old story - client has been wrongly refused benefits as DWP insist his family reunion visa says 'sponsor' on it so he has no recourse to public funds. Of course it isn't endorsed with 'no recourse' , they are merely and wrongly confabulating, but they won't back down...so full appeal it is.
i seem to recall there is case law that says it's down to them to chase the home office and get proof of non-entitlement, but can't track it down. Does anyone have the relevant link?

many thanks
c

Kerr (AP) (Respondent) v. Department for Social Development (Appellants) (Northern Ireland) (2004) HL, particularly the following from Baroness Hale.

“62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.

63. If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, "a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn." The same should apply to information which the department can reasonably be expected to discover for itself”.

that's the one - very many thanks!

there's a link here to a 2005 DMG memo which clarifies the issue, which might help.

http://www.dsdni.gov.uk/dms_vol4_47.doc

helps hugely. very many thanks
C

A bit off the burden of proof issue....

Just to be clear, I think that some of the problem may be that the DWP are mixing up terms.

The issue is whether the claimant is a "person subject to immigration control" (sec 115(9) I&A Act 1999).

One way of being so subject is having permission to be in the UK granted to you with a condition that you are not to have recourse to public funds.

An entirely different way of being subject is where you have leave to remain that was granted because someone gave an undertaking to maintain and accommodate you (ie sponsored you).

The DWP seem to be mixing up the two distinct concepts.

However, if the client was given leave as a result of the maintenance undertaking then although that leave may well not have as a condition that the claimant has no recourse to funds (ie he will not be in breach of immigration conditions if he claims benefits) it still means he could be subject to immigration control. As such a person he cannot get benefits... until the later of 5 years residence from date of entry to UK or
5 years residence from when undertaking given.