AK and Others (Long-term third party support) Bangladesh
| Jurisdiction | England & Wales |
| Judgment Date | 05 September 2006 |
| Neutral Citation | [2006] UKIAT 69 |
| Date | 05 September 2006 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
C M G Ockelton, Deputy President, Warr SIJ and Batiste SIJ
Representation
Mr B Ali instructed by Kuddus, Solicitors, for the Claimants;
Mr Chris Avery, Home Office Presenting Officer, for the Secretary of State.
Case referred to:
AA (3rd party maintenance R297 (v)) Bangladesh [2005] UKAIT 00105; [2005] Imm AR 328
Legislation Judicially Considered:
Immigration Rules HC 395 (as amended), paragraphs 281 and 297
Nationality, Immigration and Asylum Act 2002, ss 85(4) and (5)
Immigration spouses children paragraphs 218 and 297 of the Immigration Rules sponsors third party maintenance evidence assessment of evidence expressions of goodwill and support insufficient evidence of long-term support required jurisdiction Asylum and Immigration Tribunal claimants not named in notice of appeal
The first Claimant and her two sons, the second and third Claimants, were citizens of Bangladesh. They applied for leave to enter for settlement as the wife and dependent sons of the Sponsor, who was present and settled in the United Kingdom. Their applications were refused under paragraphs 281 (relating to spouses or civil partners) and 297 (relating to children) of the Immigration Rules HC 395 (as amended) because the Secretary of State for the Home Department was not satisfied that the accommodation and maintenance requirements were met. The Sponsor, who was in receipt of state benefits, had submitted evidence of third party sponsorship from the first Claimant's nephew (the third party Sponsor). The Secretary of State did not accept that the third party Sponsor would be able to provide long-term maintenance as he had a wife and child of his own to support. The first Claimant's representative wrote to the Secretary of State, enclosing the notice of appeal. The notice of appeal named only the first Claimant as a party to the appeal, and the covering letter contained no reference to the second and third Claimants. On appeal, the Immigration Judge listed all three Claimants as parties to the appeal. He treated the second and third Claimants as dependants of the first Claimant and allowed the three appeals under paragraph 281, finding that the maintenance and accommodation requirements were satisfied. He made no separate finding under paragraph 281 concerning the first Claimant coming to the United Kingdom alone. Reconsideration was ordered on the ground that the Immigration Judge had materially misdirected himself in law first, in considering the second and third Claimants' appeals under paragraph 281; secondly, in taking into account third party support in respect of the maintenance and accommodation of the Claimants.
Held, substituting a fresh decision dismissing the first Claimant's appeal against the decision of the Secretary of State:
(1) there was nothing in the documentary evidence or in the grounds of appeal to support the Immigration Judge's conclusion that the second and third Claimants were intended as parties to the appeal: accordingly, there were no appeals by the second and third Claimants (paras 1720);
(2) even if the second and third Claimants had extant appeals, the Immigration Judge made a material error in law in concluding that paragraph 281 was relevant in deciding those appeals; the second and third Claimants' cases had to be decided under paragraph 297; they could not satisfy the requirements of the Immigration Rules as AA (3rd party maintenance R297 (v)) Bangladesh [2005] UKAIT 00105 excluded third party support from the maintenance and accommodation calculation in paragraph 297 (paras 2325 and 27);
(3) the Sponsor was in receipt of funds assessed by the government to be adequate for a person living on his own; it was difficult to see how two people could live on that money without either reducing the standard of living below that which the government deemed adequate for people living in the United Kingdom, or creating a need for additional recourse to public funds; the first Claimant had failed to provide any evidence indicating how she and the Sponsor would be able to maintain themselves without third party support or additional recourse to public funds, even if she alone joined the Sponsor in the United Kingdom (paras 3942);
(4) there was no doubt in this case that the third party Sponsor would be able to provide support in the short term; in order to demonstrate that the third party support would be available in the long term, however, much more was required evidentially than genuine expressions of support and adequate current means, especially to one who was neither an ascendant nor descendant relative of the third party Sponsor (paras 48 and 51);
(5) even if the rules allowed third party support in principle, in this case there was no evidence first, of how much might be needed in the way of third party support to secure adequate maintenance; secondly, of the potential impact of the third party support on the Sponsor's own entitlements to benefits; thirdly, of the extent of the third party Sponsor's own potential future commitments; in allowing the first Claimant's appeal by misinterpreting the scope and true extent of the burden which she was required to discharge, the Immigration Judge materially erred in law (paras 50 and 51).
Determination and Reasons
Batiste, Senior Immigration Judge:
[1] The Appellants are citizens of Bangladesh. The First Appellant is the mother of the Second and Third Appellants. They were born on 9 January 1948, 18 March 1986 and 22 March 1989 respectively. They are all referred to herein as Appellants for ease of identification, but during the course of the hearing an issue arose as to whether the Second and Third Appellants are actually parties to the present proceedings. We shall deal with this issue and other issues arising from it in due course.
History of the Appeal
[2] All three Appellants applied to the Respondent on 2 March 2004 for leave to enter the UK for settlement as the wife and dependent sons respectively of Mr K, their Sponsor, a person present and settled in the UK. The First Appellant and the Sponsor also have four other children. At the time of the application, three of them were married and living independently in Bangladesh and the fourth, a student, was over the age of 18 but lived in the family home in Bangladesh with the Appellants. At the time of the application, the Second Appellant was a few days short of his 18th birthday, and the Third Appellant was 14.
[3] Their applications were refused by the Respondent on 9 August 2004 under paragraphs 281 and 297 of HC395 on the basis he was not satisfied they could meet the requirements of the Rules on accommodation and maintenance. His decision was addressed to all three Appellants and his reasons were as follows:
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.
[4] On 22 September 2004 Messrs Kaddus wrote to the Respondent in the following terms. The underlining is ours.
Re AKDob: 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.
[5] It can be seen therefore that the covering letter refers only to an appeal by the First Appellant and there is nothing in this letter to indicate or imply that Messrs Kaddus were acting for anyone other than the first Appellant in lodging the notice of appeal. Furthermore the notice of appeal itself names only the first Appellant as the party to the appeal.
[6] The appeal came before Immigration...
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