Ahmed v Secretary of State for Work & Pensions

For a maintenance undertaking under the Immigration Rules and Immigration and Asylum Act 1999, the document must contain, in substance, an enforceable promise or agreement to maintain and accommodate the dependent relative in the future. A formal or solemn declaration is not enough merely because it supports an application for entry clearance, and the word “sponsor” does not necessarily import a promise.

There is no prescribed form. The substance of the language governs. However, because an undertaking may expose the sponsor to recoupment proceedings and criminal sanctions, the court should not readily infer one from words stating only present ability and willingness. The declaration in issue therefore did not constitute a maintenance undertaking.

The claimant entered the United Kingdom in 1999 for an indefinite period as the dependent relative of his nephew. The nephew had signed a sincere and solemn statutory declaration stating that he was able and willing to maintain and accommodate the claimant without recourse to public funds.

The claimant later claimed income support for a period within the first five years after entry. The issue was whether his entry had been granted on the basis of a maintenance undertaking within section 115 of the Immigration and Asylum Act 1999, which would have excluded him from income support. Coventry United Appeal Tribunal decided in his favour, and the Social Security Commissioner upheld that result in CIS 426/2003. The Secretary of State appealed to the Court of Appeal.

1. Appeal dismissed. The declaration signed by the claimant’s nephew did not amount to a maintenance undertaking within section 115(10) of the Immigration and Asylum Act 1999. The claimant was therefore not excluded from income support on that basis for the period in issue. The respondent was awarded the costs of the appeal, subject to public funding assessment; permission to appeal was refused.
2. Rule 317 of the Immigration Rules requires the Secretary of State to be satisfied about accommodation and maintenance without recourse to public funds, but it does not require a maintenance undertaking. Rule 35 governs an undertaking which may be requested from a sponsor. The word “sponsor” in Rule 317 may denote support and does not necessarily denote a promise of support.
3. An undertaking must be, in substance, a promise or agreement, prima facie contractual in form, imposing an obligation as to future maintenance and accommodation. No particular words or prescribed form are required, but the document must clearly convey that promise. A statement that the sponsor is “able and willing” to maintain and accommodate the applicant ordinarily states present ability and intention; it does not itself promise future conduct.
4. The distinction is substantive rather than formal. The statutory consequences of an undertaking include potential recovery of income support under the Social Security Administration Act 1992 and possible criminal liability. In that context, an undertaking should not be inferred from a solemn or formal document without reasonably plain promissory language.
5. Rix LJ disapproved the essential reasoning in Commissioner Fellner’s contrary decision in CIS/47/02. Jacob LJ and May LJ agreed with Rix LJ’s reasons.

• Court of Appeal (Civil Division) ([2005] EWCA Civ 535): Appeal dismissed.
• Social Security Commissioner: By decision dated 24 June 2004, upheld the appeal tribunal’s decision in favour of the claimant (CIS 426/2003).
• Coventry United Appeal Tribunal: By decision dated 31 July 2002, decided in favour of the claimant.