Am (3Rd Party Support Not Permitted R281 (v))
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hodge,President |
| Judgment Date | 12 March 2007 |
| Neutral Citation | [2007] UKAIT 58 |
| Court | Asylum and Immigration Tribunal |
| Date | 12 March 2007 |
[2007] UKAIT 58
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr Justice Hodge (President)
Senior Immigration Judge Gill
For the appellant: Mr A. Pretzell and Mr J Collins Counsel, (instructed by Sheikh & Co. Solicitors)
For the respondent: Ms R. Brown and Mr Ouseley (Home Office Presenting Officers)
AM (3rd party support not permitted R281 (v)) Ethiopia
In 2003 the appellant, a citizen of Somalia born in 1930, applied for entry clearance to the UK as the dependant of his wife now a UK citizen but formerly a Somali national. The application was made in about May 2003. It was refused on 30 November 2005. An appeal was lodged on 20 th December 2005. The appellant's appeal was allowed by Immigration Judge Gibb in a determination promulgated on 13 September 2006. The respondent's application for a reconsideration of the successful appeal was granted by a senior immigration judge on 26 September 2006.
The appellant had fled Somalia and at the time of the application was living in Ethiopia with his son. The appellant's appeal was considered with the appeal of his son, then aged 37, who had also been refused entry clearance. At the hearing before the immigration judge it was indicated on behalf of the sponsor that that appeal was to be withdrawn. The immigration judge properly pointed out that the sponsor had no power to withdraw the appeal but, having considered the matter, the son's appeal was dismissed on the papers. No application is before this tribunal in relation to the son's case.
At the time of the application in April 2003, it appears the appellant's wife (here called the sponsor) was in receipt of income support. By the time of the hearing, and to date, she also became entitled to disability living allowance. It is not entirely clear precisely when the sponsor began receiving disability living allowance but Mr. Pretzell confirmed that this must have happened at some time between the date of the decision and the date of the hearing before the immigration judge. At the date of the decision, the sponsor was in receipt of £91 per week. At the date of the hearing before the immigration judge, she was in receipt of social security payments including disability living allowance of £211 per week. In addition to disability living allowance and income support, the sponsor currently receives housing benefit and council tax benefit. She lives in a property of which she is the sole tenant, owned by a housing trust. There have been conversion works to the property to provide for the sponsor's disabilities.
The appellant has health problems and also suffers from a disability. The medical evidence before the immigration judge (paragraph 14 of the Determination) shows that the appellant suffered from a peptic ulcer, “external thrombosed hemorrhoids”, depression and chronic pain in his leg secondary to an amputation below the left ankle joint. The evidence does not suggest that either the appellant or his sponsor is able to work, and indeed no such suggestion has been made.
The immigration judge accepted that the sponsor sent to her husband and son in Ethiopia between US$200 and US$300 per month. This equated to between £123 and £184 per month, depending on the exchange rate. The sponsor and the appellant have a daughter who is in well-paid employment in London earning in 2005 £41,000 and now after promotion £50,000. The daughter gives her witness statement says £600 a month to support her father and brother in Ethiopia monthly and the judge accepted she pays £500 into an account for support of the family.
A cousin of the appellant who also lives in England supports the appellant and his son in amounts which vary between £100 and £400 per month. The evidence accepted by the immigration judge suggests that the appellant and his son are maintained in Ethiopia by monthly remittances from the UK which at their lowest total £723 per month and at their highest £1184 per month. The son, who is a partial beneficiary of this support, is, as indicated, in his thirties.
One apparent basis for the refusal by the respondent of the appellant's application was that the marriage between the appellant and the sponsor was not subsisting. The immigration judge gave full and clear reasons for rejecting that view. He made a finding that the marriage was subsisting.
Before the immigration judge, the respondent's representative conceded that there was adequate accommodation.
The immigration judge noted that the application had been made in 2003 on the basis that, although the sponsor (the appellant's wife) would not be able to support the first appellant, there was additional sponsorship from the daughter. He said that at the hearing emphasis was placed on the sponsor's benefit, income and disability living allowance and her ability to support the appellant. However, he took the view that “the correct approach is to look at the resources of the family as a whole. This was the way that the application was originally put forward and it is also the reality of how the family have been supporting the first appellant in Ethiopia”. The immigration judge concluded that the benefit income, the support from the daughter and some further support from a cousin taken together met the test for adequate maintenance in the Rules and so allowed the appeals.
The respondent refers in the refusal of entry clearance to paragraph 317 and 352 of the Rules. With the consent of all parties the appeal proceeded before the immigration judge and before us on the basis that the applicable rules relating to this appeal are contained in paragraph 281 Rules (HC 395 as amended). The paragraph is as follows:
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.
For the purposes of this reconsideration, so far as relevant, it was accepted by all parties that the only requirement of paragraph 281 in issue was paragraph 281(v).
It is common in the Rules to require a person seeking entry clearance in various circumstances to show that they can be adequately maintained without recourse to public funds. The wording of this provision in relation to children joining their parents or relatives has been considered by the Tribunal in AA (3rd party maintenance R297 (v)) Bangladesh [2005] UKAIT 00105.
Paragraph 297 provides so far as relevant:
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;…
The Tribunal in AA Bangladesh concluded in relation to paragraph 297(v):
“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.”
Ms. Brown submitted that the immigration judge made an error of law in the manner in which he analysed the requirement for maintenance in this case. She submitted that the immigration judge was wrong to “look at the resources of the family as a whole” when deciding, as he did, that the appellant can be maintained adequately without recourse to public funds. Ms Brown argued by analogy with AA Bangladesh that the maintenance has to be by “the parties” alone. Hence, third party support cannot be relied on. The immigration judge was wrong to accept that the monies from the daughter and the cousin could be taken into account. The sponsor, it was argued, only had her social security benefits. They were provided for the sponsor alone. This was not adequate for the maintenance of two persons, here the appellant and the sponsor.
Ms Brown further relied on KA (and others) Pakistan [2006]...
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