VS (Para 317(iii)
| Jurisdiction | England & Wales |
| Judge | E ARFON-JONES DL,DEPUTY PRESIDENT |
| Judgment Date | 26 June 2007 |
| Neutral Citation | [2007] UKAIT 69 |
| Court | Asylum and Immigration Tribunal |
| Date | 26 June 2007 |
[2007] UKAIT 69
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr Justice Hodge, President
Miss E Arfon-Jones DL, Deputy President of the Asylum and Immigration Tribunal
For the Appellant: Mr Nicholson of Counsel
For the Respondent: Mr Walker, Home Office Presenting Officer
VS (Para 317(iii) — no 3rd party support) Sri Lanka
Third party support is not permitted under paragraph 317(iii) of the Immigration Rules. Where a sponsor is wholly dependent upon public funds and sends to the relative outside the UK money he has received from a third party he is a mere conduit for that money. That does not create a dependency on the sponsor within the Rules.
This is a reconsideration case. The appellant born, 12 March 1941, is a citizen of Sri Lanka. He applied for entry clearance to the United Kingdom as the dependent relative of his son. His application was refused on 4 September 2006. He appealed to the Tribunal and following a hearing before Immigration Judge Mayall on 1 February 2007, his appeal was dismissed.
The appellant applied for reconsideration of the decision and Senior Immigration Batiste ordered reconsideration of the decision on 10 April 2007. He ordered reconsideration in the following terms:–
“This application was made in time and the grounds, and in particular the first ground in relation to the nature of dependency demonstrates that the Immigration Judge may have made a material error of law and a real possibility that the Tribunal would have decided the appeal differently on reconsideration.”
The Immigration Judge was satisfied that the appellant met all the requirements of paragraph 317 of the Immigration Rules save for paragraph 317(iii) of HC395.
Thus the matter came before us at Field House on 26 June 2007.
The relevant Immigration Rule is paragraph 317 of HC395, as amended. It is not necessary to set out the rule out in full. The rule does, however, require the appellant to demonstrate inter alia that he:–
(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom;”
The Notice of Refusal issued to the appellant indicated that the respondent was not satisfied that the appellant met the following requirements:–
“? I am not satisfied that you are financially wholly or mainly dependant on your son in the UK
? I am not satisfied that you can and will be maintained and or accommodated adequately without recourse to (additional) public funds in accommodation which your son or occupies exclusively
? I am not satisfied that you have no other close relatives in your own country to whom you could turn for financial support.
? I am not satisfied that you are living outside the UK in the most exceptional compassionate circumstances and are mainly dependant financially on relatives settled in the UK.”
The Immigration Judge assessed the evidence and found at paragraphs 59 to 66 of the determination inclusive that all the requirements of the rule had been met save for the question of whether the appellant was dependent “on the relative, present and settled in the United Kingdom”.
At paragraphs 68 to 72 inclusive of the determination the Immigration Judge explained why he was not satisfied that the appellant met the requirements of sub-paragraph (iii). The Immigration Judge dealt with the issue of dependency on the UK relative as follows:–
“68. I consider that the wording of the Rule is clear. The appellant has to be dependent upon his son. The Rule is designed to facilitate entry, in certain circumstances, for those who are dependent on their relatives settled in the UK. It is not a Rule designed to facilitate entry to persons who happen to have a relative present and settled in the UK but who are dependent financially on some other person. For example it would not avail an applicant to show that he had a relative present and settled in the UK and that he was financially dependent upon some other person in his home country. Similarly it would not, in my judgment, avail him to show that he had a relative present and settled in the UK but he was financially dependent upon another party who also happened to be present and settled in the UK. The Rule requires that the relative present and settled in the UK is the person upon whom the applicant is dependent.
69. I am strengthened in this conclusion by the decision in AA Bangladesh [2005] UKAIT 00105 .
70. Can it be said, in this case, that the appellant is wholly or mainly dependent upon his son? I regret that I do not think it can be so said. One must look at the reality of the situation. The reality is that the funds come from Mr Arunan. The sponsor is a mere conduit in this case.
71. It is said that because the provision of the funds depends upon the friendship between Mr Arunan and the son then, in reality, the provision is dependent upon the relationship between sponsor and appellant. That may be correct insofar as it goes. It may well be that the reason Mr Arunan provides support to the appellant is because of his friendship with his son. (Although the tenor of the evidence from Mr Arunan was that he was happy to provide the support because of the overall family connection). Whatever the reason for the provision of support, however, the fact remains that the support comes from Mr Arunan and not from the sponsor.
72. Thus I regret that I am not satisfied that the appellant meets the requirements of paragraph 317(3).”
The Immigration Judge then considered the applicability of Article 8 to this appeal. He dismissed the appeal pursuant both to the Immigration Rules and on human rights grounds.
At the hearing before us, Mr Nicholson reminded us that the sole issue was whether or not the Immigration Judge had made a material error of law in his interpretation of Rule 317(iii). He reminded us that the Immigration Judge had found in the appellant's favour in respect of all other aspects of the rule and as no Reply had been submitted by the respondent pursuant to Rule 30 of the Procedure Rules, he invited us to conclude that the interpretation of Rule 317(iii) was the only relevant issue to be considered.
Relying on the grounds as submitted to the Tribunal, he also reminded us of the appellant's witness statement at Annex A1 to A3. It had been accepted that the appellant was living alone, was over the age of 65 and dependent on his son in the United Kingdom. Paragraph 6 of the witness statement dealt with the serious disability of the son, the sponsor, and its consequences.
Mr Nicholson submitted that this was a case which focussed on the issue of dependency. The cases of AA Bangladesh [2005] UKAIT 00105 and AM Ethiopia [2007] UKAIT 00058 did not deal with the issue of dependency per se. MK Somalia [2007] UKAIT 0028 was not on point. It was to be remembered that this appeal did not relate to a child.
Mr Nicholson argued that the requirement of the rule in relation to dependency was met in that the appellant was dependent on the sponsor. The source of the sponsor's income, albeit that it created a separate dependency of its own, was not relevant to the simple question of whether or not the appellant was dependent upon the sponsor. The source of income was irrelevant. He further relied on the fact that no mischief was done to Rule 317(iii) by ignoring the completely separate dependency of the sponsor on Mr Arunan.
In such circumstances, Mr Nicholson urged us to...
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