Disability living allowance – Immigration policy – Income support – Maintenance – Reliance on third-party support

(1) AM (Ethiopia) (2) SA (Somalia) (3) MB (Pakistan) (4) MI (Somalia) & anr v Entry Clearance Officer: CA (Civ Div) (Lords Justice Pill, Laws, Carnwath): 16 October 2008

In conjoined appeals (AM, SA, MB, VS, MI) the court was required to determine whether for the purposes of paragraphs 281, 297 and 317 of the Immigration Rules a person seeking entry into the UK could rely on third-party financial support to establish that they would not require recourse to public funds. The appellants’ applications for entry clearance to join family members in the UK had been refused. AM, VS, SA, and MI’s appeals were rejected on the grounds that financial support from the private resources of third parties was not sufficient under the rules. AM and MB’s appeals were rejected on the grounds that financial support from their sponsor’s income support and disability living allowance was not sufficient under the rules. The secretary of state later accepted that it had been wrong to exclude the sponsor’s or the parents’ disability living allowance as a possible source of support. In MI’s case, it had been argued that the third party providing support was in reality her sponsor even though not named on the entry clearance form. It was submitted that: (1) the rules were to be interpreted according to their ordinary meaning having regard to their purpose, which was to promote family life while ensuring that no additional burden fell on the state, and it would be repugnant to article 8 of the European Convention on Human Rights 1950 if the rules were construed to disallow third-party support; (2) it was relevant when construing the language of the rules to take into account that the unamended version of rule 297(v) did not stipulate that a child’s maintenance had to be provided by a parent and certain features of rules 281 and 317 bore a resemblance to the unamended rule, there was a specific rationale in the amendment of rule 297(v) to exclude third-party support that did not apply to rules 281 and 317, and rules 281, 297 and 317 did not contain a specific requirement ruling out third-party support, whereas the draftsman had included such a requirement in the rules dealing with certain classes of economic entrant; (3) income support was no different from disability living allowance and should be taken into account.

Held: (1) (Carnwath LJ dissenting on the meaning of rule 317, but concurring in the result) The nature of the rules was that they had no overarching implicit purpose. Their only purpose was to articulate the secretary of state’s specific policies with regard to immigration control from time to time, as to which there were no presumptions, liberal or restrictive, MB (Somalia) v Entry Clearance Officer [2008] EWCA Civ 102, [2008] Imm AR 490 applied. An immigrant’s article 8 rights had to be protected whether or not that was through the medium of the rules. It followed that the rules were not of themselves required to guarantee compliance with article 8, R v Secretary of State for the Home Department ex parte Ali [2000] Imm AR 134 QBD considered. The passage in that case that founded the construction of the rules on article 8 was disapproved.

(2) The rules were neither main legislation nor subordinate legislation, so principles of statutory construction did not apply. The nature of the rules as policy guidance required a broad commonsense approach to their construction, Odelola v Secretary of State for the Home Department [2008] EWCA Civ 308, Times, 2 June 2008 and R v Immigration Appeal Tribunal ex parte Alexander [1982] 1 WLR 1076 HL applied. Adopting that approach, rules 281, 297 and 317 disallowed reliance on third-party support. Those rules concerned persons seeking entry to the UK to join family members, so the part played by the sponsor or parent was of the first importance. The rules contemplated that the entrant would live with the family members who would be the source of the entrant’s maintenance and support. Differences of language within the rules and between the rules and those dealing with economic entrants were insignificant. The fact that rule 297(v) disallowed third-party support could not be challenged, MW (Liberia) v Secretary of State for the Home Department [2007] EWCA Civ 1376 [2008] 1 WLR 1068 followed. No distinction of principle could be found between that rule and rules 281 and 317. Accordingly, the appeals in VS and SA were dismissed.

(3) In the case of MB, income support paid to his mother could not properly be taken into account because income support was assessed to be the bare minimum required for one person and so could not be considered adequate for more than one person, KA (Pakistan) (2006) UKAIT 00065 applied. Further consideration was needed into the adequacy of the disability living allowance. His appeal was allowed and the case remitted.

(4) In the case of AM, the judge’s findings could not support a conclusion that the sponsor’s disability living allowance alone would be available and suffice to provide for AM’s support. The appeal was allowed and the case remitted.

(5) (Carnwath LJ dissenting) The requirement to name a sponsor on the entry clearance form was not a pedantic technicality. A sponsor might be requested to give an undertaking, and it might be thought necessary or desirable to carry out checks on the standing of the sponsor in the UK. If the sponsor had not been named on the form then the system would be unworkable. MI’s appeal was dismissed.

Appeals allowed in part.

Manjit Gill QC, James Collins (instructed by Sheikh & Co) for the first appellant; Philip Nathan, Sophie Weller (instructed by Hersi & Co) for the second appellant; Ramby De Mello, Tony Muman (instructed by JM Wilson) for the third appellant; Manjit Gill QC, Danny Bazini (instructed by Kingston and Richmond Law Centre (SWLLC)) for the fourth appellant; Rory O’Ryan (instructed by the Treasury solicitor) for the fifth appellant; Jonathan Hall, Amy Mannion (instructed by AS Law and the Treasury solicitor) for the Home Department.