AA (3rd party maintenance R297 (v)) Bangladesh Rev 1 [2005] UKAIT 00105 (21 April 2005) [2005] UKIAT 00105

UKIAT
AA (3rd party maintenance R297 (v)) Bangladesh Rev 1 [2005] UKAIT 00105 (21 April 2005)
[2005] UKIAT 00105 · 2005-04-21
[1]AA (3 rd party maintenance R297 (v)) Bangladesh [2005] UKAIT 00105 ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 12 April 2005 Date Determination notified: 21 April 2005 Before The Hon Mr Justice Hodge (President) Mr H J E Latter (Senior Immigration Judge) Professor A Grubb (Senior Immigration Judge) Between Entry Clearance Officer – Dhaka APPELLANT and AA RESPONDENT For the appellant: Mr M Blundell, Home Office Presenting Officer For the respondent: Mr A Azahr, Counsel DETERMINATION AND REASONS This case decides that a child wishing to join a parent settled in the United Kingdom cannot meet the requirement of paragraph 297(v) of the Immigration Rules when he is to be maintained not by the parent he is joining but by one or more third parties. The decision in Arman Ali cannot be relied on for the proper interpretation of Rule 297(v). In a determination promulgated on 21 October 2003, the Adjudicator Mr D.C. Gerrey, allowed the appeal of the claimant and directed that entry clearance be granted to the claimant to enable him to join his father, a person settled in the United Kingdom. The Entry Clearance Officer applied for permission to appeal under the terms of the Nationality, Immigration and Asylum Act 2002. The Immigration Appeal Tribunal acting by Mr J. Freeman, Vice President, granted permission to appeal.[2]The Asylum and Immigration (Treatment of Claimants etc.) Act 2004 established the Asylum and Immigration Tribunal. By article 5 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Commencement no. 5 and Transitional Provisions) Order 2005 (SI 2005/230), it is provided that any appeal which immediately before the commencement of the 2004 Act is pending before the Immigration Appeal Tribunal shall, after commencement of that Act, be dealt with by the Asylum and Immigration Tribunal as if it had originally decided the appeal and it was reconsidering its decision. The commencement date of the 2004 Act and the Transitional Provisions Order was 4 April 2005. This case was heard on 12 April 2005 and is therefore a reconsideration case.[3]The Asylum and Immigration Tribunal (Procedure) Rules 2005 provide at Rule 62(7) that a reconsideration shall be limited to the grounds upon which the Immigration Appeal Tribunal granted permission to appeal. In accordance with paragraph 14.8 of the Practice Directions of the President of the AIT issued on 4 April 2005, we must consider whether the Adjudicator made a material error of law. The Adjournment Application[4]Counsel for the claimant applied for an adjournment. The basis for the application was that the claimant had very recently changed solicitors. The reasons for this are not known. Counsel himself had only been instructed on Friday 8 April 2005 so preparation time had been short. There had been no opportunity to consider the skeleton argument from the Entry Clearance Officer's side. Counsel for the Entry Clearance Officer accepted there had been late filing of the skeleton on his side and did not oppose the adjournment.[5]We refused the adjournment application. Permission to appeal had been granted on 5 January 2004. The case had come on for hearing before the IAT on 20 July 2004. It was adjourned at the claimant's request. A further hearing for 15 September 2004 was vacated and the case transferred for hearing before another panel. The matter came before the IAT again on 11 November 2004 when the matter was again adjourned so that skeletons could be filed and the matter listed before a fully legally constituted Tribunal. We consider there had been very significant delay in dealing with this case. Both counsel had in fact prepared skeleton arguments and had had preparation time. The overriding objective required that the matter should be dealt with. The Entry Clearance Application[6]The claimant is citizen of Bangladesh. He was born on 8 October 1984. He applied on 3 September 2001 for entry clearance. His sponsor was his father, the claimant's only surviving parent as his mother had died some years previously. The claimant wished to be settled permanently in the United Kingdom. He was at the time of the application nearly seventeen.[7]The claimant was interviewed by the Entry Clearance Officer in Dhakar on 19 June 2002. His application was refused on that date. Notice of appeal was received on 22 July 2002 together with evidence of support, but limited to third party support only. The Entry Clearance Officer set out reasons for refusal in an explanatory statement dated 1 October 2002. In summary, the Entry Clearance Officer was not satisfied as to how the claimant would be maintained in the UK; he regarded the living accommodation proposed as cramped; he concluded that the claimant had failed to establish that .......... was his father. The claimant was said not to have fulfilled the requirements of paragraph 297 of HC 395. Previous Applications[8]The background papers also show the claimant applied for entry clearance with his father as sponsor on 23 January 1996. He was interviewed on 19 September 1996. He agreed to a DNA test which was received on 10 December 1996 by the then entry clearance officer. On 22 December 1996 the ECO refused the claimant's application for a certificate of entitlement to the right of abode in the United Kingdom as the son of .......... on the basis that the claimant was not related as claimed. A notice of appeal appears to have been lodged against this decision but the result of any such appeal is not known.[9]A further application for entry clearance was received from the claimant on 23 May 1999. This too was refused on 10 February 2000. The basis for the refusal was that the ECO was not satisfied that the claimant was related as claimed to .......... and was also not satisfied that the claimant would be adequately maintained and accommodated in the United Kingdom without recourse to public funds. There appears to have been no appeal against this decision. The Adjudicator's Decision[10]The claimant was represented before the Adjudicator. The sponsor was unable to give evidence as to paternity because of his own mental health. Evidence was given by a cousin of the claimant who said he was providing £50 - £60 a month on average for the appellant and by another cousin who is contributing between £40 - £60 per month to the claimant. The sponsor's wife, the claimant's stepmother also gave evidence, saying that the family were currently on benefits since her husband, the sponsor, had an accident and had become unwell some twelve to thirteen years before the hearing.[11]The ECO, the respondent to the appeal before the Adjudicator, did not appear and was not represented. The Adjudicator considered the DNA evidence provided and decided that the claimant was related to .......... as claimed.[12]He also concluded that funds were remitted on a regular basis to the appellant from family members in the United Kingdom. He accepted the evidence from .......... as honest and truthful. He accepted their evidence as to the level of support they were giving and their willingness to continue to provide it. He further noted that there would be no statutory overcrowding in the accommodation provided by the claimant's father. He concluded that the claimant had satisfied him to the appropriate standard that he met the requirements of paragraph 297 of HC 395. He noted the appellant was at the time of the hearing over the age of eighteen but he considered his age at the date of the decision under appeal and allowed the appeal. The Permission Decision[13]The Entry Clearance Officer appealed. The first ground of appeal is on the basis that the Adjudicator erred in law by taking into account third party support as the appellant's main form of support/maintenance in the UK. It is clear, it is said, from the Immigration Rules that the parent or parents have to provide that maintenance.[14]The second ground of appeal was that the Adjudicator failed to set out full reasons why he believed the appellant is related to .......... as claimed and the DNA profile relied on is not conclusive.[15]The Vice President gave permission on both grounds. He regarded both grounds as arguable. The Paternity Issue[16]We considered whether the Adjudicator had made a material error of law in the conclusion he reached on the paternity issue. He had before him a DNA report which can be read in two ways, potentially excluding or potentially including the claimant as the son of ........... We consider the Adjudicator analysed the report appropriately. He accepted the evidence that the claimant had always asserted was his father. There was no other evidence forthcoming on this issue. He concluded 'the appellant is related to .......... as claimed' i.e. the sponsor in this case is the father of the claimant. This is a conclusion that was open to him on the facts as found by him. He gave reasons. We do not regard there to have been any material error of law in relation to this aspect of the case. The Third Party Support Issue[17]We heard detailed submissions from both counsel on what may be described in shorthand as the third party support issue. Can a child wishing to join a parent settled in the United Kingdom meet the requirements of the Immigration Rules when he is to be maintained not by the parent he is joining but by one or more third parties? Counsel for the ECO submits that the Immigration Rules are clear. A child joining a parent must be maintained solely by that parent without recourse to public funds. Counsel for the claimant submitted that long term third party support will satisfy the Immigration Rules. The Immigration Rules are not a precise code and a decision supporting the claimant's contentions would be a humanitarian interpretation of the Rule.[18]In particular, it was the claimant's case that the decision in R v Secretary for the Home Department ex parte Arman Ali [2000] INLR 89 in relation to this matter was still good law. In Arman Ali , Collins J was considering an application for judicial review of the refusal of the Secretary of State to accept an extrastatutory recommendation made by an Adjudicator in an entry clearance case. Among other matters he ruled that the maintenance requirements in the (then) Immigration Rules where a child was to join a parent did not rule out long term maintenance by third parties.[19]The relevant Immigration Rule has been changed since Arman Ali was decided. It is submitted on behalf of the ECO that the change was made deliberately to preclude the possibility of third party maintenance in cases such as this. It is therefore necessary to consider the Immigration Rules. The Immigration Rules[20]The Immigration Rules (HC 395) were laid before Parliament on 23 May 1994. They replaced the previous Immigration Rules HC 251. There have been a number of Statements of Changes to the Immigration Rules made on a regular basis from 1994 onwards. The first part of the relevant rule for these purposes is paragraph 297 of HC 395 as follows: ' Requirements for indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom . 297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he ...(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances .. (a) both parents are present and settled in the United Kingdom; or (b) both parents are being admitted on the same occasion for settlement; or (c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or (d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or (e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing; or (g) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and(ii) is under the age of eighteen; and(iii) is not leading an independent life, is unmarried, and has not formed an independent family unit; and(iv) can, and will be maintained and accommodated adequately without recourse to public funds in accommodation which the parents, parents or a relative own or occupy exclusively.[21]Paragraph 297(iv) above was the relevant Immigration Rule on 28 October 1999 when Arman Ali was decided. A statement of change in Immigration Rules was made by Command Paper 4851 from 2 October 2000. The following subparagraphs (iv) to (vi) were substituted for (iv) above (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 of 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; and (vi) holds a valid United Kingdom entry clearance for entry in this capacity.'[22]The claimant's appeal was lodged in July 2002 and so has at all times been considered having regard to the changes in the Immigration Rules substituted by Cm 4851. The Adjudicator found that the claimant would be adequately maintained without recourse to public funds. The source of that financial support was however the claimant's cousins. The evidence before the Adjudicator from the sponsor's wife, the claimant's stepmother, was that that family of the sponsor were on benefits. Hence there was no evidence either before the Entry Clearance Officer or the Adjudicator that the sponsor, the only possible parent for the purposes of paragraph 297, could support the claimant in the UK. No formal concession appears to have been made as to the sponsor's inability to support the claimant. However the record of proceedings prepared by the Vice Present who heard the case and adjourned it on 11 November 2004, says 'Representatives accept that the father cannot provide maintenance without additional recourse to public funds. There was evidence of third party support before the Adjudicator. The claimant was seventeen at the date of the ECO decision. Therefore third party support would not be needed for any extended time as claimant is able bodied and could be self-sufficient in a reasonable time.'[23]We have proceeded on the basis that the sponsor in this case the father was not able to maintain the claimant without recourse to public funds. The Immigration Rules have changed since Arman Ali was decided. The implication of the ECO's case is that they were changed to override the decision in Arman Ali . Arman Ali[24]The applicant in Arman Ali applied for judicial review of a refusal by the Secretary of State for the Home Department to implement a recommendation of an adjudicator. The original claim had been made in 1991 under the then Immigration Rules HC 251. The applicant of Bangladeshi origin had sponsored an application by his wife and six children to join him in the UK. The application had been refused as the ECO was not satisfied there was adequate maintenance and accommodation available without recourse to public funds.[25]The adjudicator was satisfied that at the time of application the applicant and her children could not satisfy the then rules but at the time of the appeal there was accommodation and maintenance available. So entry clearance had been recommended. In a wide ranging judgement Collins J decided the refusal of the Secretary of State to accept the adjudicators recommendation was unlawful. In particular among other matters he considered the issue of third party support.[26]The judge had before him paragraph 297 (iv) of the then Immigration Rules as set out above. He analysed its meaning by reference to the wording of the then paragraph 281(vi) as follows:
"The wording of paragraph 281(iv) does not in terms suggest that the ability to maintain must be from the parties own resources. Other rules do. Thus for example para 201(ii)( businessmen), 224( i) (investors) and 232(iv) (actors and artists) all state explicitly that the relevant funds or resources must be the applicants own. If a rich relation or a benefactor, is willing and able to maintain a family in this country so that there is no need to have recourse to public funds I see no reason in principle why the family should be kept apart. The purpose of the rule is quite clearly met and the natural meaning of the language used is consistent with the construction I have espoused. Paragraph 297(iv) does not indicate a different construction………. I am satisfied that Najmun Neesa (11545)(unreported ) IAT was wrong insofar as it decided that there could be no long term maintenance by third parties to meet the requirements of the rules"
[27]Hence Arman Ali became authority that third party support of the type given to the claimant in this case by his cousins satisfied the requirements of the then paragraph 297(iv) of the Immigration Rules. The fact that the parent sponsor might not be able to maintain the child seeking entry clearance without recourse to public funds could be overcome if third party support was on the facts available. Our decision and reasons[28]We consider that the new formulation of paragraph 297(v) is clear in a way the old paragraph 297(iv) was not in relation to maintenance. The old paragraph 297(iv) merely requires that the child "can and will be maintained…without recourse to public funds". We agree, as Arman Ali decided, that phraseology does not relate the need for maintenance without recourse to public funds to the sponsor who the child is to join. It is nowhere made explicit that the provider must be the parent whom the child is to join.[29]The rules then changed after Arman Ali had been decided. Counsel for the ECO informed us that he had been instructed that the Immigration Rules had been reconsidered once the Human Rights Act came in to force. 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. Indeed in this case the claimant told the ECO at interview that his father remits money to him through a bank but that his father was not working. It was only when the appeal was submitted after refusal that the evidence of any maintenance was produced and that was evidence of the third party support from the claimants cousins.[30]We note the current paragraph 297(v) deals solely with maintenance unlike its predecessor 297(iv). It requires that the applicant for entry clearance "can, and will be maintained adequately by the parent ( emphasis added ) the child is seeking to join…., without recourse to public funds". We are satisfied that he use of the definite article limits the class of person 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. Arman Ali cannot be relied on for the proper interpretation of Rule 297(v) of the Immigration Rules.[31]The new formulation follows the approach of paragraphs 201(ii), 224(i), and 232(iv) quoted above where the resources have to be personal to the person seeking entry clearance and may not be provided by a third party. We also note that where considering the change in the wording that is at issue in this case McDonald and Webber ( McDonald's Immigration Law and Practice 5 th Edition Butterworth's 2001) at 11.15 states 'The difference in the wording appears to represent the Home Office view as to who should be responsible for maintaining and accommodating the various relatives. In the case of spouses the wording of the rule appears to envisage that the spouses will provide for themselves; children may be accommodated and supported only by their parents or other sponsoring relative.'[32]We note also that the cousins were not named as sponsors on the application form as they might have been. But had this happened the application would have been treated as one under paragraph 297(i)(f) The claimant would then have had to fulfill the additional requirements set out in that paragraph.[33]This is a reconsideration case. We are limited to considering whether there has been a material error of law in the adjudicator's decision and further limited to the matters dealt with in the decision on the permission application. We regard paragraph 297(v) of the Immigration Rules as clear and unambiguous. This claimant has not satisfied the requirement that he be maintained by the parent he seeks to join without recourse to public funds. Decision[34]The adjudicator made a material error of law.[35]The following decision is accordingly substituted: The appeal against the decision of the Entry Clearance officer dated 19 th June 2002 is dismissed. THE HON. MR JUSTICE HODGE PRESIDENT