GS v The Entry Clearance Officer, New Delhi

Under Immigration Rules paragraph 6C, an out-of-country applicant has recourse to public funds if the applicant relies on a future increase in public funds payable because of the applicant’s presence. This differs from paragraph 6B, which governs the general position under the tax-credit regulations.

Where a spouse or partner joins a working sponsor who is bringing up children alone, the relevant tax-credit entitlement must be assessed realistically. The arrival may reduce, rather than increase, working tax credit because the sponsor loses the lone-parent element. A refusal for inadequate maintenance cannot rest on a speculative increase in rent or tax credits, particularly where the evidence indicates that overall income will not need to increase.

The appellant applied from India for entry clearance as the spouse of a sponsor living in the United Kingdom with two children. The Entry Clearance Officer refused the application under paragraph 281(v) of the Immigration Rules, on the ground that adequate maintenance would not be available without additional recourse to public funds.

Immigration Judge Mathews dismissed the appeal. Although the sponsor’s income exceeded the applicable Income Support comparator, the judge considered that rent and tax-credit payments might increase if the appellant joined the household. The Upper Tribunal set aside that decision for procedural unfairness because the rent issue had not been raised with the parties. Evidence subsequently showed that rent would not increase. The remaining issue was whether the appellant’s arrival would increase tax credits and therefore engage paragraph 6C.

1. Appeal allowed. The First-tier decision was set aside for legal error. It relied on a possible rent increase that had neither been raised by the Entry Clearance Officer nor put to the parties, and the subsequent evidence showed that the rent would not increase.

2. Paragraph 6C of the Immigration Rules applies to an applicant seeking entry clearance from outside the United Kingdom. Unlike paragraph 6B, it treats the applicant as having recourse to public funds where the applicant relies on a future entitlement to public funds payable to the applicant or sponsor because of the applicant’s presence.

3. The relevant inquiry is whether the applicant’s arrival would cause an increase in tax credits. A person subject to immigration control may be included in a joint tax-credit calculation under regulation 3(2) of the Tax Credits (Immigration) Regulations 2003, but that does not itself establish an increase for paragraph 6C.

4. On the available evidence, child tax credit for the sponsor’s existing children would not increase. Working tax credit was likely to decrease because the sponsor would lose the lone-parent element on becoming part of a couple. The sponsor’s existing income of £575 per week already exceeded the Income Support comparator, and it was most unlikely that her overall weekly income would need to increase because of the appellant’s arrival.

5. The maintenance requirement in paragraph 281(v) was therefore met without additional recourse to public funds.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appellant’s appeal after setting aside Immigration Judge Mathews’ dismissal for legal error.
• Immigration Judge: Dismissed the appeal against refusal of entry clearance under paragraph 281(v) of the Immigration Rules.
• Entry Clearance Officer, New Delhi: Refused the spouse entry-clearance application on 10 March 2010.