AS, SS, (India) v Secretary of State for the Home Department

Where an applicant must show under the Immigration Rules that he can maintain and accommodate himself without recourse to public funds, relevant third-party support may be taken into account. An erroneous direction excluding such support is a material error where the applicant relies on it or the case must be reconsidered on that basis. The error is immaterial where the applicant never advanced third-party support and the tribunal decided the appeal on the case actually presented. An appellate court assesses materiality by asking whether the error affected the outcome, not by considering a hypothetical case that might have been advanced.

Two Indian citizens appealed against decisions refusing entry clearance as working holidaymakers for two years. Their applications were refused under paragraph 95(v) of the Immigration Rules, which required an applicant to be able and intend to maintain himself without recourse to public funds.

Both appeals had failed before an Immigration Judge and the Upper Tribunal. In AS’s case, the Secretary of State accepted that the earlier decisions had wrongly excluded third-party support in the light of Mahad. In SS’s case, the Upper Tribunal made the same legal misdirection but dismissed the appeal after assessing the financial case actually advanced. The central issue was whether that error was material to the outcome.

1. AS: appeal allowed. The former working-holidaymaker requirement in paragraph 95(v) of the Immigration Rules had been interpreted as excluding third-party support. Following Mahad [2009] UKSC 16, that interpretation was wrong. Third-party financial support, accommodation and repatriation arrangements could be relevant to whether the applicant could maintain and accommodate himself without recourse to public funds. AS’s appeal was therefore remitted to the Upper Tribunal for a fresh hearing.
2. SS: appeal dismissed. The Upper Tribunal judge wrongly directed himself that the appellant had to show, from his own resources, enough money to fund the whole trip. That was an error of law. But the appellant had never put forward third-party support to the Entry Clearance Officer, the Immigration Judge or the Upper Tribunal. His case was based on £3,000 and prospective earnings. The judge then rejected that case on its facts, finding the proposed resources insufficient and the claimed employment prospects unsupported.
3. The court held that the error was not material in SS’s case. The suggested reliance on later remittances from family savings was hypothetical. The appellate court had to assess the materiality of the error against the case actually presented, and SS had no permission to challenge the factual findings on that case.

The orders were: AS’s appeal allowed and SS’s appeal dismissed.

• Court of Appeal (Civil Division) [2012] EWCA Civ 229: AS’s appeal allowed and remitted to the Upper Tribunal; SS’s appeal dismissed.
• Upper Tribunal Immigration and Asylum Chamber: both appeals dismissed. In SS’s case, Senior Immigration Judge Martin set aside the Immigration Judge’s determination for error of law but dismissed the appeal on the evidence.
• Immigration Judge / Asylum and Immigration Tribunal: the appellants’ appeals were dismissed.