Ms Hawa Ahmed Abubakar v Entry Clearance Officer (Sannaa)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Sir Stephen Sedley,Lord Justice Carnwath |
| Judgment Date | 28 March 2012 |
| Neutral Citation | [2012] EWCA Civ 377 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2011/1940 |
| Date | 28 March 2012 |
[2012] EWCA Civ 377
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(Immigration and Asylum Chamber)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Carnwath
Lord Justice Davis
and
Sir Stephen Sedley
Case No: C5/2011/1940
Mr Robert Williams (instructed by Hersi and Co.) for the Appellant
Miss Deok Joo Rhee (instructed by Treasury Solicitors) for the Respondent
Hearing dates : 22 February 2012
Introduction
This appeal raises questions as to how rule 317(iva) of the Immigration Rules (HC 395) is to be interpreted and applied in the aftermath of the decision of the Supreme Court in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] 1 WLR 48.
As formulated by the appellant, the principal issue is this. Is the maintenance requirement of this sub-rule satisfied if, without more, third party financial support is of an amount sufficient adequately to maintain an applicant for entry clearance? The appellant argues that it is. The respondent, on the other hand, argues that, for the purposes of the sub-rule, regard must be had to the cumulative net income, available from the sponsor as well as from the third party, with a view to assessing whether this total would adequately maintain both the sponsor (and his dependants) and the applicant.
The Entry Clearance Officer had refused the appellant's application for entrance clearance by decision dated 18 th August 2009. There was an appeal. After a hearing in the First Tier Tribunal, Immigration Judge Morris by determination promulgated on 2 nd July 2010 accepted the argument advanced on behalf of the respondent; and, after making findings as to the cumulative net income available, dismissed the appellant's appeal. A further appeal was dismissed by Designated Immigration Judge Woodcraft sitting in the Upper Tribunal by determination promulgated on 26 th April 2011.
The appellant now appeals, by way of second-stage appeal, to this court. Permission to appeal has been granted by Maurice Kay LJ.
Facts
The background facts are these.
The appellant was born on the 22 nd February 1944. She is a citizen of Somalia. She is a widow. Her son, Abdullatif Abu Mohamed, had come to the United Kingdom in 1993. He became a British Citizen in 2004 and is settled in the United Kingdom. He is the appellant's sponsor for entry into the United Kingdom. The appellant also has two daughters in the United Kingdom.
The appellant had lived apart from her children for many years. She herself had fled from Somalia and latterly had lived in a Somali community in Yemen, with support from the local community as well as regular financial assistance in the form of monthly remittances from her son (the sponsor). The sponsor had eventually been able to "track her down" (as the Immigration Judge put it); and he has also since visited her.
In due course, application for her entry into the United Kingdom, by reference to rule 317, was made. It was rejected by the Entry Clearance Officer. He did so on the basis that he was not satisfied that she met all the requirements of rule 317. It was indicated, among other things, that she had failed to show that she was wholly or mainly financially dependent on her sponsor; nor had it been shown that "you can adequately maintain yourself in the UK without additional recourse to public funds."
At that stage no suggestion of the availability of third-party financial support had been made.
In the Grounds of Appeal from that decision of the Entry Clearance Officer, the sponsor among other things said this:
"I am the primary person responsible for my Mother's care….It is my duty to attend to my Mother in her old age as it was my duty to maintain her before that. In the UK my Mother would live with me for the remainder of her life and spend time with her daughter-in-law and grandchildren."
It was also explained that the sponsor was the tenant of a three bedroomed house, living there with his wife and his two young children; and there was sufficient accommodation there for the appellant.
Very shortly before the hearing before Immigration Judge Morris a witness statement of Mr Shmunye dated 14 th June 2010 was served. He apparently is a nephew of the appellant, also a British citizen and settled in the UK. He stated that he was a full-time bus-driver, a single man living alone, and he claimed to have a net after tax monthly income of £1,600. He exhibited pay slips and other documents. He said that he considered it his duty to help his aunt and was willing to provide financial support to be used to maintain her so that there would be no recourse to public funds. He stated: "I can comfortably afford to give Mrs Abubakar £65.45p per week" (that being the 2010/2011 weekly income support rate). It seems likely that this proposal of support from Mr Shmunye was something of an afterthought, in case the sponsor's own means were assessed as inadequate.
No adjournment was requested on behalf of the respondent in the light of this late evidence and the hearing proceeded. The sponsor, one of the daughters of the appellant and Mr Shmunye all gave oral evidence.
It is important to note that the respondent made two concessions at the hearing, duly recorded in the Immigration Judge's findings; first, that there was sufficient evidence to show that the appellant was financially wholly or mainly dependent on the sponsor; second, that she could be accommodated adequately without recourse to public funds in accommodation which the sponsor owned or occupied exclusively. Thus the only remaining issue was whether the appellant could satisfy the requirement of rule 317(iva).
The Immigration Judge, in her determination promulgated on 2 nd July 2010, directed herself that the proper test of adequacy was by reference to the then applicable income support rates (taking the date of the decision of the Entry Clearance Officer as the relevant date). She assessed the evidence relating to the sponsor's earnings. The Judge accepted that the sponsor earned around £260 per week as a driver. She assessed his monthly earnings as £1,126.66 to which could be added £143.86 per month in respect of Child Benefit. She was, however, not prepared to accept the sponsor's evidence that he had further significant income from a second job as a driver. She found his monthly rent to be £455 and monthly Council Tax to be £52 at the relevant date.
Reviewing the figures, the Immigration Judge found that if the sponsor and his dependants were wholly reliant on income support (and allowing also a notional £64.30 per week by way of notional income support for the appellant, the figure applicable at the time of the Entry Clearance Officer's decision) he and his family, with the appellant, would, in those circumstances, be entitled to £1,202.37 per month; whereas on his actual monthly earnings (and allowing for child benefit) his total disposable income was £763.52: a shortfall of £438.85. The Immigration Judge's conclusion in paragraph 14 of the determination was to this effect:
"It is evident from the above that the Sponsor's income falls short of the Income Support Levels by £438.85. I have therefore taken into account the third party support offered by Mr Shmunye which can properly be taken into account. He gave evidence that he was prepared to give between £65.00—£70.00 per week to assist the Appellant. Working on the basis of £70.00 x 52 divided by 12, the third party's contribution would amount to a maximum of £303.33 per month which still leaves a large shortfall. Furthermore, for the reasons set out in paragraph 12(iii) above, I find that the Sponsor's monthly income is probably less than £1,126.66."
She went on to reject a submission by reference to Article 8 and accordingly dismissed the appeal.
The judgment of the Upper Tribunal
On the appeal (with leave) to the Upper Tribunal the Article 8 submission was not pursued further. But reliance continued to be placed on the support offered by Mr Shmunye, which taken on its own exceeded the amount payable, at the date of the decision, by way of weekly income support for an individual; and it was said that there thus would be no additional recourse to public funds. It was said that the Immigration Judge had been wrong to aggregate the income requirements of the whole family unit – that is the sponsor (with dependants) and appellant – as opposed to assessing those of the appellant on her own. Challenge was also made as to the Immigration Judge's decision on the facts that the sponsor had no second source of income. The Designated Immigration Judge indicated that he would first need to decide whether there was a material error of law in the determination under appeal before remaking the decision; if there was not the decision would stand.
The central findings of the Designated Immigration Judge, in his determination promulgated on 26 th April 2011, with regard to the argument advanced on behalf of the appellant (to the effect that the appellant would have her own source of income from Mr Shmunye and that the financial situation of the sponsor and his dependants was thus irrelevant) are these:
"29. I find that is to artificially create a distinction between the Sponsor and his family on the one hand and the Appellant on the other. The basis of the Appellant's application for entry clearance and the acceptance that the Appellant meets the remaining provisions of paragraph 317 is on the basis that the Appellant will be living with the Sponsor...
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Yarce (Adequate Maintenance: Benefits) [Upper Tribunal]
...be said to point to the contrary, we do not consider that those judgments (or those in Abubakar v Entry Clearance Officer (Sana'a) [2012] EWCA Civ 377) mean that actual income support paid to a United Kingdom sponsor must be disregarded in calculating the income available to the applicant ......
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Upper Tribunal (Immigration and asylum chamber), 2012-10-17, [2012] UKUT 425 (IAC) (Yarce (adequate maintenance: benefits))
...be said to point to the contrary, we do not consider that those judgments (or those in Abubakar v Entry Clearance Officer (Sana’a) [2012] EWCA Civ 377) mean that actual income support paid to a United Kingdom sponsor must be disregarded in calculating the income available to the applicant a......
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Upper Tribunal (Immigration and asylum chamber), 2014-05-15, OA/24978/2012 & ors
...law to which I had referred in detail in my promulgated error of law decision – attached) also included reference to Abubakar v ECO [2012] EWCA Civ 377 that held that one had to assess maintenance in the round. That case related to the practical reality in Rule 317 cases and to third party ......