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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> AM (3rd party support not permitted R281 (v)) Ethiopia [2007] UKAIT 00058 (21 June 2007) URL: https://www.bailii.org/uk/cases/UKIAT/2007/00058.html Cite as: [2007] UKAIT 58, [2007] UKAIT 00058 |
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party support not permitted R281 (v)) Ethiopia [2007] UKAIT 00058
Date of hearing: 20 February and 12 March 2007
Date Determination notified: 21 June 2007
AM |
APPELLANT |
and |
|
Entry Clearance Officer, Addis Ababa, Ethiopia | RESPONDENT |
Third party support is not permitted under paragraph 281(v) of The Rules. Arman Ali should no longer be followed. The case of MK (Adequacy of maintenance disabled sponsor) Somalia [2007] UKAIT 00028 is reaffirmed. Where a sponsor has disabilities it should be assumed that enhanced benefits, such as a higher rate of Income Support, or Disability Living Allowance, have been awarded out of necessity and are not available to support dependants coming from abroad. 2. Although, after Huang v Secretary of State for the Home Department [2007] UKHL 11 exceptionality is not the criterion for success in Article 8 cases, it is likely that it will be rare for a claimant who does not meet the requirements of the Immigration Rules to succeed under Article 8. In assessing the issue Immigration Judges should take care to weigh all relevant considerations, giving due and considerably weight to the factors supporting the decision appealed against.
Factual background
The first Tribunal decision
Paragraph 281 of the Rules
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 to [or the civil partner of] 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 [or civil partner] and the marriage [or civil partnership] 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 dependents adequately without recourse to public funds; and(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.
297. The requirements to be met by a person seeking indefinite leave to enter the United 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: [ ]
(v) can, and will, be maintained adequately by the parent, parents or relative the child is seeking to join, without recourse to public funds;
"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."
"The view that the wording of paragraph 194, and other similar paragraphs in the Rules, excludes third party support appears to be implicit in decision of the Tribunal in [AA Bangladesh]. For this reason we should have found that the support offered by the third party could not be taken into account as assisting the first appellant who satisfied the requirements of the Rules, even if we had found that such support were realistically available."
"Vague and unquantified expressions of goodwill are inadequate to enable an applicant for settlement to show the availability of adequate maintenance (or indeed accommodation) even if the rules allow third party support in principle."
(our emphasis)
Mr. Pretzell relied on the final (underlined) phrase in that sentence to argue that the Tribunal in AK and others left open the possibility that third party support may be permitted under paragraph 281 of the Rules.
" Accordingly, the Rules would not in my view be in accordance with Article 8 if they were construed so as to exclude a spouse when his or her admission would not affect the economic well-being of the country because there would be no recourse to public funds or any other detriment caused by it.
I come finally to the construction of the relevant Rules, namely H.C. 395. Since it is clear that their implementation can, given circumstances which are not likely to be particularly unusual, produce a breach of Article 8, they should, if possible, be given a construction which will avoid such a breach.
The wording of Rule 281(vi) does not in terms suggest that the ability to maintain must be from the parties' own resources. Other rules do.
If a rich relation, or a benefactor is willing and able to maintain a family in this country so that there is no need to have recourse to public funds, I see no reason in principle why that family should be kept apart. The purpose of the rule is quite clearly met and the natural meaning of the language used is consistent with the construction I have espoused.
I do not doubt that it will be rare for applicants to be able to satisfy an Entry Clearance Officer, the Secretary of State or an adjudicator that long term maintenance by a third party will be provided so that there will be no recourse to public funds. But whether or not such long term support will be provided is a question of fact to be determined on the evidence."
"19. In our judgment, when benefits are paid to a person in respect of a disability, it is simply improper to conclude, without more, that that person would be maintained adequately if he or she made their benefits available to someone else. Of course, it may be the case that if another person is available to share the task of caring, the costs will be reduced but that simply cannot be assumed; it must be the subject of evidence. Different people will be able to offer different things, from occasional transport (thus perhaps saving taxi fares) upwards. Without such evidence, it appears to us that it should normally be presumed that the adequate maintenance of the recipient of the benefits requires the whole of those benefits."
"It perhaps does not necessarily follow that in order to be adequately maintained one has to have resources at least equivalent to those which would be available to a family on income support. But there are very good reasons for taking that view. A family of British (or EU) citizens resident in this country will not have less than that level. It is extremely undesirable that the Rules should be interpreted in such a way as to envisage immigrant families existing (and hence being required to exist, because social security benefits are not available to them) on resources less than those which would be available through the social security system to citizen families. To do so is to encourage the view that immigrant families need less, or can be expected to live on less .."
We agree with and support this view.
Article 8
"In my view there are strong compassionate factors in this case, and there would be strong Article 8 grounds, given the overall circumstances. This is a family that have been separated by war, and that have suffered considerably, both physically and psychologically. As it is, however, it is clear that they succeed under the Rules, For these reasons, I base my decision on the Rules, and will say not say more about Article 8. This also reflects the way the appeal was put forwarded on their behalf."
Discussion of Article 8
"317. The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom are that the person:
(i) is related to a person present and settled in the United Kingdom in one of the following ways:
(a) mother or grandmother who is a widow aged 65 years or over; or
(b) father or grandfather who is a widower aged 65 years or over; or
(c) parents or grandparents travelling together of whom at least one is aged 65 or over; or
(d) a parent or grandparent aged 65 or over who has remarried but cannot look to the spouse or children of the second marriage for financial support; and where the person settled in the United Kingdom is able and willing to maintain the parent or grandparent and any spouse or child of the second marriage who would be admissible as a dependant; or
(e) a parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; or
(f) the son, daughter, sister, brother, uncle or aunt over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; and .."
"21. whether or not the applicant would satisfy the requirements for entry clearance was not a matter which the [Tribunal] ought to have taken into account". Although there are arguments (and first instance decisions) which support the opposite view, that statement seems to be right as a matter of principle, in terms of fairness and good practice, and in the light of authority.
22. So far as principle is concerned, the issue of whether the applicant satisfied the requirements of paragraph 246 of the Immigration Rules would be for an entry clearance officer in Bangladesh to determine, if and when an application under that paragraph is made. In the absence of a requirement to that effect, it is not an appropriate issue for determination, when no such application has been made, by a tribunal deciding a different question, at a different time, in a different country, and in different circumstances. It would also seem somewhat paradoxical if the stronger an appellant's perceived case for entry clearance under the Immigration Rules the more likely he or she is to be removed. Yet, subject to the first point mentioned in paragraph [20] above, on the basis of the reasoning of the Tribunal in this case, that would be the inevitable consequence.
23. As to practicality, it would be unfortunate, in terms of time effort and expense, if a tribunal, when deciding whether a claim for leave to remain was truly exceptional, had to consider, almost as a matter of course, how likely an appellant, if removed from the United Kingdom, would be to succeed on a subsequent putative application for entry clearance to come back to this country. Yet, as we see it, such an exercise would have to be carried out in many, possibly most, appeals of the present type, if that issue was potentially relevant. And, if such an exercise is carried out, it is hard to see how a tribunal is to decide the weight or effect of such a factor if it decides that the prospects of success of such an application to enter are debatable or speculative.
24. There is also a real risk of unfairness to an appellant if such a factor is taken into account. Thus, the views expressed in paragraphs [66] and [67] by the Tribunal in this case may turn out to be wrong, either because an entry clearance officer takes a different view of the facts or the law, or because the Immigration Rules change, or because the facts change."
Summary
(i) Third party support is not permitted under paragraph 281(v) of the Rules. Arman Ali should no longer be followed.
(ii) As the Tribunal said in MK (Adequacy of maintenance - disabled sponsor) Somalia [2007] UKAIT 00028, where a sponsor has disabilities it should be assumed that enhanced benefits, such as a higher rate of Income Support, or Disability Living Allowance, have been awarded out of necessity and are not available to support dependants coming from abroad.
(ii) If it is proposed that sums paid to a sponsor by way of disability living allowance will be used towards the maintenance of an applicant, evidence must be adduced to show precisely how the sponsor's funds will be saved by obtaining alternative care, whether the applicant is able and willing to provide the care and whether the funds saved would be adequate for his maintenance without recourse to public funds.
(iii) When deciding the issue of proportionality in Article 8 cases:
(a) it would be an error of law for an immigration judge, when deciding proportionality, to take into account the likely success or otherwise of a different entry clearance application by the applicant;
(b) in entry clearance cases, the respondent's delay in making a decision is unlikely to carry more than minimal weight, even if it is a relevant factor; and
(c) in general terms, an applicant's poor living conditions abroad will not have any real bearing on the question of whether his article 8 rights will be breached by a refusal of entry clearance.
Decision
The following decision is accordingly substituted:
The appeal is dismissed on immigration grounds.
The appeal is dismissed on human rights grounds.
Mr Justice Hodge Date: 15.06.07
President