French v Entry Clearance Officer Kingston

Adequate maintenance under paragraph 281(v) of the Immigration Rules is assessed objectively. The income-support level may be treated as the Government’s assessment of adequate maintenance and as an appropriate benchmark. A tribunal may find the requirement unmet where the sponsor’s available income falls below that benchmark and the applicant has no independent income. Existing debts and payment obligations may reinforce that conclusion. A claimed willingness to live frugally does not displace the objective standard.

The appellant, a Jamaican citizen, applied for entry clearance to settle in the United Kingdom as the husband of a British citizen. The Entry Clearance Officer refused the application on the basis that the couple could not maintain themselves and their dependants adequately without recourse to public funds under paragraph 281(v) of the Immigration Rules.

Immigration Judge Birk dismissed the appeal under the Rules and under article 8. Reconsideration was ordered only on the maintenance issue. The Designated Immigration Judge found a material error of law but again dismissed the appeal because the sponsor’s income was below the income-support benchmark. The central issue was whether KA and others (Adequacy of Maintenance) Pakistan [2006] UKAIT 00065 stated the correct test and had been applied too inflexibly.

Appeal dismissed unanimously. Lord Justice Stanley Burnton gave the judgment, with which Laws and Longmore LJJ agreed.

1. Paragraph 281(v) of the Immigration Rules requires an objective assessment of whether the proposed family can be maintained adequately. It is not enough that the parties are willing to tolerate a lower or frugal standard of living.

2. The reasoning in KA and others (Adequacy of Maintenance) Pakistan [2006] UKAIT 00065 was binding in substance. In AM Ethiopia [2008] EWCA Civ 1082, Laws LJ had approved and adopted that reasoning as part of the ratio in the appeal of MB, and the other members of that court had agreed. The later Supreme Court judgment, [2009] UKSC 16, neither criticised nor considered that part of the Court of Appeal’s reasoning.

3. The amount payable by income support could properly be accepted as the Government’s assessment of the sum required for adequate maintenance. For the reasons in KA, it was an appropriate and sensible benchmark for the rule.

4. On the facts, the appellant had no earnings or other income and would depend on his wife. Her income was below the income-support level. Her credit-union debt and court-ordered payments also showed existing difficulty in maintaining herself and her children. The Designated Immigration Judge was therefore entitled to find that the paragraph 281(v) requirement was not met, despite the relatively modest shortfall.

• Court of Appeal (Civil Division) — dismissed the appeal and upheld the conclusion that paragraph 281(v) of the Immigration Rules was not satisfied.
• Upper Tribunal (Immigration and Asylum Chamber) — Designated Immigration Judge French found a material error of law in the earlier decision but remade the decision by dismissing the appeal on the maintenance issue.
• Reconsideration stage — Senior Immigration Judge Eshun ordered reconsideration under section 103A of the Nationality, Immigration and Asylum Act 2002, confined to paragraph 281(v). The order was treated as permission to appeal to the Upper Tribunal under the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010.
• Immigration Judge — Immigration Judge Birk dismissed the appeal under the Rules and article 8.
• Entry Clearance Officer — refused entry clearance for settlement as a spouse.