England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL
Dr. HH STOREY-SENIOR IMMIGRATION JUDGE
OA/19335/2006

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th December 2007

Lord Justice Tuckey:

1. Rule 297 (v) of the Immigration Rules (HC 395) requires that a child of parents or a relative present and settled in the UK seeking entry to the UK must show that he:

can and will be maintained adequately by the parent, parents or relative [he] is seeking to join without recourse to public funds.

The question on this appeal is whether this requirement is met if it can be shown that the child will be maintained, not by the parent he is seeking to join, but by adequate financial support from one or more third parties. In AA (3^rd. Party Maintenance R 297 (v)) Bangladesh (2005) UKAIT 00015 the AIT held that it could not. This decision has been applied by the Tribunal in a number of later cases but has not yet been tested in this court.

2. The female appellant in this case, MW, was born in Liberia on 5 June 1994. Her mother fled the war in Liberia with MW and her brother at the end of 1999 and left the two children in the care of a family friend in the Ivory Coast when she came to the UK. She was granted exceptional leave to remain here in 2005. She is separated from MW's father but he is also present and settled in the UK. In June 2005 MW applied for leave to enter as her mother's daughter. By this time her carer in the Ivory Coast had died and she and her brother had been taken to Ghana where they were being cared for by another family friend. The appellant was interviewed in October 2005 and entry was refused by the clearance officer in Accra the following May because the mother was in receipt of benefits, the third party letters of financial support were not genuine and her accommodation was inadequate.
3. The appellant's appeal to the AIT, which raised the point about the meaning of Rule 297 (v) to which I have referred and a separate Article 8 claim was dismissed by IJ Kaler in August 2006.
4. The IJ found that the mother had no earned income and was reliant on state benefits. She lived in a council flat with her two other children aged 4 and 5 and was a student on a course in health and social care. She had been receiving financial assistance from her friends to send money to Ghana for MW. The mother had given evidence to this effect to the IJ Three of her friends, whom she knew through her church, also gave evidence about their financial circumstances and their willingness to continue giving the mother money regularly to enable her to support the appellant. Collectively they said they were prepared to give her £50-£70 per week for this purpose.
5. The IJ held that she was bound to find that the requirement of Rule 297 (v) had not been met by the decision in AA. She did however find that the mother's accommodation was adequate. As to the Article 8 claim she found that MW was being cared for by the family friend in Ghana where she was fed, clothed and attended school. Her mother had been able to visit her there. MW's brother had gone missing and was presumed to be living in the streets. This had upset MW who had become difficult to live with and blamed her mother for her predicament. Nevertheless the IJ concluded that the decision to refuse the appellant entry was not disproportionate.
6. Reconsideration of the IJ's decision was ordered by a senior IJ in September 2006 on the grounds that she had not made adequate findings of fact on the evidence which she had heard about third party support and the evidence relied on for the purpose of the Article 8 claim and that AA was wrongly decided.
7. The reconsideration took place before IJ Davey in March 2007. It was common ground at this hearing that IJ Kaler had not dealt properly with the evidence which she had heard about third party support. I have already summarised the effect of that evidence. It was also common ground that the mother would not be able to support the appellant from her own income which only came from public funds. The IJ concluded that the mother had been supported by third parties for a significant period and that the evidence established that they would continue to provide her with sufficient money adequately to maintain the appellant in the UK. He went on to decide that Rule 297 (v) did not preclude such third party support if the money provided could be regarded as the parent's own money. This would be the case if it was paid under a court order, covenant or legally binding agreement, but money paid on a voluntary basis where the donor's financial circumstances were open to change could not be so regarded. So the voluntary arrangements by the mother's friends, although genuinely offered, lacked the necessary formality to ensure their continued availability and so did not meet the requirements of the rule.
8. As to the Article 8 claim it was conceded that IJ Kaler's decision was wholly unsustainable because her analysis did not contain the necessary findings of fact or apply the relevant case law. IJ Davey therefore found that she had made a material error of law in her Article 8 decision. However he did not make any further findings of fact about this but simply held that the appeal should be dismissed because the alleged interference was not sufficiently severe to engage Article 8 (1) but, if it was, there were no truly exceptional circumstances to render the decision to refuse entry disproportionate.
9. I have already identified the important point which arises under the Immigration Rules and set out the requirement which is in issue on this appeal. Rule 297 is in Part 8 of the rules which deals with family members. A number of the rules in this Part contain a similar requirement to rule 297 (v). Although we were taken to some of these rules and rules in Part 6 which deal with businessmen, investors and writers I do not think they really help to decide what the rule in question means. It is not necessary to set out the whole of that rule but there are a number of requirements which have to be met by persons seeking indefinite leave to enter the UK as a child of a parent or relative. In this case the requirements which are accepted or have been found to be met are that both parents are present and settled in the UK, MW is under the age of 18 and is not leading an independent life and (paragraph (iv)) that she can and will be accommodated by her mother without recourse to public funds in accommodation which the mother occupies exclusively.
10. The language of paragraph (iv) mirrors that of paragraph (v). The rules were amended to how they are now in October 2000. Before this maintenance and accommodation were dealt with in a single paragraph which said:

… (iv) can and will be maintained and accommodated adequately without recourse to public funds in accommodation which the parent or relative owns or occupies exclusively.

It is clear, I think, that when the rule was in this earlier form the maintenance requirement could be met if it could be shown that adequate third party financial support was available because it did not say anything about who was to maintain the child. In R v Secretary of State for the Home Department ex party Arman Ali [2000] Imm AR 134, decided a year before the rules changed, Collins J had construed it in this way. A number of other amendments were made to the rules at the same time to coincide with the time the HRA came into force. However it was not suggested that this amendment was made for that reason. The inference we were invited to draw by Mr Kovats for the Secretary of State was that it was made to meet the decision in Arman Ali where the judge had referred to lack of clarity and conflicting Tribunal decisions. I think he may be right about this. In AA the Tribunal note that they had been informed by the Home Office presenting officer that:

Third party support had been relied on too frequently previously in this type of case. Evidence of such support was often not presented to entry clearance officers and it could not be checked. It was said to be a question of child protection that money to support a child should come from the sponsor/parent who had to provide evidence to the ECO of the position to ensure checks could be made in the UK as the application was being considered.

11. So what does the present rule mean? Mr Gill submits that its purpose is to promote and facilitate family life and enable it to take place in the UK whilst ensuring that this does not involve recourse to public funds. Permitting reliance on third party support promotes the overall purpose of the rule and avoids recourse to public funds; not permitting it severely damages the right which the rule was designed to promote. The words "by the parent" should be construed so as to require the parent to do no more than secure that the child will be adequately maintained. This reflects changing ideas of family life in a pluralistic society where wider communities or extended families support each other in various ways. If all third party support is excluded parents could not, for example, rely on assistance from a charity, church or other social benefactor or maintenance from a partner or ex-partner. If the rule had been intended to exclude third party support of any kind it would have said so. If, contrary to these submissions, the rule does have this effect then it is inconsistent with Article 8 and should be read down to permit third party support. If this could not be done the rule should be declared unlawful or quashed on grounds that it is unreasonable or ultra vires the rule making power in section 3 (2) of the Immigration Act 1971.
12. In considering such submissions it is useful to start by considering the ordinary and natural meaning of the words in question, bearing in mind that one is not construing a statute but rules which spell out in some detail in a way which is intended to be understood by the world at large the practice to be followed for regulating the entry into the UK of persons who require leave to do so. The purpose of the rule in question is no doubt to allow entry in order to promote family life between parent or relative and child without recourse to public funds. But this does not mean that whenever that is the position entry is to be permitted and the rules should be construed to allow it if that is not what they say.
13. I think what the rule says is clear: the child is required to be maintained by the parent or relative she is seeking to join without recourse to public funds. If she is to be maintained by anyone else the requirement is not met. Securing maintenance from some third party is not "maintenance by the parent". So if the third party financial support is going directly to the child it obviously does not count. But what if the support is being or is to be given by the third parties to the parent to enable the child to be maintained, as will usually be the case? Can it then be said that the parent is maintaining the child? I think the simple answer to this question is no. In reality it is the third parties who are doing so. The parent is unable to do so without recourse to public funds and is merely acting as a conduit between the donor and the child. This will be the case wherever the applicant is relying on support of the kind on offer in this case which was of voluntary and genuine gifts to the parent by a number of people. It is not possible to characterise monies received in this way as income or assets of the parent. Nor could it be because in a case such as this, if it was, it would have to be declared to the Benefits Agency. The risk if not the reality that it would not be declared would involve recourse to public funds.
14. Neither party to this appeal supported the IJ's "necessary formality" test but I can see 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. But I do not think I should attempt to explore or define, the boundaries of the rule. My decision is confined to arrangements of the kind in question in this case.
15. What I have said accords with the view taken by the AIT in AA, a distinguished Tribunal presided over by its President, Hodge J. At paragraph 30 he said:

We are satisfied that the use of the definite Article limits the class of persons who can provide the maintenance. We regard the formulation as pointing clearly to a requirement that where a child is joining a parent under paragraph 297 it is that parent who must maintain that child. Third party support by relatives or otherwise cannot satisfy the rule as it now is.

The President applied the same reasoning to his later decisions in AM (third party support not permitted Rule 281 (v)) Ethiopia (2007) UKIAT0 0058 and VS (para 317 (iii) – no third party support) Sri Lanka UKAITO 0069, where the rules concerned contained similar provisions to Rule 297 (v) for spouses and dependant relatives applying for leave to enter. At para. 22 in AM the President said:

We are aware of the view, widely supported by those representing appellants, that because the rules are silent on whether third party support is permissible, it must necessarily be so. We take the opposite view. The issue of maintenance is of importance in many of the immigration rules. Had it been intended that third party support should satisfy a maintenance requirement we would expect the rules to say so and to set out the way in which such maintenance might satisfy the requirement.

I agree.

16. I do not accept that the other considerations urged on us by Mr Gill or Article 8 compel any other construction of the Rule. In framing the amendment to the rule the Immigration Authorities were entitled to take the view that before entry would be allowed it had to be shown that the parent had adequate means to support the child. It is the parent who has the legal obligation to do so and the one who has or should have the greatest incentive to maintain the child. Third party arrangements of the kind in question in this case are necessarily more precarious and, as the Tribunal said in AA, 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. Mr Gill's submissions that the rule was unlawful, unreasonable or ultra vires the statute fail for the same reasons.
17. Accordingly I would dismiss the appeal under the Immigration Rules although for reasons different to those given by the IJ Davey.
18. I can deal with the Article 8 appeal quite shortly. Mr Kovats concedes that IJ Davey's treatment of proportionality was defective because he did not make material findings of fact on the evidence which was before him about the conditions in which the appellant was living in Ghana and did not have proper and visible regard to the relevant principles in making his decision (see now paras 34 – 37 of this court's decision in AG (Eritrea) v SOSH [2007] EWCA Civ. 80). For these reasons Mr Kovats accepts that the Article 8 appeal should be allowed and the case should be remitted to the Tribunal for reconsideration of the Article 8 claim. Mr Gill suggested that we could and should uphold the claim ourselves. But we are not a fact finding court; further facts need to be found in order to make a proper assessment of this claim. That can only be done by the Tribunal.
19. I would therefore allow the Article 8 appeal and remit this claim for reconsideration by the Tribunal.

Lord Justice Lawrence Collins:

20. I agree with the order proposed by Tuckey LJ, and, with some regret, that the appeal under the Immigration Rules should be dismissed. I hope that consideration can be given to amending the Rule, consistently with the policy considerations mentioned by Tuckey LJ in paragraph 16 of his judgment, to facilitate reunion where there is verifiable evidence of long-term support from third parties.

Lord Justice Rimer:

21. I agree with Tuckey LJ's judgment. I too would dismiss the appeal under the Immigration Rules. I would also allow the Article 8 appeal and remit this claim for reconsideration by the Tribunal.