I am looking for any commissioners ruling on Immigration Asylum Act preventing some one from claiming PC. My client has been awarded AA but DWP will not award her PC as she has not been in the country for 5 years or more, following granting her indefinite leave to remain in the UK. Does she still has to meet the 5 years rule and is she still subject to Imnmigration Control for PC. DWP are saying once she has completed five years stay in the UK she will get her PC.

If her ILR was granted as a result of a maintenance undertaking, she is not entitled to PC for five years from the date of the undertaking or the date of her arrival in the UK whichever is the later. The basic rule is S115(9) of the Immigration and Asylum Act 1999. The rule does not apply to AA.

If the person who gave the undertaking dies she will be entitled to PC, but the fact that that person is unwilling, or unable, to support her is irrelevant.

It is worth checking that there has been a maintenance undertaking. This is not necessarily the same as having a sponsor for immigration purposes. There is a recent caselaw, which I don't have to hand, which says that an undertaking is a definite promise to support, not just an indication that someone is willing to support.

See Ahmed v Secretary of State for Work and Pensions 2005.

Available on the Commissioners website.

Ahmed v SoS for Work and Pensions, available at

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2005/535.html&query=%5B2005%5D%2BEWCA%2BCiv%2B535&method=titleall

Just learned how to do this. Hope it works!