On appeal from: [2008] EWCA Civ 1082
[2009] EWCA Civ 634
JUDGMENT
Ahmed Mahad (previously referred to as AM) (Ethiopia)
(Appellant) v Entry Clearance Officer (Respondent)
Sahro Ali (previously referred to as SA) (Somalia) and Amal
Wehelia (previously referred to as AW) (Somalia) (Appellants) v
Entry Clearance Officer (Respondent)
Malyun Ismail (previously referred to as MI) (Somalia) and
Khadra Abdillahi (previously referred to as KA) (Somalia)
(Appellants) v Entry Clearance Officer (Respondent)
Vettivetpillai Sakthivel (previously referred to as VS) (Sri
Lanka) (Appellant) v Entry Clearance Officer (Respondent)
Abdi-Malik Muhumed (previously referred to as AM (No. 2))
(Somalia) (Appellant) v Entry Clearance Officer (Respondent)
before
Lord Hope, Deputy President
Lord Rodger
Lord Brown
Lord Collins
Lord Kerr
JUDGMENT GIVEN ON
16 December 2009
Heard on 9, 10 and 11 November 2009
Appellant (AM 1) Respondent
Manjit Gill QC Monica Carss-Frisk QC
James Collins Jonathan Hall
(Instructed by Sheikh and
Co Solicitors)
(Instructed by Treasury
Solicitors)
Appellant (AM 2) Appellant (MI and KA)
Michael Fordham QC Lord Pannick QC
Joanna Stevens Rory O’Ryan
(Instructed by Refugee
and Migrant Justice)
(Instructed by Jackson &
Canter LLP)
Appellant (SA and AW) Appellant (VS)
Michael Fordham QC Manjit Gill QC
Philip Nathan
Sophie Weller
Danny Bazini
Alexis Slatter
(Instructed by Hersi & Co
Solicitors)
(Instructed by Kingston
and Richmond Law
Centre)
Intervener
Catherine Casserley
(Instructed by Equality &
Human Rights
Commission)
Page 2
LORD BROWN
1. Part 8 of the Statement of Changes in Immigration Rules (HC 395), entitled
Family Members, contains a number of rules setting out the conditions to be
satisfied by various categories of family members seeking leave to enter the UK to
settle with other family members already settled here (“sponsors” as the Rules
describe some of them). Rule 281 deals with spouses (or, following amendment,
civil partners); rule 297 with children; rule 317 with parents, grandparents and
other dependant relatives. All of them include a requirement that those seeking
entry will be able to be accommodated and maintained here without recourse to
public funds. The single most important question for decision on each of these five
conjoined appeals is whether this requirement permits third party support (as the
appellants submit) or whether it precludes maintenance provided by anyone other
than the sponsor (as the respondent entry clearance officers (ECOs) contend).
2. Three of the appellants – AM(1), SA (with her 6 year-old daughter, AW)
and AM(2) – seek to join their spouses under rule 281. The other two appellants
applied to enter under rule 317 – VS to join his son; KA (with her 11-year old
granddaughter, MI) to join her daughter (MI’s aunt) and another granddaughter
(MI’s adult cousin). Strictly, MI’s application should have been considered under
rule 297 but sensibly it has been treated throughout as standing or falling with
KA’s case under rule 317. Whilst, therefore, rule 297 is not directly in point in any
of these cases, its terms (both before and after amendment in 2000) have loomed
large in the argument and in the developing case law.
3. The specified requirements as to accommodation and maintenance under
each of the three rules can conveniently be set out at this point.
Rule 281 (spouses):
“(iv) there will be adequate accommodation for the
parties and any dependants without recourse to public
funds in accommodation which they own or occupy
exclusively; and
(v) the parties will be able to maintain themselves and
any dependants adequately without recourse to public
funds.”
Rule 297 (children):
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“(iv) can, and will, be accommodated adequately by
the parent, parents or relative the child is seeking to
join without recourse to public funds in
accommodation which the parent, parents or relative
the child is seeking to join, own or occupy exclusively;
and
(v) can, and will, be maintained adequately by the
parent, parents or relative the child is seeking to join,
without recourse to public funds.”
With effect from 2 October 2000 (Statement of Changes in Immigration Rules
(Cm 4851)) those two requirements were substituted for a single previous
requirement:
“(iv) can, and will, be maintained and accommodated
adequately without recourse to public funds in
accommodation which the parent, parents or relative
own or occupy exclusively.”
Rule 317 (as amended by Cm 4851) (other dependent relatives):
“(iii) is financially wholly or mainly dependent on the
relative present and settled in the United Kingdom; and
(iv) can, and will, be accommodated adequately,
together with any dependants, without recourse to
public funds, in accommodation which the sponsor
owns or occupies exclusively; and
(iva) can, and will, be maintained adequately, together
with any dependants, without recourse to public
funds.”
4. Put shortly, the earlier case law on these rules has been as follows. First,
Collins J in R v Secretary of State for the Home Department, Ex parte Arman Ali
[2000] INLR 89 (judgment, 28 October 1999) held that rule 281(v) and (the
unamended) rule 297(iv) did not preclude long-term maintenance by third parties.
Next, the Asylum and Immigration Tribunal (AIT) (presided over by Hodge J) in
AA (Third Party Maintenance) Bangladesh [2005] Imm AR 328 (judgment, 21
Page 4
April 2005) held that rule 297(v) (as amended) requires that the parent, whom the
child is joining, must himself maintain the child; “Third party support by relatives
or otherwise cannot satisfy the rule” (para 30). Finally, the Court of Appeal
(Tuckey, Lawrence Collins and Rimer LJJ) in MW (Liberia) v Secretary of State
for the Home Department [2008] 1 WLR 1068 (judgment, 20 December 2007)
endorsed AA’s construction of rule 297(v). Tuckey LJ in the leading judgment
observed (para 16):
“Third party arrangements of the kind in question in
this case are necessarily more precarious and . . . more
difficult to verify. Furthermore the rules do not provide
for undertakings to be taken from third parties. These
are policy reasons which I think justified the
amendment.”
Lawrence Collins LJ, “with some regret”, agreed with that construction of rule
297(v), expressing, at para 20, the “hope that consideration can be given to
amending the rule, consistently with the policy considerations mentioned by
Tuckey LJ . . . , to facilitate reunion where there is verifiable evidence of longterm support from third parties.”
These cases were the essential backdrop to the two decisions presently under
appeal to this Court which I must now briefly explain.
5. The Court of Appeal (Pill, Laws and Carnwath LJJ) in AM (Ethiopia) v
Entry Clearance Officer [2008] EWCA Civ 1082 (judgment, 16 October 2008)
(AM (Ethiopia)) was concerned with all the present appellants save AM(2) (and
save for a further applicant for entry clearance, MB, whose appeal was allowed
and who is no longer involved in these proceedings). The majority of the Court
held that all three rules “disallow reliance on third party support” (para 56 of Laws
LJ’s leading judgment, agreed to by Pill LJ). Carnwath LJ, recognising that the
Court was bound by the decision in MW (Liberia), agreed that third party support
is precluded under rules 281(v) and 297(v) but would have held it permissible
under rule 317(iva). He would therefore have allowed the appeals of KA and MI,
although not of VS, because he thought that VS in any event failed to satisfy the
requirement under rule 317(iii) – the correctness of this being another issue now
before us. There was a further basis too on which Carnwath LJ would have
allowed the appeals of KA and MI. Laws LJ and Carnwath LJ (Pill LJ reserving
his judgment on the point) held that rules 297 and 317 allow support by joint
sponsors. Pill LJ and Laws LJ, however, Carnwath LJ dissenting on this point also,
held that, where joint sponsorship is being relied upon, this has to be made plain
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by the naming of each sponsor as such in the application form. This too is now an
issue before us. The Court unanimously rejected both an argument that article 8 of
the European Convention on Human Rights (the Convention) required the rules to
be read as necessarily permitting third party support and a separate article 8 ground
of appeal in AM(1)’s case.
6. In the result, the Court of Appeal dismissed all the appeals before them save
those of (a) MB, already mentioned, whose case was remitted to the AIT for
reconsideration of his independent article 8 claim, and (b) AM(1), whose sponsor
was in receipt of Disability Living Allowance (DLA) – a benefit previously held by
the Court of Appeal (Sedley and Rimer LJJ, Pill LJ dissenting) in MK (Somalia) v
Entry Clearance Officer [2007] EWCA Civ 1521 (judgment, 28 November 2007)
to be part of the sponsor’s own funds – and whose case was remitted to the AIT for
assessment of whether her DLA was in fact sufficient to provide the necessary
support. The AIT thereafter held that it was not and so dismissed AM(1)’s appeal.
Under the Court of Appeal’s main ruling, however, AM(1) had been held unable to
rely on other third party funding and so remains party to this further appeal.
7. The other decision now under appeal before us is that of the Court of
Appeal (Mummery, Maurice Kay and Elias LJJ) in AM (Somalia) v Entry
Clearance Officer [2009] EWCA Civ 634 (judgment, 1 July 2009) (AM
(Somalia)), dealing with AM(2)’s case. By this decision the Court rejected
AM(2)’s argument that, in the case of a disabled sponsor incapable of work (such
as his wife was said to be), the effect of articles 8 and 14 of the Convention is that
the maintenance requirement in rule 281(v) is to be read down or, if necessary,
wholly disapplied. AM(2) expressly reserved his position on third party support
and on article 8, issues upon which the Court was clearly bound by the main
decision now under appeal, AM (Ethiopia).
8. Before coming to consider the central question of construction before us, it
is necessary first to set out certain further rules extensively relied upon in
argument:
Rule 6 (the interpretation rule) (as amended by Cm 6339) provides that:
“‘sponsor’ means the person in relation to whom an
applicant is seeking leave to enter or remain as their spouse,
fiancé, civil partner, proposed civil partner, unmarried
partner, same-sex partner or dependent relative, as the case
may be, under paragraphs 277 to 295O or 317 to 319.”
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Two things may be noted in passing about this definition of sponsor. First, that it
has evolved down the years: originally there was no such definition, then it was
confined to spouses (rule 281); then extended to include relatives being joined by
adult dependants (rule 317). Secondly, even to this day it has never included “the
parent, parents or relative” whom a child is seeking to join under rule 297.
9. Next, rule 6A (as inserted by Cm 4851):
“For the purpose of these Rules, a person is not to be
regarded as having (or potentially having) recourse to
public funds merely because he is (or will be) reliant in
whole or in part on public funds provided to his
sponsor, unless, as a result of his presence in the
United Kingdom, the sponsor is (or would be) entitled
to increased or additional public funds.”
Finally (for the moment), rule 35:
“A sponsor of a person seeking leave to enter or
variation of leave to enter or remain in the United
Kingdom may be asked to give an undertaking in
writing to be responsible for that person’s maintenance
and accommodation for the period of any leave
granted, including any further variation. Under the
Social Security Administration Act 1992 . . . , the
Department of Social Security . . . may seek to recover
from the person giving such an undertaking any
income support paid to meet the needs of the person in
respect of whom the undertaking has been given.”
(The rule also now provides for the Home Office to recover pursuant to such an
undertaking whatever amount may be attributable to NASS support given to an
asylum seeker.)
10. There is really no dispute about the proper approach to the construction of
the Rules. As Lord Hoffmann said in Odelola v Secretary of State for the Home
Department [2009] 1 WLR 1230, 1233 (paragraph 4):
Page 7
“Like any other question of construction, this [whether
a rule change applies to all undetermined applications
or only to subsequent applications] depends upon the
language of the rule, construed against the relevant
background. That involves a consideration of the
immigration rules as a whole and the function which
they serve in the administration of immigration
policy.”
That is entirely consistent with what Buxton LJ (collecting together a number of
dicta from past cases concerning the status of the rules) had said in Odelola in the
Court of Appeal ([2009] 1 WLR 126) and, indeed, with what Laws LJ said (before
the House of Lords decision in Odelola) in the present case. Essentially it comes to
this. The Rules are not to be construed with all the strictness applicable to the
construction of a statute or a statutory instrument but, instead, sensibly according
to the natural and ordinary meaning of the words used, recognising that they are
statements of the Secretary of State’s administrative policy. The respondent’s
counsel readily accepted that what she meant in her written case by the proposition
“the question of interpretation is . . . what the Secretary of State intended his policy
to be” was that the court’s task is to discover from the words used in the Rules
what the Secretary of State must be taken to have intended. After all, under section
3(2) of the Immigration Act 1971, the Secretary of State has to lay the Rules
before Parliament which then has the opportunity to disapprove them. True, as I
observed in Odelola (para 33): “the question is what the Secretary of State
intended. The rules are her rules.” But that intention is to be discerned objectively
from the language used, not divined by reference to supposed policy
considerations. Still less is the Secretary of State’s intention to be discovered from
the Immigration Directorates’ Instructions (IDIs) issued intermittently to guide
immigration officers in their application of the rules. IDIs are given pursuant to
paragraph 1(3) of Schedule 2 to the 1971 Act which provides that:
“In the exercise of their functions under this Act
immigration officers shall act in accordance with such
instructions (not inconsistent with the immigration
rules) as may be given them by the Secretary of State .
. .” (emphasis added).
11. It is evident that IDIs have on occasion been issued inconsistently with the
Rules as interpreted by the courts. A plain instance of this was an instruction
issued in April 2001 stating in relation to rule 281 that support for a married
couple from their families in the UK “would not satisfy the Rules, which require
the couple to maintain themselves”, an instruction flatly contrary to Collins J’s
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unappealed decision some 18 months earlier in Arman Ali. Whilst I would readily
ascribe such an inconsistency to a regrettable lack of coordination rather than
characterise it (as the appellants suggest) as “a matter of great constitutional
concern”, for my part I found the series of IDIs canvassed before us (in any event
incomplete for want of any retained archive of such instructions, another thing to
be regretted) singularly unhelpful on the issue of construction.
12. The critical paragraphs of the Rules for the court’s interpretation here are
those dealing with maintenance, not accommodation. But an important part of the
context for their interpretation is the way in which the parallel accommodation
requirements have been construed. As to this, the position is well established: rules
281(iv), 297(iv) and 317(iv) all allow “the parties” (the language of rule 281, but a
convenient expression also to describe other family members applying to be reunited) to live together in accommodation owned and provided, quite possibly
free, by a third party. So much, indeed, Laws LJ was prepared to accept (paras 45
and 61 of his judgment below) and the respondent now concedes.
13. It is important to notice also certain other funds or forms of assistance
(besides the provision of accommodation) accepted to be legitimately available to
“the parties” in satisfying the maintenance requirement. One of these is DLA, a
benefit which, as already mentioned, the settled relative can use as he or she likes
(with any necessary care possibly being provided free by a friend or relative).
14. Rule 6A is itself noteworthy in this regard: implicit in it is that the sponsor
is at liberty to rely on whatever public funds he or she is entitled to, provided only
that the arrival of the family member(s) seeking entry will not increase that
entitlement.
15. Next to be noted is that third party support in fact is recognised to be
acceptable so long as there is a legal obligation to provide it. Tuckey LJ recognised
in MW (Liberia) (para 14) that “money received by a parent under a deed of
covenant or court order for maintenance might qualify if it could be shown that the
legal obligation to pay it was being or was likely to be met”. Laws LJ below, citing
that passage, added (para 60): “Money received by a sponsor through such a route
is as much his own as is salary paid by his employer.” But this brings me to
another point: the recognition that salary payable by an employer clearly qualifies
as part of the funds available to the sponsor for the parties’ maintenance applies no
less in the case of employment generously provided by a friend or relative than
employment in the open labour market. Naturally, in either case, it is for the
parties to satisfy the ECO that the employment will continue or that other
employment will, if necessary, replace it so that on entry the applicant will not be a
drain on public funds. But why should employment by a benevolent (perhaps
Page 9
wealthy) friend or relative necessarily be any more precarious than arm’s length
employment in the open market? It may well be less so. And in any event, in all
these cases, it is for the sponsor to satisfy the ECO that one way or another the
parties will be able to maintain themselves “without recourse to public funds”. The
very premise of the debate is that the sponsor will be able to do so.
16. Why, in these circumstances, should one read into the maintenance
requirement a prohibition against kinds of third party financial support other than
those already noted? Why refuse to consider, for example, promises of continuing
regular payments by close friends and/or relations (as in each of the five cases
before us)? Why should one read the expressions “will be able to maintain
themselves” (rule 281(v)), “can, and will, be maintained adequately by the
[relative] the child is seeking to join” (rule 297(v)), “can, and will, be maintained
adequately” (rule 317(iva)) as meaning or necessarily implying “without assistance
from third parties” rather than meaning simply “will be able to cope financially”?
17. Importantly, each maintenance requirement paragraph ends with the words
“without recourse to public funds”. That plainly is the governing consideration in
all these provisions (those words being, indeed, on one reading mere surplusage if
a prohibition against third party support is already explicitly or implicitly to be
found in the first part of these provisions). The respondent invites us to read these
paragraphs as if they also said “and without recourse to third party support”. But
that would seem to me an artificial rather than a natural reading, particularly given
the odd and unsatisfactory distinctions made by the respondent in drawing the
suggested boundary between those kinds of third party support which are
acceptable and those which are said to be regarded as outlawed.
18. The suggested rationale for construing these rules in the way contended for
by the respondent is essentially that suggested by Tuckey LJ in MW (Liberia) (para
16): first, to avoid the need to investigate third party promises of financial support
which are “necessarily more precarious and . . . more difficult to verify”; and,
secondly, to avoid ECOs accepting promises which cannot be backed by
enforceable undertakings under rule 35: “the rules do not provide for undertakings
to be taken from third parties”. Much the same concerns, indeed, have been
expressed and elaborated upon by Elias LJ in AM (Somalia) (para 73) – suggesting
that “potentially significant administrative costs will be involved in testing the
reliability of third party promises” – and Wall LJ in KS (India) v Entry Clearance
Officer [2009] EWCA Civ 762 (para 57).
19. Whilst I readily acknowledge the legitimacy of each of these concerns, their
strength seems to me much diminished by a number of considerations. First, whilst
I accept that generally speaking unenforceable third party promises are likely to be
Page 10
more precarious and less easily verifiable than a sponsor’s own legal entitlements,
that will not invariably be so. And it would surely be somewhat anomalous if
ECOs could accept promises of continuing accommodation and/or employment
and yet not promises of continuing payments, however regularly they can be
shown to have been made in the past and however wealthy the third party can be
seen to be. Are rich and devoted uncles (or, indeed, large supportive immigrant
communities such as often assist those seeking entry) really to be ignored in this
way? A second consideration, never to be lost sight of, is that it is always for the
applicant to satisfy the ECO that any third party support relied upon is indeed
assured. If he fails to do so, his application will fail. That this may be difficult was
recognised by Collins J himself in Arman Ali (page 103):
“I do not doubt that it will be rare for applicants to be
able to satisfy an entry clearance officer, the Secretary
of State or an adjudicator that long-term maintenance
by a third party will be provided so that there will be
no recourse to public funds. But whether or not such
long-term support will be provided is a question of fact
to be determined on the evidence.”
Of course there may be difficulties of investigation. But that is already so with
regard to many different sorts of application and, indeed, is likely to be so with
regard to some of the kinds of third party support already conceded to be
acceptable.
20. With regard to rule 35 undertakings, a number of points arise. First, the rule
does not apply to those seeking entry for a child under rule 297: as already noted
(para 8 above), the rule 6 definition of “sponsor” does not include them. Secondly,
it is entirely a matter of discretion whether in any particular case an undertaking is
sought and, indeed, even assuming it is sought and declined, whether entry
clearance is then refused. Thirdly, these sorts of maintenance requirements long
ante-date the present definition of “sponsor” so that it would be wrong to define
the scope of the former by reference to the latter. Fourth, if the Secretary of State
wishes to increase his opportunities of obtaining undertakings in respect of
maintenance commitments, he can easily amend rules 6 and/or 35 to achieve this.
Indeed, given our conclusion on the joint sponsorship issue to which I shall shortly
come, the Secretary of State already has wider opportunities than he presently
recognises. It is open to ECOs to ask a third party offering long-term support to
become a joint sponsor and give an undertaking to underwrite his commitment.
Page 11
21. Standing back from the detail for a moment, I am strongly inclined to
construe the maintenance requirements in each of these three rules in the same
way, as indeed the majority of the Court of Appeal did in AM (Ethiopia). Policy
considerations aside, there seems to me no sufficient basis for reaching different
conclusions on the issue of third party support depending on which rule or which
version of the particular rule one is construing. No doubt, depending on the precise
language of the particular rule at any given time, one of the competing linguistic
arguments becomes marginally easier, the other marginally more difficult. In the
end, however, none of the variations seems to me in any way decisive of the
meaning. (Carnwath LJ, of course, had no option but to construe the rules
differently, given his view of the ordinary meaning of the words used but
recognising the constraints of stare decisis upon him.)
22. The odd position hitherto arrived at is that Collins J in Arman Ali thought
that rule 281 and the unamended rule 297 allowed third party support; Hodge J in
AA (Bangladesh) and the Court of Appeal in MW (Liberia) thought that the change
in rule 297 made all the difference so that third party support could no longer be
relied upon under that rule. And now in AM (Ethiopia) the majority of the Court of
Appeal has decided that the change in rule 297 did not after all introduce a
prohibition on third party support but merely clarified what the rule had always
stipulated.
23. For my part I would agree that the amendment to rule 297 was neither
intended nor apt to alter the rule’s meaning with regard to third party support.
Rather, it seems that the amendment was a child protection measure, designed to
ensure that children should indeed be coming to live with the relative(s) they are
supposed to be joining and not somebody else entirely. So much, indeed, seems to
have been confirmed by the departmental response to a Freedom of Information
Act request made by some of the appellants as to the reasons for the rule change.
It seems to me, moreover, instructive to note that at the same time as rule 297 was
being amended, rule 317(iva) was being introduced in its present form as too was
rule 310(iv) with regard to adopted children – requiring that the child “can, and
will, be accommodated and maintained adequately without recourse to public
funds in accommodation which the adoptive parent or parents own or occupy
exclusively”, ie in effectively identical terms to the unamended rule 297.
24. Thus far, I have considered this group of rules under Part 8 without
reference to the differing sorts of maintenance requirements imposed in other parts
of the rules. There are arguments here available to both sides.
25. Seemingly in favour of the respondent’s contention – although I did not
understand the Secretary of State to take the point – are rules 41(vi) and 56K(vii)
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(as inserted by Cm 7074) under Part 2 governing respectively visitors and student
visitors and in each case providing that the visitor: “will maintain and
accommodate himself and any dependants adequately out of resources available to
him without recourse to public funds or taking employment; or will, with any
dependants, be maintained and accommodated adequately by relatives or friends.”
Certainly a contrast is struck there between self-support “out of resources available
to him” and support “by relatives or friends” and it could be argued that the
maintenance requirements under Part 8 (whilst, of course, saying nothing in terms
as to “out of resources available to him”) are closer to the former than the latter.
26. As against that, there are a number of rules under Parts 6 and 7 which on
any view make it clear that the applicant for entry cannot rely on third party
support. Prominent amongst these are:
(a) rule 201 which requires a person intending to establish himself here in
business to show amongst other things: “(ix) that his share of the profits of the
business will be sufficient to maintain and accommodate himself and any
dependants without recourse to employment (other than his work for the business)
or to public funds”;
(b) rule 232 which requires that a person seeking to enter as a writer, composer
or artist must show that he “(iv) will be able to maintain and accommodate himself
and any dependants from his own resources without working except as a writer,
composer or artist and without recourse to public funds”; and
(c) rule 263 which requires that someone seeking entry clearance as a retired
person of independent means must show that he: “(iii) is able and willing to
maintain and accommodate himself and any dependants indefinitely in the United
Kingdom from his own resources with no assistance from any other person and
without taking employment or having recourse to public funds.”
27. It is strongly argued on behalf of the appellants that these are the kinds of
provisions needed to prohibit reliance on third party support and that they are
conspicuously lacking from the Part 8 maintenance requirements. There is nothing
in the rules we are construing to say, for example, that the maintenance must come
“from his [or his sponsor’s] own resources with no assistance from any other
person”.
28. Although for my part I would in any event have accepted the appellant’s
contended for construction of the three rules here at issue and hold MW (Liberia)
to have been wrongly decided even without resort to the contrasting language of
these other rules, I am decidedly more impressed by the comparison with the Parts
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6 and 7 rules than the Court of Appeal appears to have been. If, indeed, the
Secretary of State was intent on ruling out third party support in family
reunification cases, even assuming that it could be verified as reliable, then he
could perfectly well have made that plain by using the same sort of language as in
the Parts 6 and 7 cases.
29. I should note at this point a further argument advanced by the appellants
based on article 8 of the Convention. Essentially this is to the effect that it was not
in fact open to the Secretary of State to make plain an intention to rule out third
party support in family reunification cases and, indeed, he could not now do so for
the future. That, it is said, would necessarily be incompatible with the article 8
rights of those seeking family reunification. It is one thing, runs the argument, to
ensure that the public purse is safeguarded by insisting on the verification and
reliability of third party promises of support; quite another to rule out such support
even if it can be verified as reliable. The former is accepted to be justifiable and
proportionate even though it may result in families being kept apart; the latter not
so. It will readily be appreciated that a corollary of this argument is that, even if on
their natural and ordinary meaning the present maintenance requirements would be
understood to prohibit third party financial support, they should be construed not
to do so to avoid violations of article 8.
30. I should also briefly note the respondent’s arguments to the contrary.
Essentially these are, first, that by no means all refusals of entry clearance under
the relevant Part 8 rules will interfere with article 8 rights. This is perhaps most
obviously so in cases under rule 317. But it is true also in cases where on the facts
family reunification could take place abroad. Secondly, and in any event, there is
simply no need to construe the Rules compatibly with the UK’s obligations under
the Convention. Convention compatibility is in any event ensured by rule 2 –
which requires all ECOs and other immigration staff to act in compliance with the
Human Rights Act 1998 – and, if necessary, by a human rights appeal under
section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002. As the
House of Lords said in Huang v Secretary of State for the Home Department
[2007] 2 AC 167 (para 17):
“It is a premise of the statutory scheme enacted by
Parliament that an applicant may fail to qualify under
the rules and yet may have a valid claim by virtue of
article 8.”
It was essentially this second argument which prevailed below – see paras 33-40 of
Laws LJ’s judgment, agreed to by both the other members of the Court.
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31. Given, however, as already indicated, that I would in any event construe the
existing rules as permitting of third party support without any reference to article 8
of the Convention, it is plainly unnecessary to decide the point. Obviously, were
the Secretary of State now to amend the rules to exclude third party support – and
Parliament not then disapprove them – it might well become necessary to do so.
The argument could possibly be affected by the precise form of amendments
made.
32. So much for the primary issue before us. I turn altogether more briefly to
the other issues arising. First, the question of joint sponsors. Although not raised as
an issue in the Statement of Facts and Issues, the respondent wishes to challenge
the conclusion of the majority in AM (Ethiopia) that rules 297 and 317 allow
support by joint sponsors. As to this, the respondent emphasises the repeated
reference in the Rules to the word sponsor in the singular, not least in rules 6, 6A
and 35 which are suggested to be of particular relevance on this issue. The
respondent, however, really has no answer to the commonsense question why a
relative should not seek entry to join more than one person – for example his sons
or brothers – nor to a particular point arising under rule 317(i)(e) and (f). These
two subparagraphs each require that in particular circumstances the person seeking
entry is “mainly dependent financially on relatives settled in the United Kingdom”
(note the plural). True, in paragraph (iii), a further requirement for entry, the word
“relative” returns to the singular; but it can hardly be thought to rule out say, a
parent applying to join two daughters living together in the UK who have jointly
funded the applicant’s life abroad and propose continuing to do so in the UK. Most
conclusive of all, perhaps, is section 78(6)(c) of the Social Security Administration
Act 1992 (the statute referred to in rule 35) which refers to a person who has
“either alone or jointly with a further person, given an undertaking in writing in
pursuance of immigration rules within the meaning of the Immigration Act 1971 to
be responsible for the maintenance and accommodation of the other person.” As,
moreover, already pointed out (para 21 above) such a conclusion actually assists
the Secretary of State to obtain rule 35 undertakings where these are judged
necessary.
33. As to whether, in a case of proposed joint sponsorship, each sponsor must
be named as such in the application form, the question becomes largely academic
once it is recognised that third party financial support in any event falls to be taken
into account under these Part 8 rules. Indeed, as suggested above, it may well be
the ECO, perhaps with a view to obtaining an undertaking, who suggests that the
third party be treated as a joint sponsor. Certainly, so far as KA and MI’s cases are
concerned, it seems to me that KA’s 22 year-old granddaughter, Ayan Abdi, could
well have been treated as a joint sponsor with her mother, Anab Ahmed, and that,
had third party support otherwise been precluded, it would not have been right to
reject the application without at least giving Ayan Abdi the opportunity formally to
become a joint sponsor. After all, the application form recorded in terms that
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“granddaughter, Ayan, will provide third party support”, that “third party sponsor,
Ayan, is in employment”, that “Ayan will provide all living expenses” and that
“the applicant’s granddaughter will ensure sufficient income so there is no
recourse to public funds”. Having succeeded on the main issue, of course, KA and
MI do not in fact need to succeed also on the joint sponsorship issue. Rather this
was a second string to their bow.
34. By contrast, VS does need to succeed also on the issue arising in his case
under rule 317(iii), as to whether he had been “financially wholly or mainly
dependent” on his son. The relevant facts found by the immigration judge as to this
were as follows:
“65. I am satisfied that, since 2005 the appellant has
been in receipt of approximately £100 per month from
the UK. The source of that money has been Mr
Arunan. Mr Arunan has provided the money to the
sponsor who has sent it to his father. I am entirely
satisfied that the money from Mr Arunan was
earmarked for the father. It was not money given to the
sponsor to do with as he wished. It was for the father.
As Mr Arunan said in his witness statement ‘I am
helping him (the sponsor) financially providing £100 a
month to support his father. I am happy to support (the
appellant) and I am able to afford it.’
66. I am satisfied that the appellant is wholly or mainly
dependent on that money in Sri Lanka.”
On those facts the view taken successively by the immigration judge, the AIT and
Carnwath LJ was that VS was not financially dependent on his son “but on the
son’s friend, Mr Arunan, who actually provided the money, the son being a mere
‘conduit’” (para 109 of Carnwath LJ’s judgment). Neither of the other members of
the Court of Appeal expressed a view on this point, having in any event ruled out
Mr Arunan’s continuing financial support under rule 317(iva).
35. I would respectfully disagree with this conclusion on rule 317(iii). This
paragraph is concerned simply to establish the financial link between the
dependent relative abroad and the relative settled here. Provided only that the
relative abroad is getting funds on which he is wholly or mainly dependent and
which he would not be getting save for his relative present and settled in the UK,
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that is sufficient. It is not necessary for the funds ever to have been part of the
settled relative’s own personal resources.
36. Realistically, this issue falls to be decided in the same way as the main issue
of third party support arising under rule 317(iva). I had wondered at one stage of
the argument whether possibly, contrary to Carnwath LJ’s view that rule 317(iva)
could be more easily understood than the other Part 8 rules to allow third party
financial support, it might, because of paragraph (iii), actually be the hardest to
construe in that way. I am now satisfied, however, that, by the same token that the
principal maintenance requirements are indifferent (save as to verification and
reliability) as to the source of the funds which are going to maintain the applicant
after arrival, so too rule 317(iii) is indifferent as to the source of the funds
supporting the relative abroad, provided only that he receives them because of his
settled relative here. Indeed, the relative abroad might well know nothing of the
actual source of the funds, being aware only that they are sent regularly by his
relative here. He understands himself to be dependent on his relative here and in
my judgment he is right to do so. The rule is satisfied.
37. One matter can be disposed of very shortly indeed, AM(1)’s submission
that the AIT erred in law in dismissing his article 8 appeal and that the Court of
Appeal were wrong to have rejected this contention. Essentially it was submitted,
first, that, notwithstanding that the very recent decision of the House of Lords in
Huang was before them, the AIT nevertheless failed to grasp that article 8 claims
involve no additional test of exceptionality, and, secondly, that, although they
acknowledged delay to be “a relevant factor” in the case, the AIT perversely gave
insufficient weight to it. In my judgment there is nothing in either of these
submissions and they were properly rejected by the court below (at paras 81-89 of
Laws LJ’s judgment, agreed to by both the other members of the court).
38. The further matter I need just mention is the issue raised in AM (Somalia) in
respect of AM(2)’s sponsor’s disability and articles 8 and 14 of the Convention
(see para 7 above). Having indicated to counsel at the conclusion of the argument
in AM (Ethiopia) our decision on the central issue of third party support, counsel
for the respondent took specific instructions on AM(2)’s case and stated that in
those circumstances there appeared to be no further objection to the grant of entry
clearance. This being so, it was agreed that argument on the disability
discrimination issue was unnecessary and that it would be appropriate for the
Court merely to record that fact.
39. So far as the other appeals are concerned, it was agreed that AM(1)’s appeal
succeed and the Immigration Judge’s order be restored and that the other 3 appeals
be remitted to the AIT for redetermination in the light of our ruling that third party
Page 17
support is not precluded from consideration under the maintenance requirements of
the relevant rules. Third party offers of financial assistance have been made in
each of these cases: in AM(1) by his daughter and a nephew; in VS (as stated
above) by Mr Arunan; in SA (and AW) by two relatives of the sponsor; and in KA
(and MI) (as stated above) by KA’s granddaughter, Ayan Abdi. Those offers will
now have to be verified and assessed so that decisions can finally be reached as to
whether all or any of these appellants can satisfy the requirement that they could
be adequately maintained in the UK without recourse to public funds.
40. I would accordingly allow all of these appeals and make the orders
indicated.
41. I add just two footnotes. First, I have thought it unnecessary to set out the
facts of these cases beyond the very few details given above where these have been
strictly necessary for the resolution of the issues before us. If anyone is interested
in the fuller facts of these cases, he will find them admirably recounted in the
judgments below.
42. Secondly, throughout this judgment I have continued for convenience to
refer to the appellants by their initials (as they have hitherto been known)
notwithstanding that it was agreed by all that anonymity in these cases (at least for
the adult appellants) is in fact quite unnecessary and therefore inappropriate.
Although Mr Fordham QC left it to the court to decide whether the child, AW,
should remain anonymous, once it is recognised that her mother, SA, is to be
named, there could be no possible reason not to name AW also. The title of this
judgment will duly record all the appellants’ names in full.
LORD HOPE
43. I agree with the judgments of Lord Brown and Lord Kerr. For the reasons
they give I too would allow the appeals and make the orders which Lord Brown
proposes. I also agree with the judgment of Lord Collins.
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LORD RODGER
44. I have read the judgments of Lord Brown and Lord Kerr. I agree with them
and, for the reasons they give, I too would allow the appeals and make the orders
which Lord Brown proposes.
LORD COLLINS
45. I am in complete agreement with the judgment of Lord Brown. I am now
satisfied that MW (Liberia) v Secretary of State for the Home Department [2007]
EWCA Civ 1376, [2008] 1 WLR 1068 (in which I was a member of the court) was
wrongly decided.
46. In that case the evidence was that friends of the mother had been giving her
regular funds to support her child in Ghana, and would continue to do so if the
child were given leave to enter the United Kingdom. The relevant rule was rule
297(v), which requires that that the child must show that the child “can, and will,
be maintained adequately by the parent, parents or relative the child is seeking to
join, without recourse to public funds.”
47. The court was influenced in its conclusion that this rule did not envisage
third party support by the amendments in 2000 to the Immigration Rules. Prior to
the changes maintenance and accommodation were dealt with in a single sub-rule
which said “(iv) can, and will, be maintained and accommodated adequately
without recourse to public funds in accommodation which the parent, parents or
relative own or occupy exclusively.” In R v Secretary of State for the Home
Department Ex parte Arman Ali [2000] INLR 89, Collins J held that the
unamended rule 297(iv) did not preclude third party funding. In MW (Liberia) the
court was invited by the Secretary of State to draw the inference that the rule
change was designed to make it clear that third party support was not envisaged by
the rule. It is clear that that contention influenced the conclusion that the
amendment was intended to have the effect that before entry would be allowed it
had to be shown that the parent had adequate means to support the child: at [16],
and see also [10]. I agreed with this conclusion with regret, and expressed the hope
that consideration would be given to an amendment of the rule to facilitate reunion
where there was verifiable evidence of long-term support.
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48. But the essential plank of this decision has been removed, since it is now
reasonably clear that the purpose of the amendment was not to remove the
possibility of third party support, but to meet the concern that children might be
brought to the United Kingdom and end up living with someone other than the
sponsor, under someone else’s roof and at someone else’s expense. It was a child
protection measure.
49. The overall point in these appeals is that the arguments for the Secretary of
State were founded on the model of a nuclear self-supporting family, which is far
removed from the reality of the situation in the typical immigration case. This is
not a new phenomenon. Members of immigrant communities have always
supported each other.
LORD KERR
50. I am in complete agreement with the judgment of Lord Brown and, for the
reasons that he has given, I too would allow the appeals and make the orders that
he proposes.
51. The relevant rules (rules 281(v), 297(v) – latterly 297(iv) – and 317(iva))
should be interpreted as permitting third party support. It is possible, if one isolates
the words in rule 281(v), “maintain themselves”, to regard them as connoting an
ability to generate sufficient income oneself. Likewise, the words in rule 297(v)
“can, and will, be maintained adequately by the parent”, if separated from their
context, might be considered to impose a requirement that the maintenance of the
child be met by funds belonging exclusively to the parent. So to construe the rules
would produce a distorted result for the reasons that Lord Brown has given. The
relevant words in each provision must be read in conjunction with the phrase
which also appears in both, “without recourse to public funds”. They must also be
considered in terms of the overall purpose of the provisions. The purpose is to
ensure that there is no resort to public funds by family members entering the
United Kingdom to join other family members already settled here. If it can be
shown that funds are reliably available from a third party, that eventuality is
avoided and the purpose of the rules is fulfilled.
52. To interpret the rules as permitting third party support not only accords with
their natural meaning, it avoids the anomaly referred to by Lord Brown in
paragraph 12 of his judgment of permitting third party support for accommodation
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while denying it for maintenance. There is no logical reason for such a distinction
and it would be remarkable if, within the same rule, strikingly similar formulations
in relation respectively to accommodation and maintenance were employed to
bring about a radically different outcome in each case – thus, in rule 281,
according to the respondent, the requirement that there be “adequate
accommodation for the parties and any dependants without recourse to public
funds” (281(iv)) would permit third party support while a requirement that the
parties be “able to maintain themselves and any dependants adequately without
recourse to public funds” (281(v)) would forbid it. I cannot believe that such an
incongruous result was intended.
53. An interpretation of the relevant rules which prohibits third party support
fails to accord any significance to the contrast between these provisions and those
in Parts 6 and 7 which expressly stipulate that income or funds must be self
generated (rules 201, 232 and 263, for instance). It is difficult to understand why,
if the formulation used in rules 281 and 297 was intended to be and was
efficacious to forbid third party support, it was not also employed in the relevant
Parts 6 and 7 rules. It appears to me that the difference in language is far more
likely to be indicative of an intention to permit funds from a third party source in
the rules under consideration in these appeals while disallowing them in the rules
where explicit language is used to achieve that result.
54. The rationale which, it is said, underpins the exclusion of third party
support in the relevant rules is that it is inherently more difficult to police and that
it is precarious to rely on it in order to forestall recourse to public funds. In the
first place, I question whether, even if it is more precarious, that is a legitimate
basis on which to adopt an interpretation that seems at odds with the natural and
plain meaning of the words. But, in any event, I have been persuaded, particularly
by the examples given by Mr Fordham QC on behalf of the appellants, SA and
AW, that the exceptions to self generated income that undeniably exist are at least
as “precarious” as funds supplied by, say, a close relative. The vaunted
precariousness of support from a third party source is, in my opinion, no greater
than that which might arise in the course of the ordinary vagaries and vicissitudes
of life. Promised employment may not materialise or may last for only a short
time. Dependence on benefits received by the family member who is settled in the
United Kingdom may cease. As Lord Brown has pointed out, there is no warrant
for (and much to be said against) the view that third party support occupies a
particular category of uncertainty.
55. In any event, as the appellants have submitted, availability of third party
support as a means of fulfilling the rules’ requirements proceeds on the premise
that the applicant can demonstrate that he or she will not be a drain on public
funds. This may well prove a formidable hurdle in most cases. But it is entirely
Page 21
conceivable that support from a number of family members and friends of the
person seeking to enter will be a more dependable resource and a more effective
prevention of dependence on public funds than prospective employment. As Lord
Pannick QC, for MI and KA, pointed out, the practical reality in many of these
cases is that funding will come from a number of sources.
56. On the construction to be placed on rule 317(iii) I am again in entire
agreement with Lord Brown. This rule specifies that the person seeking indefinite
leave to enter must be financially dependent on the relative present and settled in
the United Kingdom. Does that mean that the UK resident must be in a position to
meet the dependency of his relative from his own resources or does it merely mean
that the financial dependency exists? In my view, the latter interpretation is plainly
to be preferred. The import of the rule is to require that the UK resident should
have the capacity to sustain his relative’s dependency but there is nothing in its
language that prohibits the funds from which he is able to do so coming from an
external source. Financial dependency for the purposes of the rule is established by
the fact of payment by the resident relative. It is not displaced from that condition
simply because the money for the payment comes from a different source.