UTIAC 1. The requirement to show that a person or persons can be maintained (or will maintain themselves) ‘adequately’ without recourse to public funds has long been a requirement of the immigration rules. It continues to be a requirement for various categories of person in the amended rules that came into force in July 2012. In order to establish that maintenance is ‘adequate’ under the rules as in force before 9 July 2012, an applicant needs to show that the resources available will meet or exceed the relevant income support level set by the United Kingdom government (KA (Pakistan) [2006] UKAIT 00065). A similar requirement is to be found in the definitions of ‘adequate’ and ‘adequately’ in paragraph 6 of the rules as amended in July 2012.
2. In calculating the level of resources that will be available to the applicant and any relevant family members, after the claimant’s hypothetical arrival in the United Kingdom, it may be necessary to consider the effect on such a member’s entitlement to benefits of income and/or capital.
3. Income support is a means-tested benefit. The general rule is that all income, including that from other social security benefits, is to be taken into account when calculating an individual’s entitlement to income support, unless a specific ‘disregard’ applies. A list of disregards is to be found in Schedule 9 to the Income Support (General) Regulations 1987. They include ‘voluntary payments’. For the purposes of the 1987 Regulations, a voluntary payment is a payment by a third party, without anything being obtained in return, tangible or otherwise (R v Doncaster Borough Council ex parte Boulton [1993] 25 HLR 195; R(H) 5/05).
4. Access to capital may have an effect upon a person’s means tested benefits, provided that the person concerned has a beneficial interest in the capital. At present, a person is not entitled to income support if he or she has such an interest in capital over andpound;16,000 (regulation 45 of the 1987 Regulations). Capital of less than andpound;6,000 has no effect on entitlement to income support. Capital of between andpound;6,000 and andpound;16,000 causes weekly income support to be reduced by andpound;1 for every andpound;250 or part of such capital (regulation 53).
5. If a person is given money in order for it to be used for a particular purpose and on condition that the money must be returned if not used for that purpose, then the money will be regarded as being held on trust by that person for that purpose and, if the purpose fails, on a resulting trust for the payer. It will accordingly, at least in general, not be treated as the person’s capital, since he or she has no beneficial interest in it (Barclays Bank Limited v Quistclose Investments Limited [1970] AC 567).
6. In considering the above matters in an immigration appeal, it is important to bear in mind (a) that the appellant carries the legal burden of proving that he or she meets the relevant requirements of the immigration rules; and (b) in the light of [19] of Mahad [2009] UKSC 16, any case that depends for its success upon a third party’s voluntary payment will need to be scrutinised with particular care. Much will turn on the credibility of the appellant, sponsor and third party, both generally and as to the specifics of the actual payments. The same is true in relation to any assertion that income paid to or capital or other sums held by a sponsor who is in receipt of benefits are to be treated as being subject to ‘Quistclose’ trusts. A specific decision in an individual’s favour by the Department for Work and Pensions (‘DWP’) will normally be determinative, unless it can be shown the DWP was materially misled. Conversely, the mere absence of an adverse DWP decision will not usually take the appellant’s case materially forward.
7. Because these issues involve mixed fact and law, an appellant in an immigration appeal must be able to demonstrate, either that the actual financial position, on arrival, will be such as to make it unnecessary to rely on benefits in order to provide a standard of living equivalent to that available on means tested benefits; or that the relevant law bears on the circumstances of the family in such a way that there will be no additional recourse to public funds in so relying.
Judges:
Storey, Peter Lane, Ward LJJ
Citations:
[2012] UKUT 425 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration, Benefits
Updated: 09 November 2022; Ref: scu.466468
