Refusal of entry ? Family members ? Claimants seeking leave to enter United Kingdom to join relative ? Third parties offering to contribute to support ? Whether third party support to be included when considering whether claimants could be maintained without recourse to public funds ? Statement of Changes in Immigration Rules (1994) (HC 395) (as amended by Statement of Changes in Immigration Rules (2000) (Cm 4851), rr 34, 42), rr 281(v), 297(v), 317(iva)
SC: Lord Hope of Craighead DPSC, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood, Lord Collins of Mapesbury, Lord Kerr of Tonaghmore JJSC: 16 December 2009
Financial support provided by third parties could be taken into account when considering whether a person who was seeking leave to enter the United Kingdom to join a sponsoring relative could be maintained without recourse to public funds.
The Supreme Court so held in (1) allowing the appeals of Ahmed Mahad, Sahro Ali, Amal Wehelia, Malyun Ismail, Khadra Abdillahi and Vettivetpillai Sakthivel against the decision of the Court of Appeal (Pill, Laws, Carnwath LJJ) on 16 October 2008, sub nom AM (Ethiopia) v Entry Clearance Officer  EWCA Civ 1082, dismissing their appeals or, in Mahad?s case, allowing his appeal but only in part, from decisions of the Asylum and Immigration Tribunal upholding decisions by entry clearance officers (?ECOs?) to refuse them leave to enter the UK on the ground that third party support was precluded under rr 281(v), 297(v) and 317(iva) of the Immigration Rules; and (2) allowing the appeal of Abdi-Malik Muhumed against the decision of the Court of Appeal (Mummery, Maurice Kay, Elias LJJ) on 1 July 2009, sub nom AM (Somalia) v Entry Clearance Officer  EWCA Civ 634, dismissing his appeal from a decision of the Asylum and Immigration Tribunal upholding the decision by an entry clearance officer to refuse him leave to enter the UK on the ground that third party support was precluded under r 281(v).
LORD BROWN JSC said that Pt 8 of the Immigration Rules set 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: r 281 (spouses or civil partners); r 297 (children); r 317 (parents, grandparents and other dependent relatives). All of them included a requirement that those seeking entry would be able to be accommodated and maintained here without recourse to public funds. The question was whether that requirement permitted third party support, as the claimants submitted, or whether it precluded maintenance provided by anyone other than the sponsor, as the ECOs contended. In R v Secretary of State for the Home Department, Ex p Arman Ali  INLR 89 Collins J held that r 281(v) and the then unamended r 297(iv) (r 297(v) after amendment) did not preclude long-term maintenance by third parties. In AA (Third Party Maintenance) Bangladesh  Imm AR 328 the aAsylum and Immigration Tribunal held that under r 297(v), as amended, third party support could not be considered and that decision was endorsed by the Court of Appeal in MW (Liberia) v Secretary of State for the Home Department  1 WLR 1068. The rules all allowed family members to live together in accommodation owned and provided by a third party. Certain other funds or forms of assistance were also accepted to be legitimately available in satisfying the maintenance requirement. Third party support in fact was recognised to be acceptable so long as there was a legal obligation to provide it. Why, in those circumstances, should one read the provisions in rr 281(v), 297(v) and r 317(iva) as meaning or necessarily implying ?without assistance from third parties? rather than meaning simply ?will be able to cope financially?? Importantly, each maintenance requirement paragraph ended with the words ?without recourse to public funds?. That plainly was the governing consideration in all those provisions. It was always for the claimant to satisfy the ECO that any third party support relied upon was indeed assured. If he failed to do so, his application would fail. Accordingly, his Lordship accepted the claimants? contended for construction of the three rules at issue and held MW (Liberia) to have been wrongly decided. In those circumstances, there was no further objection to the grant of entry clearance in the fifth case and argument on the disability discrimination issue which had arisen below was unnecessary. It was also agreed that entry clearance would be granted in the first case. The other three cases would be remitted to the tribunal for redetermination.
LORD COLLINS and LORD KERR JJSC gave concurring judgments and LORD HOPE DPSC and LORD RODGER JSC agreed.
Appearances: Manjit Gill QC and James Collins (instructed by Sheikh & Co) for Mahad; Michael Fordham QC, Philip Nathan and Sophie Weller (instructed by Hersi & Co) for Ali and Wehelia; Lord Pannick QC and Rory O?Ryan (instructed by Jackson & Canter LLP, Liverpool) for Ismail and Abdillahi; Manjit Gill QC, Danny Bazini and Alexis Slatter (instructed by Kingston & Richmond Law Centre) for Sakthivel; Michael Fordham QC and Joanna Stevens (instructed by Refugee and Migrant Justice) for Muhumed; Monica Carss-Frisk QC and Jonathan Hall (instructed by Treasury Solicitor) for the ECOs; Catherine Casserley (instructed by Equality and Human Rights Commission, Manchester) for the Equality and Human Rights Commission, intervening.
Reported by: Jill Sutherland, barrister