MK (Somalia) v Entry Clearance Officer

Disability Living Allowance may be taken into account when deciding whether an entrant spouse can be maintained adequately without additional recourse to public funds under paragraph 281(v) of the Immigration Rules. Although calculated by reference to the recipient’s disability-related needs, the allowance becomes the recipient’s property and may lawfully be spent or saved as the recipient chooses.

The applicant must establish the factual basis on which the allowance will be paid or applied for the applicant’s maintenance. The mere legal availability of the money does not dispense with that factual inquiry.

A Somali citizen applied for entry clearance as the spouse of a refugee settled in the United Kingdom. His wife received income support and Disability Living Allowance because of her disabilities. The proposed arrangement was that the appellant would become her carer and that the allowance would be paid to him or applied for his maintenance.

An immigration judge dismissed his appeal. On reconsideration, the Asylum and Immigration Tribunal held that there had been no error of law because Disability Living Allowance was awarded to meet the sponsor’s own needs and was unavailable to maintain her spouse.

The central issue before the Court of Appeal was whether Disability Living Allowance could be taken into account when assessing compliance with paragraph 281(v) of the Immigration Rules, which required adequate maintenance without recourse to public funds.

1. By a majority, the appeal was allowed. Sedley and Rimer LJJ held that Disability Living Allowance was capable of being taken into account under paragraph 281(v) of the Immigration Rules. Pill LJ dissented on that issue.

2. Per Sedley LJ, with whom Rimer LJ agreed, sections 72 and 73 of the Social Security Contributions and Benefits Act 1992 calculated the allowance by reference to the recipient’s need for care and mobility assistance. They enabled, but did not require, expenditure on such assistance. Once paid, the allowance belonged to the recipient, who could lawfully spend or save it as she chose. If she applied it to maintaining her entrant spouse, and the resulting resources were adequate, he could be maintained without recourse to additional public funds.

3. The approach in Jayjul Haque Ali v Secretary of State for the Home Department [2002] UKIAT 00092 was correct. Disability Living Allowance could be available for a spouse’s maintenance where the factual circumstances supported that conclusion. The applicant nevertheless had to establish the particular arrangement relied upon.

4. Rimer LJ held that the proposed use of the allowance to pay or maintain the appellant as the sponsor’s carer was legally permissible. If established, it could bring the couple’s combined resources to the minimum required by paragraph 281(v). The Tribunal had therefore erred by treating the sponsor’s assessed need for the allowance as sufficient, by itself, to make the money unavailable.

5. Pill LJ considered that the allowance was tailored and earmarked to meet the disabled recipient’s needs. In his dissenting view, freedom over expenditure did not convert it into joint family income or entitle an able-bodied spouse to rely upon it for maintenance.

6. By a differently constituted majority, the case was remitted. Pill and Rimer LJJ held that the Tribunal had to determine whether the proposed arrangement would in fact enable the parties to maintain themselves adequately. Sedley LJ would have allowed the appeal outright because he considered that no further factual findings were required.

1. Court of Appeal (Civil Division): By a majority, allowed the appeal in [2007] EWCA Civ 1521. By a differently constituted majority, remitted the case to the Asylum and Immigration Tribunal for factual findings.
2. Asylum and Immigration Tribunal: On reconsideration, dismissed the appeal on 13 March 2007 and held that the immigration judge had made no error of law.
3. Immigration judge: By a determination dated 24 October 2006, dismissed the appeal against the refusal of entry clearance.