ENTRY CLEARANCE OFFICER, DHAKA v SOHAIL AHMED

For pre-9 July 2012 entry-clearance applications, adequate maintenance requires a comparison between the applicant’s and sponsor’s projected income after accommodation costs and the applicable benefit threshold. The calculation must reflect the financial position at the decision date and use consistent periods of calculation.

A sponsor’s existing benefits may be taken into account where the applicant’s arrival would not increase entitlement to public funds under paragraphs 6A–6C of the Immigration Rules. Reliable proof of actual benefit payments, normally bank evidence, is preferable to award notices. Tribunals should be given an arithmetically accurate calculation and the evidence needed to test it.

The Bangladeshi respondent applied for entry clearance to join his wife and two children in the United Kingdom. The Entry Clearance Officer refused the application on 30 December 2010. The First-tier Tribunal allowed the appeal, but its determination was set aside for material error of law.

The Upper Tribunal re-made the decision. Accommodation had already been found adequate, leaving the sole live issue whether the parties could maintain themselves adequately without recourse to public funds under paragraphs 281(iv) and 281(v) of the Immigration Rules. The central question was whether the sponsor’s earnings and benefit income, assessed at the date of decision and on the respondent’s assumed arrival, exceeded the applicable benefit threshold.

1. The respondent’s appeal against the refusal of entry clearance was allowed. The Tribunal re-made the First-tier Tribunal’s set-aside decision and held that the maintenance requirement was satisfied.

2. The correct adequacy comparison, following KA and Others (Adequacy of Maintenance) [2006] UKAIT 00065 and Uvovo (00 TH 01450), was projected income less accommodation costs, measured against the income-support or equivalent benefit threshold. The assessment was directed to the financial position on the applicant’s arrival, but, in an out-of-country entry-clearance appeal, the relevant circumstances and benefit rates were those at the date of refusal because of section 85(5) of the Nationality, Immigration and Asylum Act 2002.

3. On a sensible and ordinary reading of paragraphs 6A–6C of the Immigration Rules, the sponsor could rely on her existing public-fund income unless the respondent’s arrival would create increased or additional entitlement prohibited by those provisions. A hypothetical joint tax-credit claim did not change the child tax credit. The working-tax-credit lone-parent element would be replaced by an equal second-adult element. Child benefit was unchanged because it depended on the children, not the number of adults.

4. The sponsor’s projected weekly income was £380.17. After weekly rent of £50, it was £330.17, exceeding the £235.29 benefit threshold by about £95. The income was sufficiently assured, and the family could therefore be maintained using only the state resources permitted by the Rules.

5. The Tribunal added practical guidance. Parties should provide a clear calculation using consistent weekly, fortnightly or four-weekly figures; four weeks must not be treated as a calendar month. Evidence of funds actually paid into a bank account will normally be more compelling than benefit award notices, particularly for tax credits.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal determination was set aside for material error of law. On re-making, the respondent’s appeal against the entry-clearance refusal was allowed in [2013] UKUT 84 (IAC).
• First-tier Tribunal: Immigration Judge Majid allowed the respondent’s appeal by a determination sent on 5 August 2011.