VS (Para 317(III)-No 3rd Party Support) Sri Lanka [Asylum and Immigration Tribunal]
| Jurisdiction | England & Wales |
| Judgment Date | 26 June 2007 |
| Date | 26 June 2007 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
Hodge J, President, and E Arfon-Jones, Deputy President
Representation
Mr Nicholson, for the Claimant;
Mr Steve Walker, Home Office Presenting Officer, for the Secretary of State.
Cases referred to:
AA (3rd party maintenance R297 (v)) Bangladesh[2005] UKAIT 00105; [2005] Imm AR 328; [2006] INLR 1
AM (Third party support not permitted R281 (v)) Ethiopia[2007] UKAIT 00058; [2007] Imm AR 627
MK (Adequacy of maintenancedisabled sponsor) Somalia[2007] UKAIT 00028; [2007] Imm AR 557
Huang v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home DepartmentUNK[2007] UKHL 11; [2007] 2 AC 167; [2007] Imm AR 571; [2007] INLR 314
Legislation judicially considered:
Immigration Rules HC 395 (as amended), paragraph 317(iii)
Immigration dependent relatives paragraph 317(iii) of the Immigration Rules financially dependent sponsor dependent on public funds third party support sponsor as mere conduitAA (3rd party maintenance R297(v)) Bangladesh[2005] UKAIT 00105MK (Adequacy of maintenance disabled sponsor) Somalia[2007] UKAIT 0028
The Claimant, a citizen of Sri Lanka, applied for entry clearance as a dependent relative of his son (the Sponsor), who was present and settled in the United Kingdom. The Sponsor was disabled and received income support, disability living allowance, housing benefit and 100 each month from a family friend to support his father in Sri Lanka. The Entry Clearance Officer refused the application on the ground that the Claimant had failed to establish his financial dependency on the Sponsor as required by paragraph 317(iii) of the Immigration Rules HC 395 (as amended).
An Immigration Judge dismissed the Claimant's appeal, finding that the support the Claimant received from the Sponsor in reality came from a family friend. The Sponsor was a mere conduit for funds provided by the friend and therefore was not the person upon whom the Claimant was dependent. The Claimant appealed on the grounds that the Judge had made a material error of law in his construction of paragraph 317(iii) and that the Judge's interpretation was incompatible with his rights under Article 8 of the ECHR.
Held, affirming the decision of the Immigration Judge to dismiss the Claimant's appeal against the Secretary of State's decision:
(1) the Sponsor was wholly dependent upon public funds and therefore was not in a position to remit money to the Claimant, thereby creating a dependency; any enhanced allowance payable to the Sponsor because of a disability met the particular needs and expenses occasioned by that disability and was not available to support dependants: AA (3rd party maintenanceR297(v)) Bangladesh[2005] UKAIT 00105 and MK (Adequacy of maintenancedisabled sponsor) Somalia[2007] UKAIT 0028 applied; the Claimant failed to demonstrate that the money he received was truly the Sponsor's to give; there was no evidence that the Sponsor declared the monthly payments he received from his friend to the income tax or social security authorities; accordingly, the Judge was correct to conclude that the Sponsor was no more than a mere conduit for the funds received by the Claimant; the Judge's interpretation of paragraph 317(iii) had been proper and correct (paras 2529);
(2) in light of the House of Lords' opinion in Huang v Secretary of State for the Home DepartmentUNK[2007] UKHL 11, published after the date of the hearing, the Judge had wrongly applied the exceptionality test when considering the applicability of Article 8, but he had adequately weighed the various factors relating to the Claimant's family situation and had reasonably concluded that the decision to refuse entry clearance was proportionate; despite the rejection of the legal test of exceptionality in Huang, the expectation remained that only in rare cases would Article 8 be successfully invoked when a claimant had failed to meet the requirements of the Immigration Rules (paras 17, 2930).
[1] 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.
[2] The appellant applied for reconsideration of the decision and Senior Immigration Judge 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.
[3] 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 HC 395.
[4] Thus...
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