I have a query for a client who was sponsored when she came to the UK by her husband. Only been in UK a couple of years (ie under 5) and have split up. Cl refused claim to IS as considered here in UK under a written undertaking to support from her husband.

In CPAG current edition (see page 1413-1414) it states that the DWP often approach these cases incorrectly by presuming an informal sponsorship is the same as a written undertaking. The former would not be barred from an IS claim, the latter would be.

In my client's case, it was her husband who sponsored her and CPAG suggests this is unlikely to be a written undertaking. There is no evidence of what it is in the papers, and DWP told client they would contact Home Office but apparently no reply yet.

Seeking to argue that in her case this is not a written undertaking.

I am aware of a post here:
http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=103&topic_id=2662&mode=full

which dealt with a similar query but in that case it was a father and son and was a written undertaking. CPAG suggests with partner's it is not likley to be such.

The legislation DWP are using (reg 115 of the Immigration & Asylum Act 1999) does not specifically state what a written undertaking would take the form of (CPAG mentions some types of immigration forms that would be used).

Does anyone have any experience of such cases and how I should continue with this appeal? This is my first experience of this kind of case.

It is very unlikely that a spouse would be required to provide an undertaking. Undertakings are usually used for relatives other than spouses, most commonly elderly parents coming to join adult children (but there are other situations).

Spouses are usually admitted for two years, with a no public funds condition. At the end of the two years they should apply for indefinite leave to remain, which is usually granted reasonably easily provided the marriage is continuing and there has not been recourse to public funds.

I would be very surprised if your client is subject to an undertaking. Her husband is likely to have "sponsored" her by providing evidence that he was capable of supporting her. An undertaking is a clear promise to support, not simply a statement that you are capable of supporting. In all probability the IS refusal is wrong, at least for the reasons given.

There is no set format for an undertaking. Relatives other than spouses apply for ILR on a SET(F) form. This has a standard undertaking, but it is possible to give an undertaking without using this form. SET(F)is available here:

http://www.ind.homeoffice.gov.uk/6353/11406/setf270506.pdf

The standard undertaking is on page 18. The actual undertaking is the small print at the bottom above the signature.

It is very unlikely that a spouse would be covered by an undertaking. You need to look at your clients passport. If she has been here more than 2 years she should have applied for ILR and her passport should be endorsed with this. If she has been here less than two years she is almost certainly covered by a no public funds condition and has no entitlement to IS. If she has been here more than 2 years but has not applied for ILR, she is likely to be an overstayer and needs immigration advice immediately.

Thanks Keith. Will look in to that.

There is no indication in papaers of DWP considering whether cl was given sponsorship or an undertaking (no document to support undertaking provided).

On immigration status cl has indicated to us that she has ILR, but we only have her word. I'll reinforce its importance to cl.