Begum, R (on the application of) v Social Security Commissioner

A maintenance undertaking for social-security purposes need not be given on an official form unless Parliament has expressly imposed that requirement. Whether a document constitutes an undertaking is a question of fact. Relevant considerations include its purpose, formality, definiteness and whether the immigration authorities relied on it in granting leave to enter. A written undertaking to maintain and accommodate a person without recourse to public funds may therefore qualify even if it uses non-standard wording. Judicial review does not permit factual findings by an appeal tribunal to be disturbed unless no reasonable tribunal could have reached them.

The claimant sought judicial review of the Social Security Commissioner’s refusal of leave to appeal from the Coventry Appeal Tribunal. The tribunal had upheld the refusal of income support because the claimant had entered the United Kingdom following a written maintenance undertaking given by her son-in-law.

The undertaking was prepared and witnessed by solicitors but was not given on form RON 112. The claimant argued that only a formally prescribed undertaking, containing specified warnings and certifications, could engage the statutory exclusion from income support. The central issues were whether the document was a qualifying undertaking and whether leave to enter had been granted as a result of it.

1. The application was dismissed. The claimant was a person subject to immigration control for the purposes of the relevant income-support provisions.
2. The applicable provision was regulation 21(3)(i) of the Income Support (General) Regulations 1987, because the relevant undertaking, entry and claim pre-dated the Immigration and Asylum Act 1999. There was no material difference for this issue between that provision and section 115 of the 1999 Act.
3. No statutory form was prescribed for a written maintenance undertaking. Form RON 112 existed, but Parliament had not required its use. The later form SET(F), and later instructions concerning it, could not determine the legal effect of the 1998 undertaking.
4. Whether a document is an undertaking given in pursuance of the Immigration Rules is a question of fact. The court endorsed the approach in CIS/2474/1999, CIS/47/02 and CIS/2816/2002. Relevant features included whether the document was intended to secure entry clearance, whether the immigration authorities treated it as an undertaking, and whether it was sufficiently formal and definite.
5. The document expressly undertook maintenance and accommodation without recourse to public funds. It was prepared by solicitors, witnessed, and relied on in granting leave to enter. It therefore constituted a qualifying undertaking. The tribunal was entitled to find that the undertaking extended beyond six months and throughout the claimant’s stay.
6. The tribunal’s factual conclusions were not irrational. The fact that leave to enter had been granted because of the undertaking could be inferred from the correspondence and the Immigration Rules, particularly paragraphs 35, 317(iva) and 320(14).

Costs were awarded to the defendant, not to be enforced without leave of the court. Permission to appeal was refused.

The judgment itself records the following procedural history:

• Social Security Commissioner: On 14 January 2003, refused leave to appeal from the tribunal’s decision.
• Coventry Appeal Tribunal: On 4 November 2002, rejected the claimant’s appeal against the Benefits Agency’s refusal of income support.
• High Court (Administrative Court): Dismissed the judicial-review claim and refused permission to appeal.