AM (3rd Party Support Not Permitted R281(v)) Ethiopia [Asylum and Immigration Tribunal]
| Jurisdiction | England & Wales |
| Judgment Date | 15 June 2007 |
| Date | 15 June 2007 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
Hodge J, President and Gill SIJ
Representation
Mr A Pretzell and Mr J Collins instructed by Sheikh & Co. Solicitors., for the Claimant;
Ms Ros Brown and Mr Ouseley, Home Office Presenting Officers, for the Secretary of State.
Cases referred to:
AA (3rd party maintenance R297 (v)) Bangladesh[2005] UKAIT 00105; [2005] Imm AR 328; [2006] INLR 1
AK & Others (Long-term third party support) Bangladesh[2006] UKAIT 00069; [2007] Imm AR 177
Alexander v Immigration Appeal Tribunal[1982] Imm AR 50
HB (Ethiopia), FI (Nigeria), EB (Kosovo) and JL (Sierra Leone) v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 1713; [2007] Imm AR 396; [2007] INLR 150
Huang v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home DepartmentUNK[2007] UKHL 11; [2007] 2 WLR 581
KA and Others (Adequacy of maintenance) Pakistan[2006] UKAIT 00065; [2007] Imm AR 155
KP (Para 317: mothers-in-law) India[2006] UKAIT 00093
MK (Adequacy of maintenancedisabled sponsor) Somalia[2007] UKAIT 00028; [2007] Imm AR 557
MN v Entry Clearance Officer, Islamabad[2002] UKIAT 01369
Panaich v Entry Clearance Officer, New Delhi (00/TH/0072)
R v Secretary of State for the Home Department ex parte Arman Ali[2000] Imm AR 134; [2000] INLR 89
R v Secretary of State for the Home Department ex parte RazgarUNK[2004] UKHL 27; [2004] 2 AC 368; [2004] Imm AR 381; [2004] INLR 349
SB (Bangladesh) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 28: [2007] Imm AR 491
Legislation judicially considered:
Immigration Rules HC 395 (as amended), paragraphs 281 and 297
Immigration spouses paragraph 281(v) of the Immigration Rules third party support sponsors income derived from benefits human rights Article 8 of the ECHR family life proportionality Huang v Secretary of State for the Home DepartmentUNK[2007] UKHL 11 no exceptionality test only small minority of cases entitled to succeed
The Claimant, a citizen of Somalia, applied for entry clearance to join his wife (the Sponsor), who was a British citizen. At the date of the application, the Claimant was living in Ethiopia with his thirty-seven year old son. There was a delay of two and a half years before the Secretary of State for the Home Department refused the Claimant's application under paragraph 281 of the Immigration Rules HC 395 (as amended). In accordance with paragraph 281(v), a person seeking leave to enter the United Kingdom as a spouse with a view to settlement was required to show that the parties and any dependants could maintain themselves adequately without recourse to public funds. At the date of the Secretary of State's decision the Sponsor was in receipt of 91.00 a week in income support. The Claimant appealed to an Immigration Judge. By the date of the hearing, the Sponsor was in receipt of social security payments, including Disability Living Allowance (DLA), which amounted to 211.00 a week. The Judge accepted that each month the Sponsor sent up to $300.00 (184.00) to the Claimant and her son in Ethiopia. The Claimant was further supported by a daughter and a cousin, both of whom were living in the United Kingdom. The Judge allowed the appeal, finding that, taken together, the Sponsor's benefit income coupled with support the Claimant received from his daughter and cousin met the test for adequate maintenance under the Immigration Rules. The Judge did not consider it necessary to deal with the claim under Article 8 of the ECHR. An order for reconsideration was made. On reconsideration, the main issue before the Asylum and Immigration Tribunal was whether paragraph 281(v) was intended to allow support by third parties in addition to the support that the Claimant and Sponsor could provide themselves. The Claimant further argued that the Tribunal should reconsider his claim under Article 8 because, inter alia, he nearly qualified for entry clearance as a dependant of his daughter under paragraph 317 of the Immigration Rules; secondly, there had been a significant delay before the Secretary of State refused his entry clearance application; thirdly, he was living in poor conditions with his son in Ethiopia.
Held, substituting a fresh decision dismissing the Claimant's appeal against the decision of the Secretary of State:
(1) third party support was not permitted under paragraph 281(v); the phrase the parties will be able to maintain themselves referred to the individuals themselves, and did not permit of the importation of third party support to satisfy the requirement of the rule; the decision in R v Secretary of State for the Home Department, ex parte Arman Ali[2000] INLR 89 could no longer be relied upon to support the proposition that third party support was permitted where the underlying purpose of avoiding recourse to public funds was achieved; thus, the Judge had erred in law in taking into account the financial support provided by the Claimant's daughter and cousin (paras 19, 20, 24 and 25);
(2) section 85(5) of the Nationality, Immigration and Asylum Act 2002 (as amended) obliged the Judge to determine the appeal by reference to the circumstances appertaining as at the date of the decision; by taking into account the Sponsor's receipt of DLA, which she was receiving at the date of the hearing but not at the date of the Secretary of State's decision, the Judge further erred in law; this error was material to the decision to allow the appeal under the Immigration Rules (para 26);
(3) the benefits a person received had to be deemed adequate maintenance for that person alone; it would be wrong in principle to accept that benefits deemed adequate for one person ought to be accepted as adequate for two persons in order to facilitate entry into the United Kingdom for the second person; at the date of the decision the Sponsor's income support was not adequate to support the Claimant and the Sponsor within the meaning of paragraph 281(v) (paras 28 and 30);
(4) even if it had been open to the Judge to take the Sponsor's DLA into account, he had fallen into error by equating the money the Sponsor sent to the Claimant for his support in Ethiopia to the funds properly available in order to satisfy the maintenance requirement; enhanced benefits such as DLA were awarded out of necessity so that the needs of the claimant could be met; where a sponsor had disabilities, it had to be assumed that enhanced benefits had been awarded out of necessity and were not available to support dependants coming from abroad: MK (Adequacy of maintenancedisabled sponsor) Somalia[2007] UKAIT 00028 applied (para 31);
(5) in relation to Article 8 of the ECHR, exceptionality was not a legal test: Huang v Secretary of State for the Home Department: Kashmiri v Secretary of State for the Home DepartmentUNK[2007] UKHL 11 applied; it was not the case, however, that claimants would find it easier to succeed under Article 8 of the ECHR than was previously the case; when assessing proportionality, Immigration Judges had to be careful to state clearly that their task was to weigh all the competing considerations and give due and considerable weight to the considerations in favour of the decision appealed against; they should then answer the proportionality question by stating whether they found that the case they were dealing with, although not covered by the Immigration Rules and supplementary directions, was entitled to succeed under Article 8; it remained the case that decisions taken pursuant to the lawful operation of immigration control would be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis: R v Secretary of State for the Home Department ex parte RazgarUNK[2004] UKHL 27 applied (para 47);
(6) the Claimant's case was not one of the very small minority of cases which was entitled to succeed under Article 8; first, it would have been an error of law for the Judge or the Panel to have taken into account whether the Claimant would succeed if he were to make an entry clearance application on another basis: SB (Bangladesh) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 28 applied; secondly, the delay by the Secretary of State would have to have had very substantial effects if it were to influence the outcome because the Claimant did not have a potential substantive right of entry under the Immigration Rules or under any policy: HB (Ethiopia) & Ors v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 1713 applied; thirdly, in entry clearance cases, the State's obligation was a positive one to facilitate family life and it was difficult to see how an individual's living conditions could have any real bearing on the question of whether family life would be prejudiced in a manner sufficiently serious as to amount to a breach of Article 8; the general living conditions of claimants would therefore bear little weight (paras 5155).
[1] 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 20th 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.
[2] 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...
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