Shah v Secretary Of State For Social Security

A sponsor’s written undertaking to maintain and accommodate an immigrant may be a continuing contractual promise. Where it is linked to an indefinite grant of leave, temporary departure and later admission as a returning resident do not end the undertaking.

For regulation 21(3)(i) of the Income Support (General) Regulations 1987, leave granted upon an undertaking has that undertaking as its basis or foundation. The causal connection may be indirect where the original indefinite leave, supported by the undertaking, is an essential condition of later admission as a returning resident.

The express power to prescribe a nil applicable amount permits regulations excluding a class from income support. Ancillary provisions concerning recovery from sponsors do not entrench an entitlement which the enabling legislation permits regulations to remove.

The claimant, a Pakistani citizen, obtained indefinite leave to remain after his nephew gave a written undertaking to maintain and accommodate him. After leaving the United Kingdom, he returned twice as a returning resident and claimed income support following his second return.

The Social Security Appeal Tribunal and then the Social Security Commissioner rejected the claims for the period before five years had elapsed from the original grant of indefinite leave. The claimant appealed to the Court of Appeal.

The appeal raised three questions: whether the undertaking extended to later leave to enter; whether the later leave was granted upon that undertaking within regulation 21(3)(i); and whether the 1996 amending regulations were ultra vires.

1. Appeal dismissed. Lady Justice Hale gave the leading judgment. Lord Justice Mummery and Lord Justice Pill agreed with her conclusions on all three issues.

2. The undertaking was a voluntary contractual promise, construed in the setting of immigration legislation. Its words were not confined to the particular application which led to the first grant of leave. It applied throughout the period of the indefinite leave and was not terminated by a temporary departure from the United Kingdom. A contrary construction would require words not found in the undertaking and would permit its simple evasion by a brief journey outside the common travel area.

3. The original indefinite leave remained an essential precondition of admission as a returning resident under the immigration rules. The Secretary of State could therefore continue to rely on the undertaking linked to that leave. Lord Justice Mummery described the undertaking as contractually linked to the original indefinite leave, notwithstanding subsequent grants of leave required on re-entry.

4. In regulation 21(3)(i) of the Income Support (General) Regulations 1987, the word upon denotes a basis or foundation. It does not require the immigration officer personally to know of, consider, or obtain a fresh undertaking at each return. The necessary causal connection existed because the original indefinite leave, which had been granted upon the undertaking, was necessary for subsequent admission as a returning resident.

5. The 1996 amendment was within section 135 of the Social Security Contributions and Benefits Act 1992. Section 135(2) expressly authorised prescription of nil as an applicable amount. The provisions of the Social Security Administration Act 1992 concerning sponsors and recovery did not create an entrenched entitlement to income support and did not restrict that clear regulation-making power.

6. The court did not decide the proper meaning of the date from which the five-year period runs. Lady Justice Hale expressly left the issue open. Lord Justice Pill observed, without deciding it, that it was at least arguable that the relevant date throughout regulation 21(3)(i) was the original grant of indefinite leave.

• Court of Appeal (Civil Division): dismissed the claimant’s appeal in [2002] EWCA Civ 285.

• Social Security Commissioner: Mr Commissioner Jacobs dismissed the claimant’s further appeal from the tribunal.

• Social Security Appeal Tribunal: dismissed the claimant’s appeal against the rejection of his income-support claims.