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Neutral Citation Number:
Reported Number:	R(PC)1/09
File Number:	CPC 1872 2007
Appellant:
Respondent:
Judge/Commissioner:	Judge E. A. L. Bano
Date Of Decision:	22/07/2008
Date Added:	28/07/2008
Main Category:	Residence and presence conditions
Main Subcategory:	persons subject to immigration control
Secondary Category:	Residence and presence conditions
Secondary Subcategory:	persons subject to immigration control
Notes:	Presence and residence conditions – persons subject to immigration control – whether for Secretary of State to show that leave to remain in the United Kingdom given as a result of a maintenance undertaking The claimant made an application for indefinite leave to remain in the United Kingdom as her daughter’s dependant under Immigration Rule 317, supported by a sponsorship undertaking given by her daughter in which she undertook to be responsible for the claimant’s maintenance and accommodation. The application was refused because the claimant did not satisfy the conditions for the grant of leave under that Rule, but she was later, on compassionate grounds, granted indefinite leave to remain outside the immigration rules. She was initially awarded pension credit but the decision was subsequently revised on the basis that it had been made in ignorance of a material fact, ie the existence of the maintenance undertaking. The claimant appealed, arguing that the revision decision had been made in the belief that she was not allowed recourse to public funds, despite there being no express stipulation to that effect. The tribunal upheld the Secretary of State’s submission that the basis of her grant of leave was her daughter’s sponsorship undertaking and that “outside the rules” did not mean that she was not subject to immigration control. The claimant appealed. The issue before the Commissioner was whether she was a person subject to immigration control under section 115(9) of the Asylum and Immigration Act 1999 because she had been given leave to remain as a result of a maintenance undertaking. Held, allowing the appeal, that: 1. the evidence in this case was insufficient to establish whether the maintenance undertaking had been a factor in the decision to grant the claimant leave to remain, in accordance with the test in CIS/3508/2001, and the causal connection could not be inferred where the decision to grant leave was outside the immigration rules and so did not depend on conditions as to the provision of accommodation and maintenance by a relative (paragraphs 12 to 15); 2. it was for the Secretary of State to show that the maintenance undertaking was a factor in the decision to grant leave, not only because the burden of proof was on the Secretary of State to show that a claimant fell within the scope of an exclusion from entitlement (following CIS/1607/2004), but also because, in accordance with the approach of Baroness Hale of Richmond in Kerr v Department for Social Development [2004] UKHL 23, [2004] 1 WLR 1372, (reported as R 1/04 (SF)), it was reasonable to expect the Secretary of State rather than the claimant to investigate what considerations had in fact weighed with the immigration decision-maker in granting the claimant leave to remain (paragraphs 16 to 18); 3. the Secretary of State had made no attempt to establish the weight given to a sponsorship undertaking in granting leave to remain outside the immigration rules either generally or in this particular case and the issue of whether section 115(9) of the Immigration and Asylum Act 1999 applied to the claimant had therefore to be decided against the Secretary of State and in favour of the claimant (paragraph 19). The Commissioner on the basis of his own findings of fact substituted a decision that the claimant was not a person subject to immigration control and was therefore entitled to state pension credit.
Decision(s) to Download:	R(PC) 1-09 bv.doc