Entry Clearance Officer, Madrid v Jahan Alexander Ramirez Yarce

For adequate maintenance under the pre-July 2012 Immigration Rules, available resources must meet the objective income-support level for the relevant family unit. The applicant must prove this on the balance of probabilities.

Regular third-party payments may be disregarded for means-tested benefits if they are voluntary, meaning that the payer receives nothing in return. Capital affects benefits only where the recipient has a beneficial interest. Money held solely for a specified purpose, with an obligation to return it if that purpose fails, may be held on a Quistclose trust and is not the recipient’s capital.

Third-party support and alleged trusts require particularly careful scrutiny. A claimant must show either that benefits are unnecessary to reach the required standard, or that the relevant benefits law means that no additional recourse to public funds follows from entry.

A Colombian national applied for entry clearance to join his British-citizen wife and their children in the United Kingdom. The Entry Clearance Officer refused the application under paragraph 281 of the Immigration Rules, contending that the family could not maintain and accommodate themselves without additional recourse to public funds.

The First-tier Tribunal allowed the appeal, relying on weekly payments and accumulated funds provided by the sponsor’s mother. The Upper Tribunal set that decision aside after admitting evidence concerning the sponsor’s benefits and beneficial ownership of the accumulated funds.

On re-making the decision, the Tribunal heard fresh evidence from the sponsor and her mother. The central issue was whether the third-party payments and capital affected the sponsor’s means-tested benefits and whether the respondent’s entry would entail additional recourse to public funds.

1. The appeal against refusal of entry clearance was allowed. The First-tier Tribunal’s decision had been set aside, but the Upper Tribunal re-made the decision in the respondent’s favour. He had established that he met paragraph 281 of the Immigration Rules and that his entry would not involve additional recourse to public funds.

2. Adequate maintenance required resources meeting the objective income-support level for the couple and dependent children. The Tribunal followed KA (Pakistan) [2006] UKAIT 00065. It rejected the proposition from that case concerning voluntary-payment disregards because the legislation considered there had been superseded.

3. Under the Income Support (General) Regulations 1987, regular payments voluntarily made by a third party are disregarded as income. Applying R(H) 5/05, the Tribunal held that post-arrival weekly payments from the sponsor’s mother would be voluntary payments. The mother received no tangible or intangible return, and the payments would therefore be disregarded.

4. Capital is relevant only if the person has a beneficial interest in it. Applying Barclays Bank Limited v Quistclose Investments Limited [1970] AC 567, the Tribunal found that the weekly sums and accumulated capital had always been held for the respondent’s specified use and were not beneficially owned by the sponsor. The capital was therefore not hers for benefit purposes.

5. The Tribunal accepted the sponsor’s and mother’s evidence as credible. It found that the mother’s support was assured and that any remaining shortfall would be met. In accordance with Mahad [2009] UKSC 16, such third-party arrangements required careful scrutiny, but the applicant had discharged the burden of proof.

6. The respondent’s arrival would not create an impermissible increase in public funds. The relevant income-support or jobseeker’s-allowance position, disregarded payments, capital rules, child-related benefits and housing benefit did not produce such an increase. Any increased council-tax benefit could, if necessary, be avoided by not claiming it, with the available capital meeting the resulting modest cost.

• Upper Tribunal (Immigration and Asylum Chamber): The Entry Clearance Officer’s challenge succeeded to the extent that the First-tier Tribunal decision was set aside for error of law. The Upper Tribunal then re-made the decision and allowed the respondent’s appeal.
• First-tier Tribunal: Allowed the respondent’s appeal against the Entry Clearance Officer’s refusal of entry clearance under paragraph 281 of the Immigration Rules. No citation was stated.