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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> NM (Disability discrimination) Iraq [2008] UKAIT 00026 (25 March 2008) URL: https://www.bailii.org/uk/cases/UKIAT/2008/00026.html Cite as: [2008] UKAIT 00026, [2008] UKAIT 26 |
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NM (Disability discrimination) Iraq [2008] UKAIT 00026
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 16 November 2007
Date Determination notified: 25 March 2008
Before
Immigration Judge M F Parkes
Between
NM | APPELLANT |
and | |
THE ENTRY CLEARANCE OFFICER, AMMAN | RESPONDENT |
DETERMINATION AND REASONS
A person who cannot meet the requirements of the Immigration Rules is unlikely to be able to show that the decision was contrary to the Disability Discrimination Act 1995 (as amended) by reason of the sponsor's disability or perhaps at all.
"3. The appellant states the sponsor's income is higher than the minimum. However, the level of income support and Disability Living Allowance for the sponsor has been assessed according to his individual need. The bank statements provided with the application showed reliance on additional funds and an account run down to just a few pounds. As such he has little disposable income to support an additional adult regardless of whether his income is deemed officially to be higher than the 'minimum'. With this appeal, the appellant has now submitted up to date accounts. These merely confirm that the sponsor spends his entire income and is still dependent on additional funds — I note the two unexplained deposits each of £200 into the account on 27th and 28th March for example. I am not satisfied still that the sponsor can accommodate [meaning, apparently, "maintain"] the appellant without further recourse to public funds.
4. The appellant states I have failed to take account of third party support on offer to the appellant. However, there is no indication of any third party sponsorship whatsoever. Even if there were, third party offers are unenforceable and often made purely to facilitate an application. A third party can withdraw their support at any time. Ultimately the responsibility lies with the sponsor to maintain his wife adequately."
"The parties will be able to maintain themselves and any dependents adequately without recourse to public funds".
"Despite the job offer…, I am not satisfied that the appellant would immediately find work. [The perspective employer] did not attend at court, there was no indication in his letter as to how long the job offer would be open and, indeed, I do not know whether or not the position had been filled by the time of the hearing. Further, even if the offer was genuine, there was no indication as to the hours that the appellant would be able to work or the income she would be likely to derive from this job. Therefore, applying the balance of probabilities test, I am not satisfied that the appellant would start work and be able to support herself financially as soon as she arrived in the UK."
"I do not find that the ECO's decision discriminates against the Appellant because of the Sponsor's disability or disabilities. The parties are discriminated against, in the general sense, because the Sponsor is on benefits, irrespective of the type of benefit. The fact that the Sponsor has recourse to public funds means that paragraph 281(v) operates against the parties in a way that it would not if the Appellant were financially self-sufficient. The ECO's decision would be the same if the Sponsor was simply on IS and not additionally in receipt of DLA".
"As to paragraph 38 of the determination the issue was in fact an assessment of whether because the Sponsor receives DLA and how it affects the overall situation as he cannot work. It is unlikely that he will ever be able to work. If he can never work and if third party support is not permitted then he can never become financially able to meet the Immigration Rules. In the premises the Rules are not Human Rights compliant and further or alternatively, this issue of disability is of such significance as to mean that Article 8 is engaged to permit the Appellant and Sponsor to live together in the UK. Article 14 of the HRA is of relevance too."
"Exercising my judgement, I find that in not granting entry clearance the ECO deprived the Appellant and the Sponsor of a potentially new way of life together in the UK and a style of marriage where they could live together (other than on holiday) that they have never hitherto enjoyed. Further, a novel lifestyle together which they knew obtaining would be fraught with difficulties. If it were capable of being measured, their family life together and shared experiences would be small, as of the date of refusal. As against that, I can only presume that it is not unusual, never mind exceptional, for people from war-torn countries or countries such as Iraq, where there is serious and dangerous political upheaval, to meet and to be attracted to someone who lives in a safe country. Sadly, as there are many people in war-torn countries or countries undergoing upheaval, I find … the refusal to be proportionate to the legitimate goal of Immigration control which is "workable, predictable, consistent, fair and effective so as to ensure that it is not perceived as unduly porous". In essence, if the ECO (and now I) were wrong in relation to this decision on Article 8, then, logically the effect would be that it would be very likely that paragraph 281 would be circumvented very frequently by spouses from war-torn countries who had met whist living in different countries. I find the potential cost and effort of the State catering for the needs of such people far outweighs the personal cost to the parties in having to continue their relationship in the way that they have been doing."
"The argument raised on the behalf of the Appellant was clear. The sponsor is accepted to be disabled and in receipt of Disability Living Allowance (DLA) as a consequence. He is unfit to work and he is unlikely to ever to be able to work. As a consequence if third party support is not allowed in his circumstances he simply cannot satisfy the Immigration Rules as they stand and the Appellant and the sponsor will not be able to live together as husband and wife. This situation arises because the sponsor is disabled and therefore is unlikely to ever be able to obtain employment. Therefore the Appellant is unlikely to ever satisfy paragraph 281 as the sponsor is unlikely to ever be in a position where he can demonstrate that he has sufficient funds to support the Appellant adequately without the need for recourse to public funds. This it is submitted contravenes Article 14 ECHR which requires that the fundamental freedoms protected by the ECHR are applied equally and without discrimination to all persons.
It is submitted that the Immigration Judge materially erred in her assessment as to whether the respondent's decision discriminates against the appellant because of the sponsor's disability. The Immigration Judge's findings at paragraph 38 of the determination failed to take into account the fact the appellant is not being discriminated against because he is receipt of public funds but because he is disabled he is unlikely ever to be in a position to obtain employment and therefore it cannot be said that he can put himself in a position where he would not be in receipt of public funds. Therefore it is due to his disability that he finds himself in this position. It is therefore due to his disability that the appellant cannot satisfy the Immigration Rules. The Immigration Judge has therefore materially erred in law by failing to properly consider the appellant's claim under Article 8 and under Article 14 ECHR."
"It is unlawful for a public authority to discriminate against a disabled person in carrying out its functions".
"(2) Section 21B(1) does not apply to any act of, or relating to, making, confirming or approving —
(a) an Act, an Act of the Scottish Parliament or an Order in Council; or
(b) an instrument made under an Act, or under an Act of the Scottish Parliament, by —
(i) a Minister of the Crown;
…".
"[The sponsor] is depressed and needs support. His condition would be greatly improved if his wife were allowed into the country to join him."
If that is the evidence on which it was based, it was quite wrong for counsel before the Immigration Judge and counsel before us to make the assertions about prognosis that they did.
C M G OCKELTON
DEPUTY PRESIDENT
Date: