THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

Before:		Douglas J May QC

Attendances:

For the Appellant:  Miss Haldane, Advocate instructed the Office of the Solicitor to the Advocate General

For the the Respondent:  Mr Fernie, City of Glasgow Council

The appeal is allowed.

The decision of the tribunal given at Glasgow on 15 April 2009 is set aside.

The Judge of the Upper Tribunal gives the decision he considers appropriate in light of the findings in fact set out in the Reasons.

The claimant is not entitled to State Pension Credit from the date of the claim decided on 3 January 2009.

REASONS FOR DECISION

1.	The claimant was born on 3 April 1932.  She came to the United Kingdom on 2 February 2007.  Her country of origin is the Republic of India.  She had lived with her daughter in Austria up to 23 October 2006.  She made a claim for pension credit on 25 January 2008.  That claim was refused.  That refusal was made under the Immigration and Asylum Act 1999 Part XI Section 115(1) and (9)(b).  That was because at that time she had leave to enter and remain in the United Kingdom subject to the condition that she did not have recourse to public funds.  She appealed against that decision.  The claimant was granted indefinite leave to remain in the United Kingdom on 6 February 2008.  The claimant made another claim for pension credit which was refused on 7 January 2009.  That decision was intimated to the claimant on 7 January 2009 and was in the following terms:

		“I am writing to inform you of the outcome of your application for Pension Credit.  Having taken into account all of your circumstances I have decided that you are not entitled to Pension Credit from 06/02/08.

	This is because, as a sponsored immigrant you are excluded from receiving Pension 	Credit under section 115 of the Immigration and Asylum Act until:

•	your sponsor dies, or
•	the later of the following:
o	five years after you first entered the UK, or
o	five years after the sponsorship agreement was signed
Our records show your sponsorship agreement was signed on 06/02/08.”
In the event the sponsorship agreement appears to have been signed by her son on 17 July 2007 and is recorded at page 42.  The claimant appealed against the decision intimated to her on 7 January 2009.  

2.	Both decisions were the subject of reconsideration but the result in relation to entitlement remained the same.   The reconsiderations are set out at page 46 of the bundle and page 39 of CSPC/380/09, which is the Upper Tribunal reference for the case relating to the decision on the claim of 25 January 2008.  The last paragraph of these reconsideration decisions are in identical terms and contain factual information in the following terms:

	“Reply has now been received today the 7th of Jan 09 from Legal Group which shows that customer was granted indefinite leave to remain in the UK on appeal and that this was granted under Rule 317 which means that customer was sponsored and as such has no recourse to public funds until she has been resident in the UK for 5 years.  I therefore uphold original decision of 1/4/08 that customer has no entitlement to Pension Credit.  As advised in attached email “when Rule 317 applies the individuals are not entitled to benefits for a five year period which is from the later of date they entered GB or the date the undertaking was signed.”  Having emailed to request date undertaking was signed, and this has been confirmed as 17/7/07. Customer therefore has no entitlement to Pension Credit under The Social Security (Immigrants and Asylum) Consequential Amendments Regulation of 2002, Reg 2(1) prior to 16/7/12.”

3.	The claimant’s appeals against the two decisions were heard by the same tribunal at the same time on 15 April 2009.  They were successful.  Each of the decisions were said to have been revised with reference to Commissioner’s decision CPC/1872/2007.  The statement of reasons for both decisions by the tribunal were identical.  In the reasons in both decisions it is said:

	“The tribunal accepted that the Secretary of State had failed to show that leave to remain indefinitely in the United Kingdom was not given as a result of a maintenance undertaking. 

	The burden of proof is on the Secretary of State to show that the claimant fell within the scope of an exclusion from entitlement (following CIA/1607/2004) but also because, in accordance with the approach of Baroness Hale of Richmond in Kaya the Dept for Social Development (2004) UKHL 23 [2004] WLR 1392, 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.

	Having considered Section 115(9) of the Immigration & Asylum Act 199 the tribunal reached the decision outlined above.”

4.	The Secretary of State has appealed against both decisions.   The Upper Tribunal reference for the decision made in respect the decision intimated on 7 January 2009 is CSPC/379/2009 (the instant case) and in respect of the claim of 25 January 2008, CSPC/380/2007.

5.	Mr Fernie has properly conceded that the decisions of the tribunal erred in law in both cases upon the basis that the reasons given for their decisions were inadequate.   I accept that.  In the reconsideration decisions it is clear that the Secretary of State had investigated the position and there was evidence contained therein that the claimant had been granted indefinite leave to remain in the United Kingdom under Rules 317 of the Immigration Rules.  That evidence was material but not dealt with by the tribunal in the sense of determining whether the tribunal accepted it or not.  They simply said that the Secretary of State had not proved what he sought to establish.   In the circumstances, their decision erred in law.  I also consider that the tribunal erred in law in the instant case as in finding in fact 4 the tribunal did not identify properly the decision under appeal to it.  Mr Fernie properly accepted that even on his argument the claimant was not entitled to State Pension Credit until 6 February 2008 because until she was given indefinite leave to remain it was a condition of her leave to remain in the United Kingdom that she did not have recourse to public funds and accordingly was excluded from benefits by virtue of Section 115(1),(3) and (9)(b).  The tribunal did not have regard to that when allowing the claimant’s appeal in relation to the claim of 25 January 2008 in its entirety.  

6.	Miss Haldane also submitted that CPC/1872/2007 reported as R(PC)1/09 was erroneously relied upon by the tribunal in reaching their decision because the facts of this case were materially different to those of the present case.  It was her submission that in that case the decision granting leave to remain was one which was made outwith the immigration rules.  In R(PC)1/09 the Commissioner determined that proof of the considerations upon which the discretionary grant of leave to remain indefinitely, including proof of any sponsorship agreement, was material.  In that case the claimant’s application for leave under Rule 317 was refused because the claimant had supported herself financially and had lived with her husband when she was in China and because of the time when her application was made her husband was still alive.  The claimant in that case got the benefit of the failure of the Secretary of State to demonstrate that the immigration decision maker took into account sponsorship when exercising his discretion.  Miss Haldane submitted that it was quite clear that in both cases before the tribunal having regard to what was stated in the reconsideration decisions, the claimant was given indefinite leave under Rule 317 after 5 February 2008.   Despite Mr Fernie’s submission to the contrary that R(PC)/1/09 was applicable to both cases before the tribunal I consider that Miss Haldane’s submission is well founded and the tribunal erred on these grounds also.  The tribunal should have taken account of the fact that the decision in R(PC)1/09 was made in respect of facts which was materially different to that of the claimants and could not be relied upon for the purposes of determining the appeal before them.

7.	Having determined that the tribunal’s decision errs in law the question arose as to the disposal of these appeals.  Miss Haldane’s submission was that I could remake the decision and refuse the claimant’s claims for Pension Credit.  Mr Fernie, on the other hand, submitted that I should remit the cases to a freshly constituted tribunal for a rehearing of both appeals.

8.	Standing Mr Fernie’s concession, which I accept, determine that the claimant was not entitled to Pension Credit up till 6 February 2008.  The essence of Mr Fernie’s argument for the periods after that date in respect of both claims was that there was no causal connection between the sponsorship agreement and the decision on 6 February 2008 to allow the claimant indefinite leave to remain in the United Kingdom.  Whether there was such a causal connection was in his submission, a fact which could only be determined by a freshly constituted tribunal.   He directed me to the report of the interview with the claimant and her son recorded at page 24 of CSPC/380/09 where it is said that upon the granting of the indefinite leave to remain there were no restrictions placed on the claimant’s visa.

9.	Miss Haldane on the other hand submitted that the claimant’s application for leave to remain was dealt with under the immigration rules.  There was a sponsorship agreement.  The circumstances of the claimant fell squarely within the criteria set out in Rule 317 in sub-paragraphs (i) to (vi).   She submitted that the evidence contained in the last paragraph of the reconsideration decisions demonstrated the reliance upon Regulation 317 when granting indefinite leave to remain.  There was no suggestion in the case of leave having been granted on any other basis within the immigration rules or on an exceptional discretionary basis as was the case in R(PC)1/09.   The absence of a stamp on the claimant’s visa was not material.  Mr Fernie did not have any documentation relating to the indefinite grant of leave granted to his client.   It was not asserted by him that leave was made outwith the immigration rules or any other rule as opposed to rule 317.  

10.	In the absence of any evidence to the contrary I accept Miss Haldane’s submission and in particular that as a matter of fact the claimant’s leave to remain indefinitely had been granted upon the basis of the claimant satisfying the requirements of Rule 317 of the immigration rules and that the claimant’s personal circumstances fell within the criteria set out in that rule.  In light of that finding I find that R(PC)1/09 has no application  to the appeals before me because the circumstances of that case were different in respect that leave was granted to the claimant in that case outwith the rules and on an exceptional basis and that in these circumstances whether the exercise of the discretion included consideration of any sponsorship was material.   As can be seen above that is not the position in the appeals before me.

11.	I do not consider that any purpose would be served by remitting the case to a freshly constituted tribunal to determine a factual issue which I have been properly able to determine for myself.   Having determined that issue I consider that the claimant is excluded from entitlement to State Pension Credit from 6 February 2008 until 17 July 2012 by virtue of Section 115 Sub-Sections (1), (3) and (9)(c) and the Social Security (Immigration and Asylum) Regulations 2000 Schedule Part 1, Paragraph 3(b).  I also hold in CSPC/380/2009 that the claimant was not entitled to State Pension Credit in respect of the claim of 25 January 2008 from that date until 5 February 2008 by virtue of Section 115(1), (3) and (9)(b) of the Immigration and Asylum Act 1999.

(Signed)
DJ MAY QC
Judge of the Upper Tribunal
Date: 15 January 2010