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Neutral Citation Number:	2015 UKUT 505 AAC
Reported Number:
File Number:	CPC 4976 2014
Appellant:	SJ
Respondent:	Secretary of State for Work and Pensions (SPC)
Judge/Commissioner:	Judge N J Wikeley
Date Of Decision:	14/09/2015
Date Added:	30/09/2015
Main Category:	Residence and presence conditions
Main Subcategory:	persons subject to immigration control
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2016] AACR 17. Residence and presence conditions – persons subject to immigration control – indefinite leave to remain given following successful immigration appeal under Rules and Article 8 – R(PC) 1/09 distinguished In 2003 the appellant, an Indian citizen, began visiting her family in the United Kingdom (UK). Initially her son-in-law sponsored her but, following his death, her daughter entered into a fresh sponsorship undertaking on 1 September 2009. The appellant then applied for indefinite leave to remain (ILR) as a dependant of her daughter which the Home Office (HO) refused. The First-tier Tribunal (Immigration and Asylum Chamber) upheld the appellant’s appeal under the Immigration Rules and on Article 8 human rights grounds. In June 2010 the HO granted the appellant ILR whereupon she claimed state pension credit. The Department for Work and Pensions refused that claim because it was made within 5 years of her daughter's sponsorship undertaking. The First-tier Tribunal (Social Entitlement Chamber) (SEC F-tT) upheld that decision, holding that she was subject to the sponsorship undertaking and therefore a “person subject to immigration control” within section 115(9) of the Immigration and Asylum Act 1999. The appellant argued before the Upper Tribunal (UT) that she had ILR on Article 8 grounds. The underlying question was whether or not the appellant was at the material time a “person subject to immigration control” as that term was both defined by legislation and understood by reference to the case law: R(PC) 1/09 and CSPC/379/2009. Held, disallowing the appeal, that: 1. the SEC F-tT was perfectly entitled to conclude that the Immigration and Asylum Chamber Tribunal had allowed the immigration appeal first under the Immigration Rules and then secondly on human rights grounds. The only fair reading of the decision as a whole was that the appeal was allowed under the Immigration Rules and in particular paragraphs 317 and 318 before turning at the end to the human rights grounds (paragraphs 17); 2. the HO’s decision to grant indefinite leave to remain could only sensibly be read as such a grant on the basis of paragraph 318 of the Immigration Rules. The irresistible inference was that the June 2010 decision by the Secretary of State for the Home Department following the Immigration and Asylum Chamber Tribunal’s decision was taken under the Immigration Rules (paragraph 23); 3. at first sight the appeal fell between R(PC) 1/09, where leave was granted only on human rights grounds and outside the Immigration Rules, and CSPC/379/2009, where leave was granted solely within the Immigration Rules with no reference to Article 8 criteria. However, it was clear that the Immigration and Asylum Chamber Tribunal’s decision and the HO’s subsequent actual grant of ILR had been premised on the sponsorship undertaking entered into by the appellant’s daughter: the decision in CSPC/379/2009 was followed and R(PC) 1/09 distinguished (paragraph 27).
Decision(s) to Download:	[2016] AACR 17ws.doc