Upper Tribunal (Immigration and asylum chamber), 2008-03-25, [2008] UKAIT 26 (NM (Disability discrimination))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Mr O'Malley A, G, Mr Parkes M F |
| Status | Reported |
| Date | 25 March 2008 |
| Published date | 27 March 2008 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 16 November 2007 |
| Subject Matter | Disability discrimination |
| Appeal Number | [2008] UKAIT 26 |
NM (Disability discrimination) Iraq [2008] UKAIT 00026
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Birmingham Date of Hearing: 16 November 2007
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Designated Immigration Judge O’Malley
Immigration Judge M F Parkes
Between
Appellant
and
THE ENTRY CLEARANCE OFFICER, AMMAN
Respondent
Representation
For the Appellant: Miss E Rutherford, instructed by Derby Law Centre
For the Respondent: Mr I Neal, Home Office Presenting Officer
A person who cannot meet the requirements of the Immigration Rules is unlikely to be able to show that the decision was contrary to the Disability Discrimination Act 1995 (as amended) by reason of the sponsor’s disability or perhaps at all.
DETERMINATION AND REASONS
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The appellant, a citizen of Iraq, appealed to the Tribunal against the decision of the respondent on 23 March 2007 refusing her entry clearance to the United Kingdom as the spouse of a person present and settled here (“the sponsor”). The Immigration Judge dismissed the appeal. The appellant sought and obtained an order for reconsideration. Thus the matter comes before us.
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We do not know the sponsor’s immigration history in any detail, but he comes from Iraq. He claimed asylum in the United Kingdom, probably in 2000, and apparently successfully. A grant of British citizenship to him is evident by his passport dated 1 March 2007. In the spring of 2004 he was on holiday in Iran, staying at a hotel. He met the appellant there and, according to the evidence both from the appellant and the sponsor, they immediately, on the day that they met, started a relationship. She says not merely that, but also that she lived with him as his fiancée from then until 20 July 2004, which was presumably when one or the other of them left Iran. They remained in touch by telephone and they were married by proxy in Iraq on 20 June 2006. On that date the appellant was in Iraq and the sponsor was in the United Kingdom. The sponsor and the appellant then both went on a holiday to Syria and lived together as husband and wife from 30 June to 6 September 2006. They both then apparently returned home. Although the present application was made shortly after the sponsor obtained British citizenship, and is said to be the appellant’s first application, there is amongst the appellant’s bundle a letter to the Entry Clearance Officer, Damascus dated 20 October 2006 and referring to an application for entry clearance being made to that officer at that time. The respondent has, however, taken no point on this.
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The sponsor is entirely reliant upon benefits. He receives Income Support and Disability Living allowance, both of which are “public funds” for the purposes of the Immigration Rules, because they fall within the definition of that phrase in para 6 in the Statement of Changes in Immigration Rules HC 395. Partly for that reason, the appellant included with her application declarations from a number of individuals who said they were prepared to support her. At the time of the application to the Entry Clearance Officer in Damascus, those individuals were described as “five close family friends”, but so far as this application is concerned there appears to have been no evidence of third party support before the Entry Clearance Officer, although the Immigration Judge in due course heard oral evidence from three individuals.
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The Entry Clearance Officer refused the application for a number of reasons, set out in the notice of decision. Following the service of the appellant’s notice of appeal, the decision was reviewed, but the decision that the respondent was not satisfied that the appellant could be adequately maintained and accommodated without recourse to public funds was maintained. There was an issue about accommodation, which, for reasons we will explain below, we do not need to set out here. The two substantive paragraphs of the review read as follows:
“3. The appellant states the sponsor’s income is higher than the minimum. However, the level of income support and Disability Living Allowance for the sponsor has been assessed according to his individual need. The bank statements provided with the application showed reliance on additional funds and an account run down to just a few pounds. As such he has little disposable income to support an additional adult regardless of whether his income is deemed officially to be higher than the ‘minimum’. With this appeal, the appellant has now submitted up to date accounts. These merely confirm that the sponsor spends his entire income and is still dependent on additional funds — I note the two unexplained deposits each of £200 into the account on 27th and 28th March for example. I am not satisfied still that the sponsor can accommodate [meaning, apparently, “maintain”] the appellant without further recourse to public funds.
4. The appellant states I have failed to take account of third party support on offer to the appellant. However, there is no indication of any third party sponsorship whatsoever. Even if there were, third party offers are unenforceable and often made purely to facilitate an application. A third party can withdraw their support at any time. Ultimately the responsibility lies with the sponsor to maintain his wife adequately.”
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The part of the Immigration Rules that is of concern in this appeal is para 281(v), which requires that as a person seeking admission as the spouse of a person settled and present in the United Kingdom must show that:
“The parties will be able to maintain themselves and any dependents adequately without recourse to public funds”.
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At the hearing of the appeal before the Immigration Judge, there was oral and documentary evidence. The respondent was unrepresented; the appellant was represented by counsel. The Immigration Judge accepted that the appellant was sending some money to his wife in Iraq, and was able to do so because he “could live frugally”. She declined, however, to find that the sponsor’s income was sufficient for the adequate maintenance of himself and his wife in the United Kingdom. She rejected the suggestion that there could be third party support. She accepted that the three individuals that appeared before her offering such support were honest and truthful, generous and genuine. She found that they genuinely intended to offer short term financial support if necessary. She referred to AK and others [2006] UKAIT 00069 and AM [2007] UKAIT 00058 and held that para 281 of HC 395 does not permit third party support. She then looked at a job offer which another individual had made to the appellant. She said:
“Despite the job offer…, I am not satisfied that the appellant would immediately find work. [The perspective employer] did not attend at court, there was no indication in his letter as to how long the job offer would be open and, indeed, I do not know whether or not the position had been filled by the time of the hearing. Further, even if the offer was genuine, there was no indication as to the hours that the appellant would be able to work or the income she would be likely to derive from this job. Therefore, applying the balance of probabilities test, I am not satisfied that the appellant would start work and be able to support herself financially as soon as she arrived in the UK.”
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The Immigration Judge then looked at Article 8. She noted the circumstances of the appellant and the sponsor and of their marriage and of the contact since. She remarked that “it must have been obvious to them that there would be very significant difficulties in them being able to live together”, but that they “took the step of marrying”. She concluded that in the circumstances any interference in the appellant’s private or family life resulting from the decision under appeal would be proportionate. She then dealt briefly with an argument on disability discrimination, based on Article 14 of the European Convention on Human Rights and s 21B of the Disability Discrimination Act 1995 (as amended). Her conclusion was as follows:
“I do not find that the ECO’s decision discriminates against the Appellant because of the Sponsor’s disability or disabilities. The parties are discriminated against, in the general sense, because the Sponsor is on benefits, irrespective of the type of benefit. The fact that the Sponsor has recourse to public funds means that paragraph 281(v) operates against the parties in a way that it would not if the Appellant were financially self-sufficient. The ECO’s decision would be the same if the Sponsor was simply on IS and not additionally in receipt of DLA”.
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The Immigration Judge made no specific finding on questions of accommodation. She did not need to because she was dismissing the appeal on other grounds. In fact, however, as we understand the position, there is no continuing concern about the accommodation requirements of the Immigration Rules. The Entry Clearance Officer appears to have been struck by a difference between two documents submitted to him, but it is clear that the sponsor’s present accommodation could be occupied by him and his wife without statutory overcrowding.
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