Abubakar v Entry Clearance Officer (Sannaa)

For maintenance requirements under rule 317(iva) of the Immigration Rules, third-party financial support cannot ordinarily be ring-fenced for the applicant. The assessment must address the global financial position of the family unit in which the applicant will live, including the sponsor and dependants. Adequacy is assessed by reference to income-support levels, treated as an appropriate benchmark. The applicant must show both that adequate maintenance can be provided and that it will be provided without recourse to public funds. A sponsor’s unclaimed or speculative entitlement to benefits cannot establish that requirement.

The appellant, a Somali widow, appealed to the Court of Appeal against the Upper Tribunal’s dismissal of her challenge to refusal of entry clearance under rule 317. The First-tier Tribunal had accepted that she was financially dependent on her sponsor and could be accommodated adequately, but found that the sponsor’s income, even with proposed support from a third party, remained below the relevant income-support benchmark. The Upper Tribunal upheld that approach.

The appeal concerned whether third-party support sufficient for the applicant alone satisfied rule 317(iva), or whether the sponsor’s and family unit’s resources had to be assessed cumulatively. It also concerned whether possible benefits available to the British-citizen sponsor could cure any shortfall.

1. Appeal dismissed. The First-tier Tribunal had made no material error of law, and the Upper Tribunal was right to uphold its decision.
2. Rule 317(iva) of the Immigration Rules (HC 395) is objectively framed. Read with rules 6A and 6C, it requires assessment of whether the applicant’s presence in the United Kingdom will result in recourse to additional public funds. The inquiry therefore takes a global approach and is not confined to money directly available to the applicant.
3. There is no general rule permitting third-party support to be disaggregated or ring-fenced for the applicant. The practical reality will ordinarily be that such support accrues, directly or indirectly, to the family unit. That approach is consistent with the applicant’s financial dependence on the sponsor under rule 317(iii) and with the accommodation requirement in rule 317(iv).
4. The income-support level is an appropriate benchmark for deciding whether maintenance is adequate. The approach in KA (Pakistan), endorsed in French and consistent with Mahad, applied to rule 317(iva). On the findings, the family’s composite income remained below that benchmark even after including the proposed third-party support.
5. A possible entitlement of the sponsor to benefits or tax credits could not be relied upon. The point had not been raised or factually determined below, the sponsor had not claimed the benefits, and the evidence was assessed on the basis of his actual income. Rule 317(iva) requires that the applicant can and will be maintained without recourse to public funds.
6. Any additional benefits resulting from the applicant’s presence would be material under rules 6A and 6C, but such an issue could not properly be raised for the first time on appeal. The court expressed no concluded view on whether the third-party support had been shown to be assured.

• Court of Appeal (Civil Division) ([2012] EWCA Civ 377): appeal dismissed; the court held that the Upper Tribunal had correctly found no material error of law in the First-tier Tribunal’s determination.
• Upper Tribunal (Immigration and Asylum Chamber): appeal dismissed on 26 April 2011; the tribunal upheld the First-tier Tribunal’s cumulative assessment of the family’s resources.
• First-tier Tribunal: appeal against refusal of entry clearance dismissed on 2 July 2010; the tribunal found that the maintenance requirement in rule 317(iva) was not met.