MW (Liberia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 20 December 2007 |
| Date | 20 December 2007 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Tuckey, Lawrence Collins and Rimer LJJ
Representation
Mr Manjit Gill QC and Mr Daniel Bazini instructed by Gordon Irving, for the Claimant;
Steven Kovats instructed by the Treasury Solicitors, for the Secretary of State.
Cases referred to:
AA (3rd party maintenance R 297 (v)) Bangladesh[2005] UKAIT 00105; [2005] Imm AR 328; [2006] INLR 1
AG (Eritrea) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 801; [2008] Imm AR 158; [2007] INLR 407;
AM (third party support not permitted R 281 (v)) Ethiopia[2007] UKAIT 00058; [2007] Imm AR 627
R v Secretary of State for the Home Department, ex parte Ali[2000] Imm AR 134; [2000] INLR 89
VS (para 317 (iii)no third party support) Sri Lanka[2007] UKAIT 00069; [2008] Imm AR 107
Legislation judicially considered:
Immigration Rules HC 395 (as amended), paragraph 297(v)
Immigration children paragraph 297(v) of the Immigration Rules adequate maintenance third party support AA (3rd party maintenance; R 297 (v)) Bangladesh[2005] UKAIT 00105
The Claimant (a minor), a citizen of Liberia, applied for entry clearance to join her mother (the Sponsor), who had been granted Exceptional Leave to Remain in the United Kingdom. Paragraph 297(v) of the Immigration Rules HC 395 (as amended) required a child of a parent or relative present and settled in the United Kingdom to show that he could and would be maintained adequately by the parent or relative without recourse to public funds. At the date of the application the Claimant was being cared for by a family friend in Ghana. The Sponsor, who lived in a council flat with her two other children, earned no income and was reliant on state benefits. She had been receiving financial assistance from friends to send money to the Claimant in Ghana, and three of these friends said that they would continue to assist her financially to enable her to support the Claimant in the United Kingdom. The Entry Clearance Officer (ECO) in Accra refused the application.
On appeal, an Immigration Judge held first, that the Claimant could not be maintained adequately by the Sponsor without recourse to public funds; secondly, that the refusal of entry clearance did not breach Article 8 of the ECHR. On reconsideration it was common ground that the Judge had not dealt properly with the evidence regarding third party support, and that her decision on Article 8 was wholly unsustainable because she did not make the necessary findings of fact or apply the relevant case law. The Asylum and Immigration Tribunal held that the voluntary support by the Sponsor's friends did not meet the requirements of paragraph 297(v). The Tribunal also found that the alleged interference with the Claimant's family life was not sufficiently severe to engage Article 8(1), and even if it was, there were no truly exceptional circumstances to render the decision to refuse entry disproportionate. The Tribunal substituted a fresh determination dismissing the Claimant's appeal against the ECO's decision.
On appeal to the Court of Appeal, the Claimant submitted, inter alia, that the words by the parent in paragraph 297(v) required the parent to do no more than ensure that the child would be adequately maintained; if it did not have this effect it was inconsistent with Article 8 of the ECHR and should be read down to permit third party support; and, if this could not be done, the rule should be quashed. The Secretary of State for the Home Department conceded that the Tribunal's treatment of proportionality in its consideration of Article 8 had been based on inadequate findings of fact.
Held, dismissing the appeal under the Immigration Rules but allowing the appeal on Article 8 grounds and remitting to the Tribunal for further reconsideration:
(1) paragraph 297(v) was clear: the child was required to be maintained by the parent or relative she was seeking to join without recourse to public funds; securing maintenance from some third party was not maintenance by the parent, regardless of whether the support was going directly to the child or to the parent for the purposes of the child's maintenance: AA (3rd party maintenance; R 297 (v)) Bangladesh[2005] UKAIT 00015 approved (paras 13 and 15);
(2) it was not possible to characterise monies received as voluntary and genuine gifts to the parent as income or assets of the parent; (para 13);
(3) in framing the current rule the Immigration Authorities were entitled to take the view that before entry would be allowed it had to be shown that the parent had adequate means to support the child; the parent had the most incentive to maintain the child and third party arrangements of the kind in question were necessarily more precarious and difficult to verify; furthermore the Immigration Rules did not provide for undertakings from third parties; the framing of the rule was justified by policy reasons and the Claimant's submissions that the rule was unlawful, unreasonable or ultra vires had to fail (para 16);
(4) (per curiam) money received by a parent under a deed of covenant or court order for maintenance might qualify if it was...
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