KJ v The Entry Clearance Officer, New Delhi

An applicant under paragraph 95(v) of the Immigration Rules HC 395 could rely on financial support from a third party to show an ability to maintain and accommodate himself without recourse to public funds. The support must nevertheless be genuinely available. The tribunal must assess that question on all the evidence.

An error in rejecting third-party support is not material where an independent finding, properly open on the evidence, establishes that the asserted funds were not genuinely available and therefore that the financial requirement was not met.

The appellant, an Indian national, applied for entry clearance as a working holiday maker. The Entry Clearance Officer refused the application under paragraph 95(v), (vi) and (viii) of the Immigration Rules HC 395.

Immigration Judge Peart dismissed the appeal on the papers. He held that the appellant could not rely on his father’s financial support and, alternatively, that the family’s financial circumstances did not show that the father’s retirement fund and savings were genuinely available. Permission to appeal was granted because the first conclusion was arguably inconsistent with Mahad v. Entry Clearance Officer [2009] UKSC 16.

The central issue was whether that legal error required the Immigration Judge’s decision to be set aside.

1. The appeal was dismissed. The Immigration Judge’s decision stood because the error concerning third-party support was not material.

2. The Secretary of State accepted, following Mahad v. Entry Clearance Officer [2009] UKSC 16, that a working holiday maker could rely on third-party financial support when seeking to satisfy paragraph 95(v) of the Immigration Rules HC 395. The Immigration Judge therefore misdirected himself by treating the appellant’s dependence on his father as, of itself, fatal.

3. That concession did not remove the requirement to establish, on the facts, that the proposed support would in fact be available. The decision-maker must assess the whole of the evidence when deciding whether the applicant can maintain and accommodate himself without recourse to public funds.

4. The Immigration Judge’s alternative finding was decisive. The appellant proposed to use the entirety of his father’s retirement fund and his parents’ savings, while the father’s net monthly earnings were modest. The appellant had not explained how his parents would support themselves in retirement if those funds financed his extended holiday. It was therefore open to the Immigration Judge to find that the funds were not genuinely available.

5. Accordingly, the misdirection about third-party support did not affect the dismissal of the appeal and did not require the decision to be set aside.

• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed. The tribunal held that the Immigration Judge’s legal error concerning third-party support was immaterial and upheld the decision.
• First-tier Tribunal: Immigration Judge Peart dismissed the appeal in a determination promulgated on 12 October 2009.