AK & Others (Long-term third party support)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Batiste |
| Judgment Date | 05 September 2006 |
| Neutral Citation | [2006] UKAIT 69 |
| Court | Asylum and Immigration Tribunal |
| Date | 05 September 2006 |
[2006] UKAIT 69
Asylum And Immigration Tribunal
THE IMMIGRATION ACTS
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Warr
Senior Immigration Judge Batiste
For the Appellant: Mr B Ali, instructed by Messrs Kuddus, Solicitors
For the Respondent: Mr C Avery, Presenting Officer
AK & Others (Long-term third party support) Bangladesh
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.
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.
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 18 th birthday, and the Third Appellant was 14.
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.
On 22 September 2004 Messrs Kaddus wrote to the Respondent in the following terms. The underlining is ours.
“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.”
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.
The appeal came before Immigration Judge Curzon Lewis on 2 March 200In his determination promulgated on 4 April 2006 he listed all three appellants as parties to the appeal and made inter alia the following findings.
- ….. 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.
The Immigration Judge after analysing the evidence and submissions allowed the appeal under paragraph 281 in respect of maintenance. In so doing he noted that:–
- 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.
With regard to accommodation he noted that there was conflicting evidence from the local authority concerning the adequacy of the accommodation to be provided by the Sponsor. He concluded however that the third party Sponsor would be willing to provide accommodation for one of the boys. On that basis he allowed the appeal as to accommodation under paragraph 281, but noted as follows:
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
Thus, it appears from the determination that the...
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