Mahad v Entry Clearance Officer (sub noms AM (Ethiopia) v Entry Clearance Officer & AM (Somalia) v Entry Clearance Officer)

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD BROWN,LORD HOPE,LORD RODGER,LORD COLLINS,LORD KERR
Judgment Date16 December 2009
Neutral Citation[2009] UKSC 16
Date16 December 2009

[2009] UKSC 16

THE SUPREME COURT

Michaelmas Term

On appeal from: [2008] EWCA Civ 1082

[2009] EWCA Civ 634

before

Lord Hope, Deputy President

Lord Rodger

Lord Brown

Lord Collins

Lord Kerr

Ahmed Mahad (previously referred to as AM) (Ethiopia)
(Appellant)
and
Entry Clearance Officer
(Respondent)
Sahro Ali (previously referred to as SA) (Somalia)
and
Amal Wehelia (previously referred to as AW) (Somalia)
(Appellants)
and
Entry Clearance Officer
(Respondent)
Malyun Ismail (previously referred to as MI) (Somalia)
and
Khadra Abdillahi (previously referred to as KA) (Somalia)
(Appellants)
and
Entry Clearance Officer
(Respondent)
Vettivetpillai Sakthivel (previously referred to as VS) (Sri Lanka)
(Appellant)
and
Entry Clearance Officer
(Respondent)
Abdi-Malik Muhumed (previously referred to as AM (No. 2)) (Somalia)
(Appellant)
and
Entry Clearance Officer
(Respondent)

Appellant (AM 1)

Manjit Gill QC

James Collins

(Instructed by Sheikh and Co Solicitors)

Respondent

Monica Carss-Frisk QC

Jonathan Hall

(Instructed by Treasury Solicitors)

Appellant (AM 2)

Michael Fordham QC

Joanna Stevens

(Instructed by Refugee and Migrant Justice)

Appellant (MI and KA)

Lord Pannick QC

Rory O'Ryan

(Instructed by Jackson & Canter LLP)

Appellant (SA and AW)

Michael Fordham QC

Philip Nathan

Sophie Weller

(Instructed by Hersi & Co Solicitors)

Appellant (VS)

Manjit Gill QC

Danny Bazini

Alexis Slatter

(Instructed by Kingston and Richmond Law Centre)

Intervener

Catherine Casserley

(Instructed by Equality & Human Rights Commission)

LORD BROWN
1

Part 8 of the Statement of Changes in Immigration Rules (HC 395), entitled Family Members, contains a number of rules setting out the conditions to be satisfied by various categories of family members seeking leave to enter the UK to settle with other family members already settled here ("sponsors" as the Rules describe some of them). Rule 281 deals with spouses (or, following amendment, civil partners); rule 297 with children; rule 317 with parents, grandparents and other dependant relatives. All of them include a requirement that those seeking entry will be able to be accommodated and maintained here without recourse to public funds. The single most important question for decision on each of these five conjoined appeals is whether this requirement permits third party support (as the appellants submit) or whether it precludes maintenance provided by anyone other than the sponsor (as the respondent entry clearance officers (ECOs) contend).

2

Three of the appellants – AM(1), SA (with her 6 year-old daughter, AW) and AM(2) – seek to join their spouses under rule 281. The other two appellants applied to enter under rule 317 – VS to join his son; KA (with her 11-year old granddaughter, MI) to join her daughter (MI's aunt) and another granddaughter (MI's adult cousin). Strictly, MI's application should have been considered under rule 297 but sensibly it has been treated throughout as standing or falling with KA's case under rule 317. Whilst, therefore, rule 297 is not directly in point in any of these cases, its terms (both before and after amendment in 2000) have loomed large in the argument and in the developing case law.

3

The specified requirements as to accommodation and maintenance under each of the three rules can conveniently be set out at this point.

Rule 281 (spouses):

"(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 (children):

"(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; and

(v) can, and will, be maintained adequately by the parent, parents or relative the child is seeking to join, without recourse to public funds."

With effect from 2 October 2000 (Statement of Changes in Immigration Rules (Cm 4851)) those two requirements were substituted for a single previous requirement:

"(iv) can, and will, be maintained and accommodated adequately without recourse to public funds in accommodation which the parent, parents or relative own or occupy exclusively."

Rule 317 (as amended by Cm 4851) (other dependent relatives):

"(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and

(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; and

(iva) can, and will, be maintained adequately, together with any dependants, without recourse to public funds."

4

Put shortly, the earlier case law on these rules has been as follows. First, Collins J in R v Secretary of State for the Home Department, Ex parte Arman Ali [2000] INLR 89 (judgment, 28 October 1999) held that rule 281(v) and (the unamended) rule 297(iv) did not preclude long-term maintenance by third parties. Next, the Asylum and Immigration Tribunal (AIT) (presided over by Hodge J) in AA (Third Party Maintenance) Bangladesh [2005] Imm AR 328 (judgment, 21 April 2005) held that rule 297(v) (as amended) requires that the parent, whom the child is joining, must himself maintain the child; "Third party support by relatives or otherwise cannot satisfy the rule" (para 30). Finally, the Court of Appeal (Tuckey, Lawrence Collins and Rimer LJJ) in MW (Liberia) v Secretary of State for the Home Department [2008] 1 WLR 1068 (judgment, 20 December 2007) endorsed AA's construction of rule 297(v). Tuckey LJ in the leading judgment observed (para 16):

"Third party arrangements of the kind in question in this case are necessarily more precarious and … more difficult to verify. Furthermore the rules do not provide for undertakings to be taken from third parties. These are policy reasons which I think justified the amendment."

Lawrence Collins LJ, "with some regret", agreed with that construction of rule 297(v), expressing, at para 20, the "hope that consideration can be given to amending the rule, consistently with the policy considerations mentioned by Tuckey LJ …, to facilitate reunion where there is verifiable evidence of long-term support from third parties."

These cases were the essential backdrop to the two decisions presently under appeal to this Court which I must now briefly explain.

5

The Court of Appeal (Pill, Laws and Carnwath LJJ) in AM (Ethiopia) v Entry Clearance Officer [2008] EWCA Civ 1082 (judgment, 16 October 2008) (AM (Ethiopia)) was concerned with all the present appellants save AM(2) (and save for a further applicant for entry clearance, MB, whose appeal was allowed and who is no longer involved in these proceedings). The majority of the Court held that all three rules "disallow reliance on third party support" (para 56 of Laws LJ's leading judgment, agreed to by Pill LJ). Carnwath LJ, recognising that the Court was bound by the decision in MW (Liberia), agreed that third party support is precluded under rules 281(v) and 297(v) but would have held it permissible under rule 317(iva). He would therefore have allowed the appeals of KA and MI, although not of VS, because he thought that VS in any event failed to satisfy the requirement under rule 317(iii) – the correctness of this being another issue now before us. There was a further basis too on which Carnwath LJ would have allowed the appeals of KA and MI. Laws LJ and Carnwath LJ (Pill LJ reserving his judgment on the point) held that rules 297 and 317 allow support by joint sponsors. Pill LJ and Laws LJ, however, Carnwath LJ dissenting on this point also, held that, where joint sponsorship is being relied upon, this has to be made plain by the naming of each sponsor as such in the application form. This too is now an issue before us. The Court unanimously rejected both an argument that article 8 of the European Convention on Human Rights (the Convention) required the rules to be read as necessarily permitting third party support and a separate article 8 ground of appeal in AM(1)'s case.

6

In the result, the Court of Appeal dismissed all the appeals before them save those of (a) MB, already mentioned, whose case was remitted to the AIT for reconsideration of his independent article 8 claim, and (b) AM(1), whose sponsor was in receipt of Disability Living Allowance (DLA) – a benefit previously held by the Court of Appeal (Sedley and Rimer LJJ, Pill LJ dissenting) in MK (Somalia) v Entry Clearance Officer [2007] EWCA Civ 1521 (judgment, 28 November 2007) to be part of the sponsor's own funds – and whose case was remitted to the AIT for assessment of whether her DLA was in fact sufficient to provide the necessary support. The AIT thereafter held that it was not and so dismissed AM(1)'s appeal. Under the Court of Appeal's main ruling, however, AM(1) had been held unable to rely on other third party funding and so remains party to this further appeal.

7

The other decision now under appeal before us is that of the Court of Appeal (Mummery, Maurice Kay and Elias LJJ) in AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634 (judgment, 1 July 2009) (AM (Somalia)), dealing with AM(2)'s case. By this decision the Court rejected AM(2)'s argument that, in the case of a disabled sponsor incapable of work (such as his wife was said to be), the effect of articles 8 and 14 of the Convention is that the maintenance requirement in rule 281(v) is to be read down or, if necessary, wholly disapplied. AM(2) expressly reserved his position on third party support and on article 8, issues upon which the Court was clearly bound by the main decision now under appeal, AM (Ethiopia).

8

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