Mahad v Entry Clearance Officer (sub noms AM (Ethiopia) v Entry Clearance Officer & AM (Somalia) v Entry Clearance Officer)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Carnwath,Lord Justice Pill |
| Judgment Date | 01 July 2009 |
| Neutral Citation | [2009] EWCA Civ 634,[2008] EWCA Civ 1082 |
| Docket Number | Case Nos: C5/2007/2433, C5/2007/2827,C5/2007/2717, C5/2007/2527 & C5/2007/2932,Case No: C5/2008/0932 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 July 2009 |
[2008] EWCA Civ 1082
Lord Justice Pill
Lord Justice Laws and
Lord Justice Carnwath
Case Nos: C5/2007/2433, C5/2007/2827,C5/2007/2717, C5/2007/2527 & C5/2007/2932
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION APPEAL TRIBUNAL
Mr Manjit Gill QC and Mr James Collins (instructed by Sheikh & Co) for the 1st Appellant
Mr Philip Nathan and Ms Sophie Weller (instructed by Hersi & Co) for the 2nd Appellant
Mr Ramby De Mello and Mr Tony Muman (instructed by J M Wilson) for the 3rd Appellant
Mr Manjit Gill QC and Mr Danny Bazini (instructed by Kingston and Richmond Law Centre (SWLLC)) for the 4th Appellant
Mr Rory O'Ryan (instructed by A S Law) for the 5th Appellant
Mr Jonathan Hall and Ms Amy Mannion (instructed by The Treasury Solicitor) for the Home Department
Hearing dates: 9 & 10 July 2008
INTRODUCTION: THE IMMIGRATION RULES
Paragraphs 281, 297 and 317 of the current Immigration Rules made by the Secretary of State under s.3(2) of the Immigration Act 1971 and contained in HC395 as amended contain provisions under which (I summarise) the person seeking entry to the United Kingdom must show that he will be maintained or supported here without recourse to public funds. The primary issue for decision in these conjoined appeals is the extent to which, if at all, such maintenance or support may be supplied by a third party, that is a person other than the immigrant himself or his immigration sponsor. “Sponsor” is here a term of art, defined in the interpretation provisions of the Rules. I give the definition below.
Before explaining the circumstances of the five cases before us it is convenient to set out the relevant provisions of the Rules with which we are directly concerned. They deal with persons seeking entry to the United Kingdom to join various classes of family members already settled here (or being admitted for settlement on the same occasion). Rule 281 is headed:
“Requirements for 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 being admitted on the same occasion for settlement”.
The requirements to be met by such a prospective entrant include requirements that:
“(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 dependants adequately without recourse to public funds”.
Rule 297 is headed:
“Requirements for indefinite leave to enter the United Kingdom as the child of a parent, parents, or a relative present and settled or being admitted for settlement in the United Kingdom”.
In this case the relevant requirements are that the entrant
“(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join, without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively;
(v) can, and will, be maintained adequately by the parent, parents or relative the child is seeking to join, without recourse to public funds…”.
Rule 317 is headed “parents, grandparents and other dependent relatives or persons present and settled in the United Kingdom.” Here the relevant requirements are that the entrant
“(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom;
(iv) can, and will, be accommodated adequately, together with any dependants without recourse to public funds, in accommodation which the sponsor owns or occupies exclusively;
(iva) can, and will, be maintained adequately, together with any dependants, without recourse to public funds…”
I should also set out the material provisions concerning sponsors, beginning with Rule 6 (the interpretation paragraph) which defines “sponsor” thus:
“'sponsor' means the person in relation to whom an applicant is seeking leave to enter or remain as their spouse, fiancé, civil partner, proposed civil partner, unmarried partner, same-sex partner or dependent relative, as the case may be, under paragraphs 277 to 295O or 317 to 319.”
It is to be noted that this definition of “sponsor” does not include the parent or other relative mentioned in Rule 297(v). No significance was attached to this in the course of argument, and I would attach none. I should next cite Rule 6A:
“For the purpose of these Rules, a person is not to be regarded as having (or potentially having) recourse to public funds merely because he is (or will be) reliant in whole or in part on public funds provided to his sponsor, unless, as a result of his presence in the United Kingdom, the sponsor is (or would be) entitled to increased or additional public funds.”
And Rule 35:
“A sponsor of a person seeking leave to enter or variation of leave to enter or remain in the United Kingdom may be asked to give an undertaking in writing to be responsible for that person's maintenance and accommodation for the period of any leave granted, including any further variation. Under the Social Security Administration Act 1992 and the Social Security Administration (Northern Ireland) Act 1992, the Department of Social Security or, as the case may be, the Department of Health and Social Services in Northern Ireland, may seek to recover from the person giving such an undertaking any income support paid to meet the needs of the person in respect of whom the undertaking has been given. Under the Immigration and Asylum Act 1999 the Home Office may seek to recover from the person giving such an undertaking amounts attributable to any support provided under section 95 of the Immigration and Asylum Act 1999 (support for asylum seekers) to, or in respect of, the person in respect of whom the undertaking has been given. Failure by the sponsor to maintain that person in accordance with the undertaking, may also be an offence under section 105 of the Social Security Administration Act 1992 and/or under section 108 of the Immigration and Asylum Act 1999 if, as a consequence, asylum support and/or income support is provided to, or in respect of, that person.”
Two further Rules are of some importance in considering the role of the sponsor in the scheme of immigration control. Rule 320 appears under the heading “General grounds for the refusal of entry clearance, leave to enter or variation of leave to enter or remain in the United Kingdom”. One of the “[g]rounds on which entry clearance or leave to enter the United Kingdom should normally be refused” is set out at sub-paragraph 14:
“refusal by a sponsor of a person seeking leave to enter the United Kingdom to give, if requested to do so, an undertaking in writing to be responsible for that person's maintenance and accommodation for the period of any leave granted”.
Rule 322 sets out “[g]rounds on which leave to remain in the United Kingdom should normally be refused”. They include this provision, which mirrors Rule 320(14):
“(6) refusal by a sponsor of the person concerned to give, if requested to do so, an undertaking in writing to be responsible for his maintenance and accommodation in the United Kingdom or failure to honour such an undertaking once given”.
OUTLINE FACTS
What follows is an outline of the facts in each of the five appeals. It will be necessary to add further details when I address some of the individual arguments canvassed before us.
AM
AM is a 76 year old Somalian national presently resident in Ethiopia. He seeks to join his wife, who is a British citizen, and their five children in the United Kingdom. He applied for entry clearance in May 2003. His application was not decided until 30 November 2005 when it was refused. He appealed, claiming so far as relevant that he satisfied Rule 281(v). He also relied on Article 8 of the European Convention on Human Rights (“ECHR”), which of course guarantees respect for private and family life. On 13 September 2006 his appeal was allowed by Immigration Judge Gibb who held that on the facts his case indeed fell within Rule 281(v). The Immigration Judge did not deal with the Article 8 claim.
The Secretary of State sought a reconsideration, which was ordered on 26 September 2006. On 7 September 2007 the Asylum and Immigration Tribunal (“the AIT”) (Hodge J and Senior Immigration Judge Gill) dismissed the appeal under Rule 281(v). The appellant had relied on financial support provided by a daughter, Fatuma Mahad, and also from a cousin, Basil Ali. The AIT held that such third party support could not be relied on for the purpose of Rule 281(v). They held also that IJ Gibb had been in error in taking into account in the appellant's favour money provided by the appellant's wife out of disability living allowance (“DLA”) received by her. They held, finally, that there was no violation of ECHR Article 8.
Permission to appeal to this court was granted by Sir Henry Brooke on 17 January 2008.
VS
VS is a citizen of Sri Lanka, born on 12 March 1941. On 24 July 2006 he applied to the Entry Clearance Officer for leave to enter the United Kingdom to join his son here, claiming that his case fell within Rule 317. His application was refused. His appeal was heard by IJ Mayall and dismissed by him after a hearing on 1 February 2007. The IJ accepted the evidence of the appellant's son and that of a friend, Mr Arunan: Mr Arunan was providing £100 per month which was sent by...
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