselves adequately without further recourse to public funds.

The Adjudicator’s decision.

6.	The Adjudicator heard the appeal against this decision on 
15 August 2003.  It was accepted that the sponsor was disabled as a result of an industrial accident and was in receipt of state benefits totalling £137 a week.  His benefit also included housing benefit in the form of rented accommodation.  The applicant had worked as a dressmaker in Morocco but would seek work as a cleaner in the United Kingdom if necessary.  Her sister who is married to a British citizen and had been resident in the United Kingdom since 1993 had signed a covenant undertaking to pay £40 a week to the Applicant from her arrival until she found permanent employment.  Another relative had signed a similar covenant but in the sum of £50.  The sponsor had confirmed that he was still unemployed but he had obtained a driving licence and hoped through contact with a minicab company to obtain employment at a future date.  

7.	He would be able to look after their son when the applicant went out to work.  He had not been able to find employment on her behalf as that was difficult without her being present.  He confirmed that he had moved into a larger flat in October 2001 by an exchange agreement with a neighbour who wished to move into a smaller flat.  The move resulted in a nominal increase of £10 per fortnight in his rental expenses.  The Adjudicator accepted that the sponsor appeared to be a genuine and credible witness.  Documents provided by the relatives offering to pay £40 and £50 a week respectively were credible and plausible.  The Adjudicator accepted that those offers were genuine.  The employment prospects of the applicant were difficult to assess but he commented that her English was improving and that should improve her employment prospects.

8.	Assessing the matter overall the Adjudicator said that he was satisfied that the applicant had established on a balance of probabilities that her husband would receive £135.63 as his income support and disability allowances.  In addition he had housing benefit.  The Adjudicator was not satisfied that the move from a one bedroom to a three bedroom flat constituted a recourse to additional public funds.  As the covenants were seriously entered into by the applicant’s relatives the result was that the applicant had established that there was a weekly amount of £135.63 plus £90 and accommodation in a three bedroomed flat.  The total weekly income would be £225.63.  The Adjudicator was satisfied that the applicant and her family could be accommodated and maintained without recourse to further public funds.  The appeal was allowed under the Immigration Rules.  The Adjudicator went on to consider in the alternative the appeal on Article 8 grounds.  He was not satisfied that there would be an insurmountable obstacle to the sponsor moving to Morocco and came to the view that the Entry Clearance Officer’s decision was reasonably open to him and could not be regarded as disproportionate.  The appeal was dismissed on human rights grounds.

Grounds of appeal.

9.	The Entry Clearance Officer has appealed against the decision to allow the appeal under paragraph 281 of HC 395.  The grounds argue that the Adjudicator failed to take into account the fact that the payments of £90 per week would be treated as income and lead to a reduction of the sponsor’s income support.  

Preliminary issues.

10.	At the hearing before the Tribunal Mr Ali made two preliminary applications.  The first was an application for permission to file a respondent's notice seeking to challenge the Adjudicator's decision dismissing the appeal on Article 8 grounds.  The notice and its supporting documents are included in the applicant’s bundle which was served on the Tribunal under cover of a letter dated 27 April 2004.  Mr Parker did not receive a copy of these documents until the day of the hearing.  Mr Ali submitted that the Article 8 appeal was properly arguable and that there would be a real risk of injustice if he could not pursue his cross-appeal.  His second point was that the Vice President when granting permission had identified issues of fact rather than law and there was only a right of appeal on a point of law.  The gist of Mr Ali’s submission was that the Tribunal should set aside the grant of permission and that would bring the appeal to an end.  

11.	Mr Parker submitted that it was an abuse of process for the respondent’s notice to be produced on the day of the hearing.  There was no adequate explanation why a notice had not been filed in accordance with the time limits in Rule 19 of the Procedure Rules.  Permission to appeal had been granted.  The Tribunal’s obligation was to proceed to hear the appeal on its merits rather than consider whether permission had been properly granted. 

12.	The Tribunal is not prepared to permit the respondent’s notice to be filed so late in the day.  Rule 19(2) requires a notice to be filed within such period as the Tribunal may direct or where the Tribunal makes no direction within ten days after the respondent is served with notice that the appellant has been granted permission to appeal.  In this case notice was given on 19 November 2003 which also gave the hearing date on 12 May 2004.  There has been ample opportunity to file a respondent's notice and no adequate explanation for the failure to do so in time.  The issues relating to article 8 are clear on the face of the determination.  In any event, the Tribunal is not satisfied that there is any reasonable prospect of a successful appeal on the issue of proportionality bearing in mind the recent starred Tribunal determination in M (Croatia) [2004] UKIAT 00024*.

13.	The second issue raised by Mr Ali is dealt with by the Tribunal in 
DD (Croatia) [2004] UKIAT 00032*.  There is no power to set aside the grant of permission to appeal. As the Tribunal commented in paragraph 34 of that determination, it would be quite inappropriate for the Tribunal before hearing an appeal to consider whether leave should have been granted rather than considering what the outcome of the appeal should be.  The grant of leave imposes on the Tribunal the duty to determine the appeal and not to question the jurisdiction conferred.  The Tribunal accordingly refuses Mr Ali’s second application.

Submissions.

14.	Turning to the merits of the appeal, Mr Parker submitted that the Adjudicator had erred in law by failing to take into account the fact that the additional payment of £90 per week would be deducted from the sponsor’s entitlement to income support.  He produced an extract from the Welfare Benefits and Tax Credits Handbook prepared by the Child Poverty Action Group CPAG 2003/2004.  For each of the means tested benefits other types of income are taken into account less any tax on them.  According to the sponsor he received income support of £109.18 per fortnight (£54.59 per week).  The money received from his relatives in the sum of £90 would be treated as income and this would disentitle him to income support.  It would also mean that he would not be entitled to housing benefit or to a reduction of his council tax.  Income support was the key to a wide range of other benefits.  

15.	Mr Ali submitted that there was no basis for going behind the Adjudicator's implicit findings that the sum of £90 would not be taken into account.  This was a goodwill gesture of support from relatives.  It had been covenanted to help the applicant meet her basic needs.  He submitted that the Tribunal should take account of Article 8 regardless of whether there was a formal appeal because of the basic obligation in the Human Rights Act 1998 which would prevent the Tribunal from acting in a way which was incompatible with a Convention right.  The insurmountable obstacle test in Mahmood [2001] Imm AR 229 was set too high and should be read in the context of judgments of the European Court such as  Abdulaziz Cabales and Balkandali v UK [1985] 7 EHRR 471.  Looking at the facts as a whole the decision to refuse entry clearance was a breach of Article 8.  

The Tribunal’s conclusions.

16.	The point in issue in this appeal is whether the Adjudicator was correct when he assumed that the family’s weekly income would be £225.63 (i.e. benefit of £135.63 plus £90 from members of the family).  Mr Parker’s submission is that the payments from the applicant’s family would be treated as income and deducted from his income support.  The Tribunal accept on the basis of the evidence in the CPAG Handbook that these regular payments would be treated as income and be deductible from the sponsor’s income support.  Other types of income are taken into account less any tax due on them.  Even assuming that these payments could be regarded as charitable or voluntary payments, they would only fall to be completely ignored if they were intended and used for anything except food, ordinary clothing or footwear, household fuel, council tax, water charges and rent.  It appears that if voluntary payments are taken into account there is a £20 disregard.  Working on the basis that the sponsor receives income support of £54.59 per week, even with a £20 disregard, his income support would be reduced to zero, assuming a pound for pound reduction.  Mr Ali argued that the result would be that the sponsor would still have more money because instead of having £135 a week he would have the £90 a week from his relatives together with £23.26 industrial injuries benefit and his disability living allowance.  The argument is that the income support of £54.59 per week is replaced by a payment of £90 and therefore the sponsor is about £35 a week better off.  

17.	Unfortunately the position is not as straightforward as that.  If the sponsor does not receive income support, he loses his entitlement to other related benefits such as housing benefit.  There is no evidence before the Tribunal of how much rent or council tax is paid or what the effect would be on the family’s budget of losing these benefits.  There is insufficient information available before the Tribunal for us to make clear findings on the consequences of the additional payments from family members being treated as income.  It is a pity that a proper schedule has not been prepared to show the consequences on the sponsor’s income from benefits so that a proper comparison can be made firstly with his current income and what his financial position would be assuming the Tribunal is right that the payments by covenant would be taken into account.  There should also be a schedule of his expenditure so that an informed decision can be made as to whether the family can maintain themselves adequately.

18.	At the hearing before the Tribunal it was not argued that the exchange of accommodation by itself amounted to a further recourse to public funds.  There is no evidence before us of any increase in rent save for the reference to a £10 increase in fortnightly rental expenses. The real issue in the light of the way the case has been put to the Tribunal is whether housing benefit will continue to be payable as rent and council tax forms part of the family’s general expenditure when considering the adequacy of maintenance.  

Decision.

19.	In our view the most appropriate course to take is to remit this appeal to Mr Bartlett for him to reopen the hearing so that he can consider further evidence about the effect on the sponsor’s benefits of a receipt of £90 from the applicant’s relatives.  It may be that further evidence will show that the Tribunal is wrong in its finding that these payments will be treated as income and deductible from income support but the onus is on the parties to produce the relevant evidence including properly prepared schedules of income and expenditure so that the Adjudicator can make an informed decision on the issues before him.  

20.	For the sake of completeness the Tribunal is not satisfied that it is arguable that the Entry Clearance Officer's decision was contrary to Article 8. If the provisions in the Immigration Rules relating to maintenance and accommodation are not fulfilled, it would only be in exceptional cases indeed that a decision to refuse entry clearance would contravene the United Kingdom's obligations under Article 8.

21.	For these reasons, this appeal is allowed to the extent that it is remitted to Mr Bartlett for him to reopen the hearing and reconsider the issues of maintenance and accommodation in the light of any further evidence which may be produced.

H J E LATTER
VICE PRESIDENT