(RIS_11_04) [2003] UKSSCSC CIS_5379_2002 (06 November 2003)

R(IS) 11/04
(R v. Secretary of State ex parte Begum [2003] EWHC 3380 Admin)
Mr R. J. C. Angus							CIS/5379/2002 HC (Sir Christopher Bellamy)
6.11.03
Residence and presence conditions – “person subject to immigration control” - whether maintenance undertaking made pursuant to the Immigration Rules if not made on official form.
The claimant, aged 71, entered the United Kingdom from Pakistan to live with her daughter on 1 May 1998. To facilitate her entry clearance, her son-in-law had signed a sponsorship undertaking on 18 March 1998 that she would be “maintained and accommodated without recourse to public funds”. Her claim for income support on 17 November 1998 was awarded from 10 May 1999. Following a routine check, her income support was suspended from May 2000. Her income support claim was eventually refused on 23 January 2002 as she had entered the United Kingdom on the basis of a sponsorship undertaking given on 18 March 1998. On 4 November 2002, the tribunal dismissed her appeal. Leave to appeal was refused by the Social Security Commissioner on 14 January 2003. The claimant sought judicial review of the Commissioner’s refusal. It was argued on her behalf that the declaration was not an undertaking for the purposes of the Immigration Rules or regulation 21(3)(i) of the Income Support (General) Regulations 1987 or section 115(9) and (10) of the Immigration and Asylum Act 1999 because it was not contained on an official form (RON 112 or SET(F)) and therefore lacked the necessary degree of formality to be considered as an undertaking within the meaning of those provisions. It was also argued that the tribunal’s decision that the undertaking was to last more than six months was perverse and, lastly, that there was no evidence to show that leave to enter had been granted on the basis of the undertaking.
Held, dismissing the application, that:
1.	the Commissioners’ decisions CIS/2474/1999, CIS/47/2002 and CIS/2816/2002 were correctly decided. Whether an undertaking amounts to an undertaking for the purposes of the relevant legislation is a question of fact. In the present case, the undertaking fell within the relevant provision which was regulation 21(3)(i): “an undertaking given by another person or persons in writing in pursuance of immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation”. There would have been no difference to the outcome of the appeal under the 1987 Regulations or under the 1999 Act. The document was sufficiently formal and definite to constitute an undertaking, contained an express undertaking that the claimant would be maintained and accommodated without recourse to public funds and was drawn up by solicitors and witnessed (paragraphs 27-31); 
2.	there was evidence that the claimant’s leave to enter was in fact granted on the basis of the undertaking paragraph 32);  
3.	the tribunal’s finding that the undertaking was to last more than six months was an issue of fact and one which they were entitled to reach (paragraphs 36-37).

DECISION OF THE HIGH COURT OF JUSTICE (ADMINISTRATIVE COURT)
Mr R. De Mello (Ms M. McCulloch-James) (instructed by Coventry Law Centre) appeared on behalf of the claimant
Ms R. Haynes (instructed by Secretary of State for Work and Pensions) appeared on behalf of the defendant

JUDGMENT

SIR CHRISTOPHER BELLAMY:

1.	The claimant, Zar Begum, seeks judicial review of the decision of the Social Security Commissioner dated 14 January 2003 refusing leave to appeal the decision of the Coventry appeal tribunal dated 4 November 2002, which in turn rejected the claimant’s appeal against the decision of the Benefits Agency of 23 January 2002 refusing the claimant income support.
2.	The basis for refusing the claimant income support was that she entered the United Kingdom on the basis of a sponsorship undertaken by her son-in-law dated 18 March 1998 and was not therefore entitled to income support at the time of her claim.
3.	The issue before me is whether the decision of the Commissioner and/or the decision of the appeal tribunal was rightly and lawfully founded on an undertaking given by the claimant’s son-in-law on 18 March 1998.  
4.	The claimant is aged 71 and resides with her daughter.  She arrived from Pakistan on 8 May 1998.  Prior to that, on 18 March 1998, the claimant’s son-in-law, Mohammed Wahid, gave an undertaking to the entry clearance officer, in the following terms:
“1.  I hold [a] British passport ... and I exhibit hereto a copy of the passport pages bearing print.  I have not travelled abroad since receiving the passport and there are no endorsements or visas in the passport. 
 2.  I am the son-in-law of ZAR BEGUM of Village Golin Post Office, Bhuttian ... District Rawalpindi Pakistan.  
3.  Zar Begum wishes to enter the United Kingdom for a period of six months.  
4.  I am employed by Royal Mail at 40 Bishop Street Coventry and I exhibit hereto a letter from my employers together with my pay slips for the last three months.  I have savings in Woolwich and I attach hereto two statements issued by Woolwich showing my present savings of £4,429.00.
5.  I own 63 Wright Street subject to a mortgage with the Leeds & Holbeck Building Society and I exhibit hereto a letter from the Building Society confirming the mortgage repayment position.
6.  I exhibit hereto a letter from Mercia Estate confirming the accommodation available at 63 Wright Street. 
7.  The occupants of 63 Wright Street at present are myself and my wife and our two children aged 4 and 5 years respectively.  
8.  If ZAR BEGUM comes to the United Kingdom I undertake that she will be maintained and accommodated without recourse to public funds and if it should be necessary to repatriate her I will bear the cost of such repatriation.
If ZAR BEGUM should die in the United Kingdom I will bear the cost of her burial or cremation.  
Dated this 18th day of March 1998”
That is signed by Mohammed Wahid.  It is witnessed and it bears the stamp of solicitors in Coventry, from which I infer it was a declaration prepared by solicitors.  
5.	It appears that on the basis of that document the Immigration Section of the High Commission in Islamabad granted the claimant an entry certificate to the United Kingdom dated 1 April 1998, which is stamped in the claimant’s passport.  That bears the wording: “Visa D settlement to join son single entry”.  At the same place in the passport there is also some writing, somewhat difficult to decipher, which appears to say: “Visa issued to Zar Begum to join Mohammed Wahid only.”
6.	It seems that the claimant presented her passport when she arrived at Heathrow on 1 May 1998.  On that occasion her passport appears to have been stamped “Given leave to enter the United Kingdom for an indefinite period”.
7.	Apparently the claimant claimed income support on 17 November 1998, which was awarded from 10 May 1999, the claimant not indicating at that time there was any sponsorship agreement.  It seems that the payment of income support was suspended the following February following a routine check.
8.	There then followed some contact with the British High Commission in Islamabad, and on 29 April 2000 the High Commission sent a letter to the Benefits Agency, referring to the claimant, which states as follows:
“I can confirm that the above named was given indefinite leave to enter the United Kingdom 8 May 1998 by an officer at Heathrow Airport to join her son, who is presented and settled here.  
The Declaration should have been signed and sent to the Entry Clearance Officer at the British High Commission in Islamabad, to satisfy the requirements for the Visa issue.  If this declaration is not signed the Visa application would be refused.  Paragraph 320 of HC395 section 14 states [sic]: refusal of entry clearance should normally be refused if refusal by a sponsor of a person seeking leave to enter the United Kingdom to give, if requested to do so, an undertaking in writing to be responsible for that person's maintenance and accommodation for the period of any leave granted.”
A further fax from the High Commission in Islamabad dated 20 September 2000 attached copies of the sponsorship declaration and contains the statement: “Although the declaration states a visit of six months, the application was for settlement”.
9.	The granting of leave to enter the United Kingdom is of course regulated by various provisions of the Immigration Rules which are in HC395.  Paragraph 317 states that: 
“The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom are that the person:
(i) is related to a person present and settled in the United Kingdom in one of the following ways: 
(a) mother or grandmother who is a widow aged 65 years or over
[that appears to be the case here] ...	
…
(iva) can, and will, be maintained adequately, together with any dependants, without recourse course to public funds.”
The undertaking given in support of the claimant's application to enter the United Kingdom appears to have been given in order to satisfy little paragraph (iva) which I just read.
10.	Paragraph 35 of the Immigration Rules provides in the first sentence:
“A sponsor of a person seeking leave to enter or variation of leave to enter or remain in the United Kingdom may be asked to give an undertaking in writing to be responsible for that person's maintenance and accommodation for the period of any leave granted, including any further variation.”
Again, that appears to be the provision under which this sponsorship undertaking was sought in the present case.
11.	The claimant was given leave to enter pursuant to the provisions of the Immigration Act 1971.  At this stage, it seems to me necessary to identify the provisions relating to income support that were applicable at the relevant time.  Up to April 2000, the matter appears to have been governed by regulation 21(3)(i) of the Income Support (General Regulations) 1987.  That provision excludes from income support various people, including a person who at the date of claim:
“... has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking given by another person or persons in writing in pursuance of immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation; and he has not been resident in the United Kingdom for a period of at least 5 years beginning from the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later; …”
That provision seems to have been replaced from 3 April 2000 by section 115 of the Immigration and Asylum Act, which provides that:
“(1) No person is entitled to ...	
 ...

(e) income support,
...

... while he is a person to  whom this section applies.	 
... 
(3) This section applies to a person subject to immigration control unless he falls within such category or description, or satisfies such conditions, as may be prescribed.
 ...
(9) A “person subject to immigration control” means a person who is not a national of an EEA state and who –	
...
(c) has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; ...”
Under sub-section 10 of section 115 “Maintenance undertaking” is defined as: “in relation to any person ... a written undertaking given by another person in pursuance of the immigration rules to be responsible for that person's maintenance and accommodation”. 
12.	I should mention that under section 115(9) there is a further definition of a person subject to immigration control, namely a person who: “(b) has leave to enter or remain in the United Kingdom which is subject to a condition that he does not have recourse to public funds”.  As far as I can judge in this case we are not concerned with subparagraph (b), we are concerned solely with subparagraph (c) and in particular whether the claimant was given leave to enter the United Kingdom as a result of a maintenance undertaking within the meaning of that provision, and in particular as a result of a maintenance undertaking as defined in subsection (10) of section 115.
13.	It appears to me that the relevant legal provisions, that is to say the former regulation 21(3(i) of the Income Support Regulations and section 115(9) of the 1991 Act, changed halfway through this case, but as far as I can judge there is no material difference for present purposes in the wording between them.
14.	It appears to be common ground that Parliament has not prescribed any statutory forms for the giving of the relevant maintenance undertaking other than the requirement that it should be in writing in accordance with the provisions that I have just cited.  However, there are two apparently official forms that are in use in this context.  The first is a form entitled “RON 112”, which is a form apparently used by the Home Office, which contains a form for the undertaking to be given.  It is headed “Undertaking given in pursuance of Immigration Rules”.  It sets out what the undertaking is, and in particular in paragraph 2 it states that the person giving the undertaking undertakes that he shall be “responsible for his/her maintenance and accommodation in the United Kingdom, throughout the period of that leave and any variation of it” in respect of a person given leave to enter or remain in the United Kingdom.  The undertaking further contains a provision that the Department of Health and Social Security may take appropriate steps to recover from the giver of the undertaking the cost of any income support paid to or in respect of the person who is the subject of the undertaking.  There is then on the bottom of the form a certificate which can be signed on behalf of the Secretary of State certifying that that is an undertaking given pursuant to Immigration Rules within the meaning of the Immigration Act 1971.  The form that I have just cited in the papers before me carries the print date of March 1989.
15.	There is then a second form which has figured in the argument, which is apparently known as SET(F).  The version in the papers before the court appears to be the version described as 11/2002, which I infer means that this is a form that was in use in November 2002.  It is not clear to me that this form was the form in use at the time that this applicant sought leave to enter the United Kingdom in 1998.  However, the form SET(F) is a somewhat more detailed version of RON 112.  It contains an undertaking that if the sponsored person is granted leave to enter or remain in the United Kingdom on a permanent basis “I shall be responsible for his/her maintenance and accommodation in the UK throughout the period of leave and any variation of it”.  It then contains further undertakings to the effect that the undertaking will be made available to the Department of Social Security, who may take steps to recover the cost of income support paid to or in respect of the sponsored person from the person giving the undertaking.  A similar undertaking is provided in relation to amounts attributable to any support provided under section 95 of the Immigration and Asylum Act 1999.  The undertaking further refers to the fact that the giver understands that he may be committing a criminal offence and liable to prosecution if, after giving the undertaking, he does not support the person named and income support under the social security legislation or asylum legislation is provided in respect of that sponsored person.  So it is a much more formal version of the earlier form.
16.	The essential argument presented by the claimant in this case is that the undertaking that was in fact given on 18 March 1998 is not an undertaking for the purposes of the Immigration Rules or the statutory provisions that I have cited because it is not contained on an official form and lacks the necessary degree of formality to be considered as an undertaking within the meaning of those provisions.
17.	The submission is that an undertaking within the meaning of section 115(9)(c) means a valid and formal maintenance undertaking; the words “given as a result of the maintenance undertaking” mean “given as a result of a valid and formal maintenance undertaking”.  The same argument, I think, would apply to regulation 21(3(i) of the 1987 Regulations.
18.	Reference is particularly made to the citation of an instruction given by the Immigration Directorate, which is cited in a decision of the Social Security Commissioner No CIS/2816/2002, which provides [with original emphasis] that: 
“Since social security legislation contains separate provisions automatically imposing a legal liability to maintain spouses and children under the age of 16, we do not require written undertakings from the spouses or the parents of young children … . Written undertakings will normally only be required from the sponsors of elderly and other dependent relatives.  The declaration attached to form SET(F) should always be used for such written undertakings. …”
So reliance is based on that, notwithstanding my doubts as to whether that particular form was in force at this particular time.
19.	It is submitted on behalf of the claimant that whether there is a maintenance undertaking is a question of law.  The undertaking must be, in particular, specific in content.  One must bear in mind that the undertaking is not only directed to the entry officer, but also to the Benefits Agency because it denies access to benefits.  It is a document that has legal effect and it should, it is submitted, contain a number of essential matters as highlighted by RON 112 and SET(F).  That is to say, it should provide for an acceptance of liability to accommodate and maintain; the period in respect of that liability must be clearly specified; the sponsor must be informed that the relevant department may seek to recover benefits paid; the sponsor should be informed that he may be liable to prosecution; and, finally, there should be a provision for the undertaking to be certified by the Secretary of State as an undertaking within the meaning of the relevant statutory provisions.  Particular reliance is placed on certification and the evidential requirements of section 178 of the Social Security Administration Act 1992 and section 32 of the Immigration Act 1971.  It is also emphasised that immigration officers must act in accordance with instructions given under the 1971 Act and must accordingly take account of the instruction relating to form SET(F) which I have just cited. 
20.	In response to those arguments, the Secretary of State submits essentially that no particular form is required for a maintenance undertaking of the kind here in question under the statutory provisions and that various decisions, three in number, of the Social Security Commissioners are to that effect and are correctly reasoned.
21.	In my view, this case must first be situated in its correct time frame, as I have already indicated.  The undertaking relied on is dated 18 March 1998.  The claimant entered the United Kingdom on 8 May 1998 and claimed benefit in November 1998, which was awarded from May 1999.  All those events predate the coming into force of the Immigration and Asylum Act 1999. 
22.	It thus seems to me that the correct question is whether the undertaking at the time it was made, 18 March 1998, was “an undertaking given by another person or persons in writing in pursuance of immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation” within the meaning of regulation 21(3)(i) of the Income Support (General Regulations) 1987.  However, I think as I have already said, there is probably little or no difference to the result of this case whether we are under the 1987 Regulations or whether we are under section 115(9) and (10) of the 1999 Act.
23.	There is no prescribed form for any written undertaking.  RON 112 did exist at the time but it was not prescribed by Parliament as a form that must be used.
24.	In my judgment, it is not established that the more precise form, SET(F), which seems to postdate the 1999 Act, existed in 1998, or that there were at that time any precise instructions regarding the use of that form.  Arguments based on the formality now contained in that form or on legislation or instructions later than events with which we are concerned do not, in my judgment, carry much weight.
25.	Does the fact that the undertaking in this case was not on the form RON 112 mean that it is not an undertaking or a maintenance undertaking for the purposes of the 1987 Regulations or the 1999 Act? 
26.	It seems to me there is no doubt in this case that:
(1) The undertaking was given with a view to enabling the claimant to obtain leave to enter the United Kingdom.
(2) The undertaking was a relatively formal document drawn up by solicitors and duly witnessed.
(3) As the tribunal found, the application was for permanent leave to remain in the United Kingdom.  There was no misunderstanding, according to the appeal tribunal, on that point.  The sponsor knew that his mother-in-law was coming permanently, despite the mistaken reference to six months in the declaration itself.  The appeal tribunal found that that was a pure error.
(4) It is plain that leave to enter would not have been granted if the undertaking had not been given (see, in particular, paragraphs 35, 317(i) and (iva) and 320(14) of the Immigration Rules at HC395.
27.	There are at least three decisions by Social Security Commissioners which hold that the fact that an undertaking is not on an official form does not mean that the undertaking is not a maintenance undertaking for the purposes of the legislation.
28.	In CIS/2474/1999, Mr Williams, Commissioner, decided that the fact that an undertaking was not on form RON 112 was not fatal to the issue.  It was an issue of fact in each case whether the document in question amounted to an undertaking for the purposes of regulation 21(3)(i) of the Income Support (General Regulations).  
29.	That decision of 26 August 1999 was followed by Mrs Fellner, sitting as a Commissioner, on 11 October 2002 in CIS/47/2002.  She emphasised in particular, at paragraph 27, that it was a matter of fact, and among relevant considerations were whether the declaration in question was made for the express purpose of securing entry clearance and whether it was treated, in particular by the immigration authorities, as an undertaking for the purpose of the Rules.
30.	Mr Nicholas Paines QC, sitting as a Deputy Commissioner on 8 November 2002, in decision CIS/2816/2002 followed Mr Williams’ reasoning.  He held in particular at paragraph 15 as follows:
“The issue for me is whether the July 1999 document is an undertaking given in pursuance of the immigration rules.  I agree with Mr Williams that the Immigration Rules do not prescribe a form for the undertaking; in my judgment an undertaking will be given “in pursuance of the Immigration Rules” if it is an undertaking to be responsible for a person’s maintenance and accommodation pursuant to rule 35 of the Rules.  The July 1999 document is that.  It contains a declaration - which in the context is equivalent to an undertaking - that the claimant will be maintained and accommodated without recourse to public funds for the duration of her visit.  It refers to “public funds as defined in the Immigration Rules” (the Rules contain a definition of public funds, which includes income support).  It is not disputed that the Home Office relied on it in granting the claimant indefinite leave to enter.”
At paragraph 17 Mr Paines QC goes on:
“It is plainly desirable that such undertakings should be given on form SET(F), which contains salutary warnings about the consequences of entering into an undertaking, and it is understandable that the Directorate’s instructions require its use.  However, those instructions are not part of the Immigration Rules and they do not mean that undertakings in other wording are not given pursuant to the Immigration Rules.  In the present case, moreover, the declaration was in a solemn form prepared by and signed in the presence of a solicitor; it contained a reference to the Immigration Rules and its wording was not such as to leave the claimant’s son in any doubt as to what he was undertaking.”
31.	In my judgment, the three decisions of the Social Security Commissioners which I have cited are sound in law.  It is a question of fact in each case whether the undertaking in question, the document relied on, amounts to an undertaking for the purposes of the relevant legislation.  The fact that it is not on the form in use at the time is not, in my judgment, fatal.  In this particular case it seems to me that the undertaking that was actually given, which I have cited above, is sufficiently formal and definite to constitute an undertaking.  It contains an express undertaking that the claimant will be maintained and accommodated without recourse to public funds.  It is drawn by solicitors and witnessed.
32.	It is undoubtedly the case that the applicant entered the United Kingdom on the basis of that undertaking and was given leave to enter the United Kingdom because the undertaking had been given.
33.	In those circumstances, in my judgment this is an undertaking for the purposes of the relevant statutory provisions.  
34.	The contrary argument would mean that the claimant would have obtained the advantage of leave to enter the United Kingdom on the basis of an undertaking that there was not to be any recourse to public funds, and then would in fact be able to claim support from public funds because of a failure of the formalities.  In my judgment, such a consequence should not normally follow unless it is absolutely clear that that was the intention of Parliament.  It is only if Parliament had expressly required a particular formality to be imperatively followed that I would be prepared to accept such a consequence.
35.	It follows that the principal argument put forward on behalf of the claimant, in my judgment, fails.  It also follows that the claimant is and always was a person subject to immigration control for present purposes.
36.	Two other arguments were briefly put forward.  It was first argued that the appeal tribunal erred in finding that the undertaking of support was valid for longer than six months and was wrong to hold that it lasted throughout the claimant’s stay in the United Kingdom.  The reasoning is said to be defective and the conclusion perverse.  That seems to me to be an issue of fact, not sustainable on judicial review unless the court is satisfied that the finding was indeed a finding to which no reasonable tribunal could come.
37.	The appeal tribunal sets out its reasoning fully, at page 46 of the court bundle, in its decision, and it does not seem to me necessary to cite that reasoning any further.  The tribunal in my view was entitled to reach the finding that it did on that point.
38.	It is finally submitted that there was no evidence that the claimant’s leave to enter was in fact granted on the basis of the undertaking.  I have already intimated that, in my judgment, there is no doubt that that was indeed the case.  That, in my
judgment, is to be inferred from the correspondence with the British High Commission in Islamabad and is also an overwhelming inference from the Immigration Rules read as a whole, particularly paragraphs 35, 317(iva), and 320(14), which I have already cited.
39.	The overall result in this case, therefore, is that the application for judicial review is dismissed.