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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> AK & Others (Long-term third party support) Bangladesh [2006] UKAIT 00069 (5 September 2006) URL: https://www.bailii.org/uk/cases/UKIAT/2006/00069.html Cite as: [2006] UKAIT 00069, [2006] UKAIT 69 |
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AK & Others (Long-term third party support) Bangladesh [2006] UKAIT 00069
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 8 August 2006
Date Determination notified: 5 September 2006
Before
Between
1. AK 2, HR 3. TR |
APPELLANT |
and | |
Entry Clearance Officer, Dhaka | RESPONDENT |
For the Appellants: Mr B Ali, instructed by Messrs Kuddus, Solicitors
For the Respondent: Mr C Avery, Presenting Officer
DETERMINATION AND REASONS
Whilst the evidence needed to establish the availability of short term third party support may be satisfied comparatively readily by satisfactory evidence of the genuineness of intent and the present existence of sufficient surplus funds, a long term commitment to third party funding, especially to one who is neither an ascendant nor descendant relative, requires more detailed and broader evidence and enquiry, and more thorough assessment A judge would need to be satisfied, from the perspective of the circumstances at the date of the Respondent's decision, that in the long term, whatever the third party's own future family and other commitments might be, he would be willing and able to give funding priority to supporting an appellant, in effect treating him or her or her as equivalent of one of his own dependants.
History of the Appeal
As evidence of your Sponsor's ability to maintain you he has submitted evidence of Third party sponsorship from a relative. I have taken note of the third party's economic and personal circumstances. At present the third party Sponsor has his wife and child to look after and no doubt he has his own commitments and financial obligations which are likely to be supplemented in the future. Under the circumstances, I feel that although he may be able to support you and your dependants in the very short-term he may not be able to adequately provide you with maintenance in the long run. Your husband's only source of income is from state benefits. I am therefore not satisfied that you and any dependants can be adequately maintained without recourse to public funds.
You have submitted an EHO letter from local authority confirming that the proposed accommodation is fit for human habitation and will not cause overcrowding. I am content with his letter. However, considering the fact that your husband is in receipt of state benefits, you failed to submit any satisfactory evidence of rent receipts or any confirmation that he is not in receipt of housing benefit. In view of these factors I cannot be satisfied that you will be accommodated without recourse to public funds.
"Re AK Dob: 19/01/1948 Bangladesh
Notice of Appeal
We write to inform you that we act for the above named client in connection with his [sic] immigration matter.
Please find enclosed:
1. notice of appeal
2. grounds of appeal
3. letter from third party Sponsor
4. letter from employer
5. bank statements from Abbey National
6. proof of housing benefit award letter from council
As you will see from the enclosed documentary evidence that the grounds upon which application for entry clearance has been refused has [sic] now been satisfied and met by the Sponsor and the third party Sponsor.
We suggest in order to save public funds and court time you concede the issue of refusal under paragraph 281 and 297 of the HC 395 as amended and issue our client entry clearance to the UK as the reasons for refusal has [sic] been challenged in the grounds of appeal and the further documents provided herein.
Kindly acknowledge the safe receipt of the same. We look forward to hearing from you as to when our client can collect her entry clearance visa from the British High Commission. Please note that if this matter was to proceed to a hearing in the Immigration Appellate Authority our client Sponsor shall defend and argue that he had tried his best to settle this matter without having to go to court."
1. ….. They [the three Appellants] appeal collectively from the decision of the Respondent dated 9 August 2004 to refuse their several applications for entry clearance to the United Kingdom for settlement.
13. Notice of appeal, in the name of the Appellant but clearly intending to refer also to Humayun and Tanbir, was signed on 30 September 2004 by [Mr D] and by Kuddus Ali, their Solicitor….
62. The Respondent elected to consider the applications:-
(a) of the principal Appellant under paragraph 281 as the wife of her husband/Sponsor who is settled in the UK; and
(b) of Hamayun and Tanbir separately from their Appellant mother by reference to paragraph 297, both boys being under the age of 18 at the date of application.
64. One can approach this appeal by alternative routes:-
(a) by considering the applications separately under paragraphs 281 and 297, as the ECO did: or
(b) by treating Humayun and Tanbir as dependants of their mother/ the principal Appellant and thus considering all the Appellants by reference to paragraph 281.
65. The paragraph 64(b) approach can be applied only if the evidence shows that Humayun and/or Tanbir were indeed independent, and that their dependency was upon their mother. If the answer to both questions is positive, only then can either or both of the boys be considered under paragraph 281.
66. Does this distinction make any material difference? The answer is "yes", because of the amendment to paragraph 297 by CM4851 of 2 October 2000.
66.1 Paragraph 297 restricts the provider of accommodation and maintenance to "the parent the child is seeking to join". The wording in paragraph 297 as amended is effective to exclude third party support.
66.2 by contrast the wording in paragraph 281 requires there to be "adequate accommodation" and an ability to maintain "the parties and any dependants". Paragraph 281 does not exclude third party support.
77. In my judgement all three appeals are properly determinable solely by reference to paragraph 281. It is unnecessary to consider the appeal of Humayun and Tanbir separately by reference to paragraph 297.
91. Whereas the Sponsor hitherto has been able to meet all his expenses out of the public funds which he receives, he has candidly put figures before the court which show that he will certainly not be able to do so if the three Appellants joined his household, at least not without dipping into his Abbey savings account.
97. … In my judgment the income of Mr Malik, the third party, is amply sufficient to cover not only all the costs of his own household, but also to supplement the income of his uncle, the Sponsor, thereby ensuring that the Sponsor will not be entitled to increased or additional public funds by reason of the Appellants' arrival in United Kingdom.
105. My decision would be different if the applications of the two sons fell to be considered under paragraph 297, because of the decision in [AA (Bangladesh) [2005] UKAIT 00105 ]. Under paragraph 297 the provision of accommodation and maintenance is restricted to the Sponsor whose household the applicants are seeking to join, and clearly the Sponsor alone is not able to accommodate and maintain the Appellants without additional recourse to public funds
1. In paragraph 64 he wrongly concluded that the appeal could be approached by alternative routes. Paragraph 281 related only to spouses. Children, including dependent children, fell to be considered under paragraph 297, and on the facts of this appeal under sub-paragraph 297(i)(c).
2. Thus he erred in taking into account in respect of maintenance and accommodation for the two children, the availability of third party support.
3. He also erred in his interpretation of paragraph 281(v) with regard to the First Appellant. On its proper construction and in line with the guidance in AA (Bangladesh) [2005] UKAIT 00105, the parties must be able to maintain themselves without third party support. As he concluded in paragraphs 91 and 105 of the determination, they were unable to do that.
4. With regard to the finding that accommodation for one of the boys would be provided by the third party Sponsor, there was no evidence upon which this finding could be based and this conclusion was entirely speculative
1. The Appellants' appeal should be allowed for the reasons given by the Immigration Judge in his determination.
2. The Appellants' appeal should be allowed in respect of human rights because of unlawful discrimination against the Appellants who, in appealing against refusal of entry clearance, were precluded from relying upon post decision evidence by virtue of section 85(5) and were thus disadvantaged by reference to in-country appellants.
The position of the Second and Third Appellants
The scope of paragraph 281 and its relationship with paragraph 297
SPOUSES OR CIVIL PARTNERS OF PERSONS PRESENT AND SETTLED IN THE UNITED KINGDOM OR BEING ADMITTED ON THE SAME OCCASION FOR SETTLEMENT
Requirements for leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement
281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(i) (a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or
(b) the applicant is married or the civil partner of to a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and
(ii) the parties to the marriage have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.
LEAVE TO ENTER OR REMAIN IN THE UNITED KINGDOM AS THE CHILD OF A PARENT, PARENTS OR A RELATIVE PRESENT AND SETTLED OR BEING ADMITTED FOR SETTLEMENT IN THE UNITED KINGDOM
Requirements for indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom.
297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:
(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
(a) both parents are present and settled in the United Kingdom; or
(b) both parents are being admitted on the same occasion for settlement; or
(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing; or
(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried, and has not formed an independent family unit; and
(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and
(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and
(vi) holds a valid United Kingdom entry clearance for entry in this capacity.
The human rights issue
The First Appellant's position
"23. We note the current paragraph 297(v) deals solely with maintenance unlike its predecessor 297(iv). It requires that the applicant for entry clearance "can, and will be maintained adequately by the parent (emphasis added) the child is seeking to join…., without recourse to public funds". We are satisfied that the use of the definite article limits the class of person who can provide the maintenance. We regard the formulation as pointing clearly to a requirement that where a child is joining a parent under paragraph 297 it is that parent who must maintain that child. Third party support by relatives or otherwise cannot satisfy the rule as it now is. Arman Ali cannot be relied on for the proper interpretation of Rule 297(v) of the Immigration Rules."
1. I wish to support my maternal uncle in his application for his wife and two children to come to the United Kingdom for settlement. My uncle is unable to work and is not medically fit to work. I am prepared to maintain and pay for the accommodation cost of my auntie, and my cousin brothers.
2. I am willing and able to support my auntie and my two cousin brothers during their stay in the UK, without recourse to public funds.
3. I work for the London Borough of Tower Hamlets as a principal officer and earn £28,758 per year and have sufficient income to maintain my auntie and her children during their stay in United Kingdom.
4. I have savings of £3000 and over in my bank account and I have other savings besides this ie sufficient income to maintain and accommodate my auntie and family in the UK during a visit without seeking assistance from public funds.
30. [The third party] and his wife, live at [London]. They have one child only who was born on 15 February 2004.
31. The third party is employed by the London Borough of Tower Hamlets on a permanent contract as a senior housing officer at £30,423 per annum.
32. His wife is also employed by the London Borough of Tower Hamlets as a housing officer at a salary of £23,000 p a.
33. The third party and his wife have been willing from the outset of the entry clearance applications to maintain his uncle's family upon her arrival in United Kingdom. His mother was the Sponsor's sister. Given the amount of his and his wife's joint income, he confirmed that he would have no difficulty in supporting the Appellant in the long term. He had savings of £20,000. As evidence thereof the third party produced his HSBC statements for his current and deposit accounts. The balance at 26 October 2005 stood at £22,085 .92.
93. In considering the third party evidence, the Court cannot take into account the income of [the third party's wife] because there is no evidence that her availability as a co-Sponsor was ever in contemplation at the date of decision.
96. The third party on the other hand was named as a provider of maintenance and accommodation costs on page 10 of each of visa application and on page 13 of the Appellant's application.
97. The third party attended the hearing and gave oral evidence, speaking to the pay slips and bank statements referred to above. I found the third party to be very genuine and credible in his offer to co-sponsor the Appellants. His wife is working. They have one child only. In my judgment the income of the third party is amply sufficient to cover not only all the costs of his own household, but also to supplement the income of his uncle, the Sponsor, thereby ensuring that the Sponsor will not be entitled to increased or additional public funds by reason of the Appellant's arrival in United Kingdom.
1. There were no extant appeals by the Second and Third Appellants.
2. The First Appellant's appeal is dismissed in respect of the Immigration Rules and Article 8.
Signed Dated 29 August 2006
Senior Immigration Judge Batiste