Unimpressed by the current application forms published by the UK Border Agency, the Upper Tribunal advised the Agency to publish entry clearance application forms to include questions designed to elicit the information on calculation reflecting the comparison between the applicant’s and sponsor’s combined projected income if the applicant for entry clearance were in the UK and the amount required to provide the maintenance at an adequate level.
The Upper Tribunal also recommended that the decisions of entry clearance officers include such a calculation to assist the tribunals and the courts in entry clearance cases.
The decision focused on the interpretation of paras 6A to 6C of the Immigration Rules which deal with recourse to public funds in immigration applications.
6A … a person (P) is not to be regarded as having… recourse to public funds because P is … reliant in whole or in part on public funds provided to P’s sponsor unless, as a result of P’s presence in the United Kingdom, the sponsor is … entitled to increased or additional public funds.
6B … a person (P) shall not be regarded as having recourse to public funds if P is entitled to benefits specified under section 115 of the Immigration and Asylum Act 1999.
6C A person (P) making an application from outside the United Kingdom will be regarded as having recourse to public funds where P relies upon the future entitlement to any public funds that would be payable to P or to P’s sponsor as a result of P’s presence in the United Kingdom
The Upper Tribunal read 6A as saying that all that counts as recourse to public funds is increased benefit as a result of P’s presence and even that does not count if it arises as the result of the matters referred to in para 6B. 6C applies to applications made outside the UK and does not allow increases in benefit under the provisions.
For maintenance purposes, the formula used in the entry clearance applications remains:
A minus B is greater than, or equal to, C
A is the projected income
B what needs to be spent on accommodation and
C the income support (or equivalent) figure (which we term in this decision “the benefit threshold”)
The Home Secretary introduced new Immigration Rules to take effect in relation to applications made on or after 9 July 2012. Under the new rules, for some categories of applicant, in assessing maintenance a number of the sources of income such as child benefit, working tax credit and child tax credit, will no longer be eligible to be taken into account. However, for other categories the maintenance requirements are unchanged. This decision will also apply in the process of determining applications lodged before 9 July 2012 and appeals in relation to them.