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)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
16 December 2009
Heard on 9, 10 and 11 November 2009
|Appellant (AM 1)
Manjit Gill QC
(Instructed by Sheikh and Co Solicitors)
Monica Carss-Frisk QC
(Instructed by Treasury Solicitors)
|Appellant (AM 2)
Michael Fordham QC
(Instructed by Refugee and Migrant Justice)
|Appellant (MI and KA)
Lord Pannick QC
(Instructed by Jackson & Canter LLP)
|Appellant (SA and AW)
Michael Fordham QC
(Instructed by Hersi & Co Solicitors)
Manjit Gill QC
(Instructed by Kingston and Richmond Law Centre)
(Instructed by Equality & Human Rights Commission)
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):
"(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."
"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 long-term 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.
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, fiancι, 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."
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.
"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.)
"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 ( 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).
"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.
(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."
"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.
"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).
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.