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Maintenance without recourse to public funds

Maintenance without recourse to public funds

I said some time ago that I would do a post on this subject and here it is…

The maintenance requirement is one of the key tests in the immigration rules, and it applies to all categories of immigrant except refugees and their families.

To meet the maintenance rule a person must show that he or she can be adequately maintained without recourse to public funds. ‘Public funds’ is given a very specific meaning by rule 6 of the immigration rules and it is therefore only the benefits that are listed at rule 6 that count as public funds for the purposes of the rules. There are some benefits that might be assumed to be included that actually aren’t, such as education, health care and contributory benefits, such as incapacity allowance. In addition, it is only the claiming of additional benefits that should concern an entry clearance officer. If the UK sponsor is already in receipt of benefits but the immigrant can show independent means such as savings or, probably, an ability and intention to work in the UK, the application should be granted (see rule 6A).

The Home Office and UK Visas give no clear guidance to their caseworkers on what the rules mean by ‘adequate’. Generally, though, the courts will be satisfied that maintenance is adequate if the income of the immigrant will be equivalent to that of a person receiving income support and associated benefits, such as housing benefit, council tax relief and so on. Current and past benefit levels can always be checked at Rightsnet.

One of the main reasons that applications for entry clearance are refused is lack of evidence. Most people don’t expect to be accused of lying and forging documents, but this is actually the starting point for entry clearance officers at the posts with the highest refusal rates, like Dhaka, Islamabad and Accra. If an assertion is made that a person has income, that assertion will need to be proven – in detail. What is the source of the funds? If land or a business, what proof of ownership is available and on top of that what proof is there of rental or business income?

As an aside, entry clearance officers will often require an applicant to disprove a negative – which is impossible, of course. How can you prove that you do not have an intention to remain in the UK? How can you prove that this bank account statement is not forged? How can you prove that this deposit into your account is not borrowed?

If the immigrant will be allowed to work once inside the UK then this can be counted towards adequacy of maintenance. Spouses are allowed to work, for example, but visitors are not. Students are a special case, as they are allowed to work 20 hours per week during term time and full time during vacations, but any such income is not allowed to be considered when assessing whether income is adequate in an immigration sense.

Evidence of ability to get a job will be essential if a person is seeking to rely on their capacity to work once inside the UK. For example, English language skills, a good work history and employer references will all be helpful.

All this, and also pray that the Entry Clearance Officer is in a good mood.

Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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