[2006] UKAIT 69
- Case title: AK and Others (Long-term third party support)
- Appellant name: AK and Others
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Bangladesh
- Judges: Mr C M G Ockelton, Mr S L Batiste, Mr G Warr
- Keywords Long-term third party support
The decision
Asylum and Immigration Tribunal
AK & Others (Long-term third party support) Bangladesh [2006] UKAIT 00069
THE IMMIGRATION ACTS
Heard at Field House Determination Promulgated
On 8 August 2006 On 5 September 2006
Before
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Warr
Senior Immigration Judge Batiste
Between
1. AK
2. HR
3. TR
Appellants
and
ENTRY CLEARANCE OFFICER, DHAKA
Respondent
Representation:
For the Appellants: Mr B Ali, instructed by Messrs Kuddus, Solicitors
For the Respondent: Mr C Avery, Presenting Officer
Whilst the evidence needed to establish the availability of short term third party support may be satisfied comparatively readily by satisfactory evidence of the genuineness of intent and the present existence of sufficient surplus funds, a long term commitment to third party funding, especially to one who is neither an ascendant nor descendant relative, requires more detailed and broader evidence and enquiry, and more thorough assessment A judge would need to be satisfied, from the perspective of the circumstances at the date of the Respondent’s decision, that in the long term, whatever the third party’s own future family and other commitments might be, he would be willing and able to give funding priority to supporting an appellant, in effect treating him or her or her as equivalent of one of his own dependants.
DETERMINATION AND REASONS
1. The Appellants are citizens of Bangladesh. The First Appellant is the mother of the Second and Third Appellants. They were born on 9 January 1948, 18 March 1986 and 22 March 1989 respectively. They are all referred to herein as Appellants for ease of identification, but during the course of the hearing an issue arose as to whether the Second and Third Appellants are actually parties to the present proceedings. We shall deal with this issue and other issues arising from it in due course.
History of the Appeal
2. All three Appellants applied to the Respondent on 2 March 2004 for leave to enter the UK for settlement as the wife and dependent sons respectively of Mr K, their Sponsor, a person present and settled in the UK. The First Appellant and the Sponsor also have four other children. At the time of the application, three of them were married and living independently in Bangladesh and the fourth, a student, was over the age of 18 but lived in the family home in Bangladesh with the Appellants. At the time of the application, the Second Appellant was a few days short of his 18th birthday, and the Third Appellant was 14.
3. Their applications were refused by the Respondent on 9 August 2004 under paragraphs 281 and 297 of HC395 on the basis he was not satisfied they could meet the requirements of the Rules on accommodation and maintenance. His decision was addressed to all three Appellants and his reasons were as follows:
As evidence of your Sponsor’s ability to maintain you he has submitted evidence of Third party sponsorship from a relative. I have taken note of the third party’s economic and personal circumstances. At present the third party Sponsor has his wife and child to look after and no doubt he has his own commitments and financial obligations which are likely to be supplemented in the future. Under the circumstances, I feel that although he may be able to support you and your dependants in the very short-term he may not be able to adequately provide you with maintenance in the long run. Your husband’s only source of income is from state benefits. I am therefore not satisfied that you and any dependants can be adequately maintained without recourse to public funds.
You have submitted an EHO letter from local authority confirming that the proposed accommodation is fit for human habitation and will not cause overcrowding. I am content with his letter. However, considering the fact that your husband is in receipt of state benefits, you failed to submit any satisfactory evidence of rent receipts or any confirmation that he is not in receipt of housing benefit. In view of these factors I cannot be satisfied that you will be accommodated without recourse to public funds.
4. On 22 September 2004 Messrs Kaddus wrote to the Respondent in the following terms. The underlining is ours.
“Re AK Dob: 19/01/1948 Bangladesh
Notice of Appeal
We write to inform you that we act for the above named client in connection with his [sic] immigration matter.
Please find enclosed:
1. notice of appeal
2. grounds of appeal
3. letter from third party Sponsor
4. letter from employer
5. bank statements from Abbey National
6. proof of housing benefit award letter from council
As you will see from the enclosed documentary evidence that the grounds upon which application for entry clearance has been refused has [sic] now been satisfied and met by the Sponsor and the third party Sponsor.
We suggest in order to save public funds and court time you concede the issue of refusal under paragraph 281 and 297 of the HC 395 as amended and issue our client entry clearance to the UK as the reasons for refusal has [sic] been challenged in the grounds of appeal and the further documents provided herein.
Kindly acknowledge the safe receipt of the same. We look forward to hearing from you as to when our client can collect her entry clearance visa from the British High Commission. Please note that if this matter was to proceed to a hearing in the Immigration Appellate Authority our client Sponsor shall defend and argue that he had tried his best to settle this matter without having to go to court.”
5. It can be seen therefore that the covering letter refers only to an appeal by the First Appellant and there is nothing in this letter to indicate or imply that Messrs Kaddus were acting for anyone other than the first Appellant in lodging the notice of appeal. Furthermore the notice of appeal itself names only the first Appellant as the party to the appeal.
6. The appeal came before Immigration Judge Curzon Lewis on 2 March 2006. In his determination promulgated on 4 April 2006 he listed all three appellants as parties to the appeal and made inter alia the following findings.
1. ….. They [the three Appellants] appeal collectively from the decision of the Respondent dated 9 August 2004 to refuse their several applications for entry clearance to the United Kingdom for settlement.
13. Notice of appeal, in the name of the Appellant but clearly intending to refer also to Humayun and Tanbir, was signed on 30 September 2004 by [Mr D] and by Kuddus Ali, their Solicitor….
62. The Respondent elected to consider the applications:-
(a) of the principal Appellant under paragraph 281 as the wife of her husband/Sponsor who is settled in the UK; and
(b) of Hamayun and Tanbir separately from their Appellant mother by reference to paragraph 297, both boys being under the age of 18 at the date of application.
64. One can approach this appeal by alternative routes:-
(a) by considering the applications separately under paragraphs 281 and 297, as the ECO did: or
(b) by treating Humayun and Tanbir as dependants of their mother/ the principal Appellant and thus considering all the Appellants by reference to paragraph 281.
65. The paragraph 64(b) approach can be applied only if the evidence shows that Humayun and/or Tanbir were indeed independent, and that their dependency was upon their mother. If the answer to both questions is positive, only then can either or both of the boys be considered under paragraph 281.
66. Does this distinction make any material difference? The answer is “yes”, because of the amendment to paragraph 297 by CM4851 of 2 October 2000.
66.1 Paragraph 297 restricts the provider of accommodation and maintenance to “the parent the child is seeking to join”. The wording in paragraph 297 as amended is effective to exclude third party support.
66.2 by contrast the wording in paragraph 281 requires there to be “adequate accommodation” and an ability to maintain “the parties and any dependants”. Paragraph 281 does not exclude third party support.
77. In my judgement all three appeals are properly determinable solely by reference to paragraph 281. It is unnecessary to consider the appeal of Humayun and Tanbir separately by reference to paragraph 297.
7. The Immigration Judge after analysing the evidence and submissions allowed the appeal under paragraph 281 in respect of maintenance. In so doing he noted that:-
91. Whereas the Sponsor hitherto has been able to meet all his expenses out of the public funds which he receives, he has candidly put figures before the court which show that he will certainly not be able to do so if the three Appellants joined his household, at least not without dipping into his Abbey savings account.
97. … In my judgment the income of Mr Malik, the third party, is amply sufficient to cover not only all the costs of his own household, but also to supplement the income of his uncle, the Sponsor, thereby ensuring that the Sponsor will not be entitled to increased or additional public funds by reason of the Appellants’ arrival in United Kingdom.
8. With regard to accommodation he noted that there was conflicting evidence from the local authority concerning the adequacy of the accommodation to be provided by the Sponsor. He concluded however that the third party Sponsor would be willing to provide accommodation for one of the boys. On that basis he allowed the appeal as to accommodation under paragraph 281, but noted as follows:
105. My decision would be different if the applications of the two sons fell to be considered under paragraph 297, because of the decision in [AA (Bangladesh) [2005] UKAIT 00105]. Under paragraph 297 the provision of accommodation and maintenance is restricted to the Sponsor whose household the applicants are seeking to join, and clearly the Sponsor alone is not able to accommodate and maintain the Appellants without additional recourse to public funds
9. Thus, it appears from the determination that the Immigration Judge concluded that there was a collective appeal by all three Appellants (whatever “collective” might mean in this context) because they clearly intended it to be so, but he provided no reasoning or evidence to support this finding. He then confirmed he would have dismissed the appeals of the Second and Third Appellants if they fell to be decided under paragraph 297, but allowed them because he considered that the Second and Third Appellants could be treated as the dependants of the First Appellant, and the appeal under the Immigration Rules could therefore be decided in their favour under paragraph 281. He made no separate finding under paragraph 281 concerning the First Appellant coming to the UK alone.
10. Then, rather curiously, he went on to dismiss all the appeals in respect of Article 8 by applying the test in Huang [2005] EWCA Civ 105, which is rather surprising given that he considered that they were entitled to succeed under the Immigration Rules. We conclude that by this he must have meant that if the claims could not succeed under the Rules then they would fail under Article 8 alone because by the application of the test in Huang there was nothing “truly exceptional” in the specific facts, with which we would agree.
11. The Respondent then sought and obtained an order for reconsideration on the basis that the Immigration Judge had materially misdirected himself in law in four specific respects:
1. In paragraph 64 he wrongly concluded that the appeal could be approached by alternative routes. Paragraph 281 related only to spouses. Children, including dependent children, fell to be considered under paragraph 297, and on the facts of this appeal under sub-paragraph 297(i)(c).
2. Thus he erred in taking into account in respect of maintenance and accommodation for the two children, the availability of third party support.
3. He also erred in his interpretation of paragraph 281(v) with regard to the First Appellant. On its proper construction and in line with the guidance in AA (Bangladesh) [2005] UKAIT 00105, the parties must be able to maintain themselves without third party support. As he concluded in paragraphs 91 and 105 of the determination, they were unable to do that.
4. With regard to the finding that accommodation for one of the boys would be provided by the third party Sponsor, there was no evidence upon which this finding could be based and this conclusion was entirely speculative
12. Mr Ali, in response, filed what he described as at the “Respondents’ Reply”, which should more correctly be described as the Appellants’ Reply. In this he made the following points:
1. The Appellants’ appeal should be allowed for the reasons given by the Immigration Judge in his determination.
2. The Appellants’ appeal should be allowed in respect of human rights because of unlawful discrimination against the Appellants who, in appealing against refusal of entry clearance, were precluded from relying upon post decision evidence by virtue of section 85(5) and were thus disadvantaged by reference to in-country appellants.
13. The further issue, to which we have already alluded briefly, arose during the course of the proceedings before us. Mr Ali indicated that if it was necessary to assist the successful appeals of the First and Second Appellants, then the Third Appellant, who was still under the age of 18, would be content for his appeal to be withdrawn so he could later apply to join the other members of his family under paragraph 297. This purported concession led us to inquire whether either Mr Ali or the Sponsor had the authority to withdraw the appeal on behalf of the Third Appellant and, in this context, to consider the terms of the original notice of appeal. It was then we observed that the notice of appeal and covering letter, which we expected to nominate their representatives, if any, referred only to the First Appellant and we invited and received oral submissions about this rather obvious point touching our jurisdiction.
14. We now turn to our assessment of the various issues and submissions.
The position of the Second and Third Appellants
15. The Immigration Judge was of the view as set out above that the three Appellants appealed collectively, even though the Notice of Appeal was in the name of the First Appellant only. He said that the Notice of Appeal clearly intended to refer to the Second and Third Appellants as well. As we have indicated he gave no reasoning for this conclusion and there appears to be no evidence to support it. We invited Mr Ali to refer us to any such evidence, if it existed, but he was unable to do so. We are bound to assess this matter, even though it was not raised by the Respondent in his grounds of application, because it arises from the original grounds of appeal and goes to the Tribunal’s jurisdiction. In this we follow AH (Scope of s103 reconsideration) Sudan [2006] UKAIT 00038 and also A (Iraq) [2005] EWCA Civ 1438.
16. First we must assess whether the Second and Third Appellants have made appeals in their own right that may stand or fall on their own merits under whichever of the Immigration Rules apply.
17. We can see no basis in the documents themselves for this proposition. Both the Notice of Appeal and the covering letter from Messrs Kaddus refer exclusively to the First Appellant, and particularly in the covering letter do so on a number of separate occasions and in wholly unambiguous terms. The grounds of appeal recite the Respondent’s decision and take issue with it but do not take matters materially further. They are consistent with an appeal under paragraph 281 by the First Appellant alone. In our judgement, the terms of the Kaddus letter indicate that only one appeal, by the First Appellant was made, and that there was no accidental omission of the names of the Second and Third Appellants from the notice of appeal.
18. It is true that there was just one written decision by the Respondent for all three Appellants but that is neutral to the issue of which amongst them wished to appeal from that decision. It is not uncommon for only some of the parties to a decision by the Respondent to appeal against it. There could be a variety of reasons why the two sons in this case might have decided not to appeal. They might at that time have preferred to remain in Bangladesh with their adult siblings. They might have been advised that as the basis of the challenge to the Respondent’s decision (as stated in the covering letter from Messrs Kaddus) was the adequacy of third party support, they could not succeed under paragraph 297, which excluded third party support. They might have concluded that their mother had a better chance to succeed on her own. They might have seen some tactical advantage in pursuing separate appeals. Alternatively, it could be explained by negligence on the part of their advisers. We cannot speculate.
19. What we do find is that there was no evidence to support the Immigration Judge’s conclusion that the sons were intended as parties to this appeal and accordingly that he erred materially in law in proceeding on the basis that the Second and Third Appellants were parties to the appeal before him. There were and are no appeals by the Second and Third Appellants before the Immigration Judge or before us.
20. However, having said that, we have gone on to assess whether, in case we are wrong in our first conclusion and there are extant appeals by the Second and Third Appellants, it was open to the Immigration Judge to assess those appeals under paragraph 281.
The scope of paragraph 281 and its relationship with paragraph 297
21. The two paragraphs state as follows.
SPOUSES OR CIVIL PARTNERS OF PERSONS PRESENT AND SETTLED IN THE UNITED KINGDOM OR BEING ADMITTED ON THE SAME OCCASION FOR SETTLEMENT
Requirements for leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement
281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(i) (a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or
(b) the applicant is married or the civil partner of to a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and
(ii) the parties to the marriage have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and
(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; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.
LEAVE TO ENTER OR REMAIN IN 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
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
(f) 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 18; and
(iii) is not leading an independent life, is unmarried, and has not formed an independent family unit; and
(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; and
(vi) holds a valid United Kingdom entry clearance for entry in this capacity.
22. The Immigration Judge in paragraph 64 of his determination asserted that there were two alternative routes to deciding the appeals of the three Appellants. The first was by considering paragraph 281 for the First Appellant and paragraph 297 for the Second and Third Appellants. There can be no objection to that approach. It was the route used by the Respondent in his decision and is the obvious intention of the Rules as indicated in the headings to the two paragraphs.
23. The second alternative he identified, and followed as he said in paragraph 77 of the determination, was to treat the Second and Third Appellants as dependants of the First Appellant and to consider them all under paragraph 281. He did not explain in any meaningful way how he reached a conclusion that would appear to be contrary to the obvious intent of the Rules. He did not seek to explain why, if his view were correct, the Respondent’s policy as expressed in the Rules should offer two different routes for the same decision with different requirements under each. We consider he made another material error in law in concluding that paragraph 281 was relevant at all for the appeals of the Second and Third Appellants.
24. The heading of paragraph 281 specifically states that it relates to spouses of persons present and settled in the UK or being admitted on the same occasion for settlement. It makes no mention in the heading of applying to dependent children or any other dependants. The only reference to dependants is in sub-paragraphs (iv) and (v) and this is to require that the parties to the marriage will be able to accommodate and maintain themselves and any dependants adequately without recourse to public funds, which means as paragraph 6A of the Immigration Rules makes clear, without additional recourse to public funds. This does not offer a route for the dependants to obtain entry clearance. It means that the spouses must be able to demonstrate that they can accommodate and maintain all their dependants, whether in the UK or outside, whether seeking entry clearance themselves or not, without additional recourse to public funds. The paragraph offers no support for the Immigration Judge’s curious view.
25. There are entirely separate paragraphs relating to applications for entry clearance by each type of dependant, category by category. Paragraph 297 is the appropriate paragraph for children and sub-paragraph (i)(c) is the relevant category for the Second and Third Appellants. It provides for the situation in which one parent is present and settled in the UK and the other is being admitted on the same occasion for settlement. It is specifically structured for unmarried children who are under 18 and are not leading independent lives. The Second and Third Appellants would have to be able to satisfy all the requirements of this paragraph in order to succeed in their appeals, but as we have noted above the Immigration Judge in paragraph 105 of his determination concluded that they could not satisfy its accommodation and maintenance requirements due to the exclusion of third party support from the calculation as confirmed in AA (Bangladesh). It was not open to the Immigration Judge to attempt to circumvent the terms of this paragraph by seeking to decide their appeals under a different paragraph with less stringent conditions that had no relevance to them.
26. Mr Ali at one point argued that paragraph 281 was appropriate for dependants who only wanted 2 years leave but in line with our reasoning described above we conclude there is no support in the text of paragraph 281 for the assessment of the claims of anyone other than a spouse on any basis.
27. Thus it follows that even if the Second and Third Appellant had lodged notices of appeal against the Respondent’s decision, their appeals were bound to fail. They could not meet the requirements of paragraph 297.
The human rights issue
28. Mr Ali raised one final matter that touches the Second and Third Appellants. It is in essence that the distinction made by sections 85(4) and 85(5) of the Nationality, Immigration and Asylum Act 2002 between the evidence that can be considered in in-country and out-of-country appeals is discriminatory under Articles 8 with 14, and is non-compliant with the Human Rights Act 1998.
29. Essentially section 85(4) provides that in in-country appeals the Tribunal can consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision, whilst section 85(5) limits the Tribunal in out-of-country appeals to considering only the circumstances appertaining at the time of the decision to refuse.
30. There is no material substance in this point, which was raised with and properly rejected by the Immigration Judge. The position of those seeking to enter the UK is that they can choose when to make their application for entry clearance or for a certificate of entitlement and, if they are competently advised, they will not do so until the evidence available is adequate to succeed. Thus the question of timing is in their own hands. That is rather different from the position of a person who is in-country and may need to make an application before existing leave expires, and for whom removal from the UK may be the consequence of a lost appeal, and where the one-stop requirement applies.
31. It is therefore entirely fair, appropriate and non-discriminatory to assess out-of-country appeals on the circumstances appertaining at the time the Respondent’s decision was made, and to assess in-country appeals as at the time of the hearing of the appeal. There is no disadvantage to an out-of-country appellant who can choose the time of his application and may be able, depending on the particular facts, to make further applications if the first fails but his circumstances change thereafter. Nor do the provisions of section 85 discriminate between people by reference to the matters identified in Article 14, including sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
32. Mr Ali’s specific point was that the circumstances relating to the Second Appellant changed after the date of the decision with the making of a job offer in the UK dated 22 September 2004, but he was not able to have that taken into account by the Immigration Judge because the job offer post-dated the decision. However the job offer also post-dated the Second Appellant’s 18th birthday and the reality is that he was never in a position to be able to satisfy all the requirements of the Rules because his accommodation depended, according to the Immigration Judge’s findings, upon non-permissible third party support. When he was under 18 there was no job; when there was a job he was too old.
33. Thus in summary we conclude in relation to the Second and Third Appellants, that the Immigration Judge erred materially in law by allowing their appeals under paragraph 281 of HC395, first because there were no extant appeals by them before him at all, and second because, even if there were, paragraph 281 was not relevant and their appeals were bound to fail under the relevant paragraph 297 for the reasons he himself described in paragraph 105 of his determination.
The First Appellant’s position
34. We turn then to the position of the First Appellant, which is to be considered under paragraph 281 and is stronger in some respects for there being no extant appeals by the Second and Third Appellants, who therefore remain in Bangladesh.
35. Thus there would be no problem of overcrowding in the Sponsor’s one bedroom flat if the First Appellant were to come to the UK on her own. There is therefore no issue concerning the adequacy of the accommodation arrangements for her under paragraph 281(iv).
36. The real issue is in relation to maintenance under paragraph 281(v) and whether the Appellant has discharged her burden of proof to the balance of probabilities. The Immigration Judge concluded in paragraphs 91 and 105 of his determination that the Sponsor would not be able to maintain the three Appellants from his own funds without additional recourse to public funds. He made no finding concerning the position if the First Appellant came to the UK alone. We have therefore considered this for ourselves bearing in mind that we are looking at the position as it was at the time of the Respondent’s decision and all the material evidence relating to this as presented on behalf of the First Appellant was recorded in the Immigration Judge’s determination.
37. Additionally we would observe that, from the point of view of the adequacy of maintenance under paragraph 281(v), the Second and Third Appellants still were the First Appellant’s dependants, even though they remained in Bangladesh. The costs may be less than if they came to the UK but that would have to be established by evidence. Moreover evidence would be required as to whether their other sibling who was over 18 at the time of the decision and a student, was also a dependant. Dependency does not necessarily cease at 18 especially if a son is pursuing full-time education. There was however no evidence on any of these points.
38. The evidence before the Immigration Judge was that the Sponsor received £105.45 per week in pension credit and social security benefits. He was in receipt also of full housing and council tax benefit. He had savings at the Abbey Bank of about £1940.
39. Our first observation is that given the Sponsor lives on pension and state benefits alone without additional income and receives what the Government assesses is adequate for a person living on his own, we cannot see how two people can live on that money without either reducing their standard of living below that which the Government deems adequate for people living in the UK, or without creating a need for additional recourse to public funds.
40. Mr Ali suggested to us that the First Appellant could work part-time but accepted there was no evidence before the Immigration Judge to support this submission beyond a general assertion in her application form that she will be attending college and working part-time. He acknowledged that this matter was not pursued in evidence before the Immigration Judge. Indeed so. The First Appellant was 58 years old at the time of the Respondent’s decision and it would have required some compelling evidence that she would be able to find a job, being essentially unskilled.
41. Also the evidence presented to the Immigration Judge, concerning the consequences in terms of benefits, should the First Appellant join the Sponsor, was vague and inadequate. He was not told what income support levels would be for the couple together, or what impact regular payments to the Appellant from her nephew, the third party Sponsor would have on the Sponsor’s benefits. This is a matter to which we shall return later.
42. Therefore for these reasons and bearing in mind that the burden of proof rests with the Appellant on the balance of probabilities we conclude that she has failed to establish under paragraph 281(v) that she and the Sponsor without third party support could maintain themselves and their dependants adequately without additional recourse to public funds, even if she alone joined the Sponsor in the UK.
43. The next question is whether in principle in order to meet the maintenance requirement of paragraph 281(v) reliance can be placed on long term third party funding. The Respondent in the grounds of application prayed in aid the conclusion of the Tribunal in AA (Bangladesh), which held as follows:
“23. 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 the 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.”
44. However AA (Bangladesh) related specifically to paragraph 297 of the Rules. We reach no conclusion concerning this as it not necessary for us to consider this matter for the purpose of this appeal because for the reasons we shall describe we have concluded that the offer of long term third party funding by the Appellant’s nephew is on the evidence inadequate to meet the requirements of paragraph 281.
45. The sponsorship declaration by the third party accompanying of the Appellant's original application is as follows.
1. I wish to support my maternal uncle in his application for his wife and two children to come to the United Kingdom for settlement. My uncle is unable to work and is not medically fit to work. I am prepared to maintain and pay for the accommodation cost of my auntie, and my cousin brothers.
2. I am willing and able to support my auntie and my two cousin brothers during their stay in the UK, without recourse to public funds.
3. I work for the London Borough of Tower Hamlets as a principal officer and earn £28,758 per year and have sufficient income to maintain my auntie and her children during their stay in United Kingdom.
4. I have savings of £3000 and over in my bank account and I have other savings besides this ie sufficient income to maintain and accommodate my auntie and family in the UK during a visit without seeking assistance from public funds.
46. The Immigration Judge recorded the third party’s oral evidence and his own conclusions in the following terms:
30. [The third party] and his wife, live at [London]. They have one child only who was born on 15 February 2004.
31. The third party is employed by the London Borough of Tower Hamlets on a permanent contract as a senior housing officer at £30,423 per annum.
32. His wife is also employed by the London Borough of Tower Hamlets as a housing officer at a salary of £23,000 p a.
33. The third party and his wife have been willing from the outset of the entry clearance applications to maintain his uncle's family upon her arrival in United Kingdom. His mother was the Sponsor’s sister. Given the amount of his and his wife's joint income, he confirmed that he would have no difficulty in supporting the Appellant in the long term. He had savings of £20,000. As evidence thereof the third party produced his HSBC statements for his current and deposit accounts. The balance at 26 October 2005 stood at £22,085 .92.
93. In considering the third party evidence, the Court cannot take into account
the income of [the third party’s wife] because there is no evidence that her availability as a co-Sponsor was ever in contemplation at the date of decision.
96. The third party on the other hand was named as a provider of maintenance and accommodation costs on page 10 of each of visa application and on page 13 of the Appellant's application.
97. The third party attended the hearing and gave oral evidence, speaking to
the pay slips and bank statements referred to above. I found the third party to be very genuine and credible in his offer to co-sponsor the Appellants. His wife is working. They have one child only. In my judgment the income of the third party is amply sufficient to cover not only all the costs of his own household, but also to supplement the income of his uncle, the Sponsor, thereby ensuring that the Sponsor will not be entitled to increased or additional public funds by reason of the Appellant's arrival in United Kingdom.
47. We consider that the Immigration Judge erred materially in law by not addressing himself to the important distinction in the evidential requirement between the provision of short term third party support and the indefinite need, as in this appeal, for long term support which might continue for the life of the First Appellant. Nor did he properly address in this regard the specific concerns about this raised by the Respondent.
48. No doubt, as indeed the Respondent accepted in his decision, the third party would and would be able to provide support in the short term. There is no reason to doubt his sincerity and good intention particularly when he gave the Sponsor £2000 to fund the legal proceedings. But a sponsorship declaration is not legally binding and whilst expressions of support and goodwill coupled with adequate current means, if held genuine, may be enough in the short term to satisfy paragraph 281 whilst a new arrival gets established and perhaps finds employment, much more is required evidentially to demonstrate that the necessary third party support will be available in the long term to obviate the need for additional state funding.
49. An Immigration Judge would need to be satisfied, from the perspective of the circumstances at the date of the Respondent’s decision, that in the long term, whatever the third party’s own future family and other commitments might be, he would be willing and able to give funding priority to supporting an appellant, in effect treating him or her as equivalent of one of his own dependants rather than being one of his or her sponsor’s.
50. In this appeal, the sponsorship declaration by the third party, whilst it acknowledges the First Appellant’s wish for “settlement” talks of the First Appellant’s “stay” and “visit” in the UK, which is perhaps an indication of some short term thinking. Moreover, there was no evidence or inquiry before the Immigration Judge as to how much might be needed in the way of third party support to secure adequate maintenance. Nor in this context was there any evidence of the potential impact that regular payments by the third party to the First Appellant might have on the Sponsor’s own present and future entitlement to benefits. Nor was there any evidence or inquiry as to the extent of the third party’s own potential future commitments. It was established that he presently had a wife and child but there was no evidence recorded by the Immigration Judge about whether he wanted additional children, and how this might impact on his surplus income or his wife’s ability to continue work, which is very material because she contributes nearly half of their family’s income. There was no evidence either as to whether at some point the third party might have financial commitments to his own or his wife’s parents, which could take priority over his ability and willingness to support an aunt.
51. Thus, whilst the evidence needed to establish the availability of short term third party support may be satisfied comparatively readily by satisfactory evidence of the genuineness of intent and the present existence of sufficient surplus funds, a long term commitment to third party funding, especially to one who is neither an ascendant nor descendant relative, requires more detailed and broader evidence and enquiry, and more thorough assessment Vague and unquantified expressions of goodwill are inadequate to enable an applicant for settlement to show the availability of adequate maintenance (or indeed accommodation) even if the Rules allow third party support in principle. We conclude that the First Appellant failed to provide the necessary evidence to the Immigration Judge to satisfy her burden under paragraph 281(v) and the Immigration Judge erred materially in law in allowing her appeal by misinterpreting the scope and true extent of the burden which the First Appellant is required to discharge.
DECISION
52. The Immigration Judge made material errors of law in allowing the appeals of the three Appellants. The following decision is accordingly substituted therefor:
1. There were no extant appeals by the Second and Third Appellants.
2. The First Appellant’s appeal is dismissed in respect of the Immigration Rules and Article 8.
Signed Dated 29 August 2006
Senior Immigration Judge Batiste
AK & Others (Long-term third party support) Bangladesh [2006] UKAIT 00069
THE IMMIGRATION ACTS
Heard at Field House Determination Promulgated
On 8 August 2006 On 5 September 2006
Before
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Warr
Senior Immigration Judge Batiste
Between
1. AK
2. HR
3. TR
Appellants
and
ENTRY CLEARANCE OFFICER, DHAKA
Respondent
Representation:
For the Appellants: Mr B Ali, instructed by Messrs Kuddus, Solicitors
For the Respondent: Mr C Avery, Presenting Officer
Whilst the evidence needed to establish the availability of short term third party support may be satisfied comparatively readily by satisfactory evidence of the genuineness of intent and the present existence of sufficient surplus funds, a long term commitment to third party funding, especially to one who is neither an ascendant nor descendant relative, requires more detailed and broader evidence and enquiry, and more thorough assessment A judge would need to be satisfied, from the perspective of the circumstances at the date of the Respondent’s decision, that in the long term, whatever the third party’s own future family and other commitments might be, he would be willing and able to give funding priority to supporting an appellant, in effect treating him or her or her as equivalent of one of his own dependants.
DETERMINATION AND REASONS
1. The Appellants are citizens of Bangladesh. The First Appellant is the mother of the Second and Third Appellants. They were born on 9 January 1948, 18 March 1986 and 22 March 1989 respectively. They are all referred to herein as Appellants for ease of identification, but during the course of the hearing an issue arose as to whether the Second and Third Appellants are actually parties to the present proceedings. We shall deal with this issue and other issues arising from it in due course.
History of the Appeal
2. All three Appellants applied to the Respondent on 2 March 2004 for leave to enter the UK for settlement as the wife and dependent sons respectively of Mr K, their Sponsor, a person present and settled in the UK. The First Appellant and the Sponsor also have four other children. At the time of the application, three of them were married and living independently in Bangladesh and the fourth, a student, was over the age of 18 but lived in the family home in Bangladesh with the Appellants. At the time of the application, the Second Appellant was a few days short of his 18th birthday, and the Third Appellant was 14.
3. Their applications were refused by the Respondent on 9 August 2004 under paragraphs 281 and 297 of HC395 on the basis he was not satisfied they could meet the requirements of the Rules on accommodation and maintenance. His decision was addressed to all three Appellants and his reasons were as follows:
As evidence of your Sponsor’s ability to maintain you he has submitted evidence of Third party sponsorship from a relative. I have taken note of the third party’s economic and personal circumstances. At present the third party Sponsor has his wife and child to look after and no doubt he has his own commitments and financial obligations which are likely to be supplemented in the future. Under the circumstances, I feel that although he may be able to support you and your dependants in the very short-term he may not be able to adequately provide you with maintenance in the long run. Your husband’s only source of income is from state benefits. I am therefore not satisfied that you and any dependants can be adequately maintained without recourse to public funds.
You have submitted an EHO letter from local authority confirming that the proposed accommodation is fit for human habitation and will not cause overcrowding. I am content with his letter. However, considering the fact that your husband is in receipt of state benefits, you failed to submit any satisfactory evidence of rent receipts or any confirmation that he is not in receipt of housing benefit. In view of these factors I cannot be satisfied that you will be accommodated without recourse to public funds.
4. On 22 September 2004 Messrs Kaddus wrote to the Respondent in the following terms. The underlining is ours.
“Re AK Dob: 19/01/1948 Bangladesh
Notice of Appeal
We write to inform you that we act for the above named client in connection with his [sic] immigration matter.
Please find enclosed:
1. notice of appeal
2. grounds of appeal
3. letter from third party Sponsor
4. letter from employer
5. bank statements from Abbey National
6. proof of housing benefit award letter from council
As you will see from the enclosed documentary evidence that the grounds upon which application for entry clearance has been refused has [sic] now been satisfied and met by the Sponsor and the third party Sponsor.
We suggest in order to save public funds and court time you concede the issue of refusal under paragraph 281 and 297 of the HC 395 as amended and issue our client entry clearance to the UK as the reasons for refusal has [sic] been challenged in the grounds of appeal and the further documents provided herein.
Kindly acknowledge the safe receipt of the same. We look forward to hearing from you as to when our client can collect her entry clearance visa from the British High Commission. Please note that if this matter was to proceed to a hearing in the Immigration Appellate Authority our client Sponsor shall defend and argue that he had tried his best to settle this matter without having to go to court.”
5. It can be seen therefore that the covering letter refers only to an appeal by the First Appellant and there is nothing in this letter to indicate or imply that Messrs Kaddus were acting for anyone other than the first Appellant in lodging the notice of appeal. Furthermore the notice of appeal itself names only the first Appellant as the party to the appeal.
6. The appeal came before Immigration Judge Curzon Lewis on 2 March 2006. In his determination promulgated on 4 April 2006 he listed all three appellants as parties to the appeal and made inter alia the following findings.
1. ….. They [the three Appellants] appeal collectively from the decision of the Respondent dated 9 August 2004 to refuse their several applications for entry clearance to the United Kingdom for settlement.
13. Notice of appeal, in the name of the Appellant but clearly intending to refer also to Humayun and Tanbir, was signed on 30 September 2004 by [Mr D] and by Kuddus Ali, their Solicitor….
62. The Respondent elected to consider the applications:-
(a) of the principal Appellant under paragraph 281 as the wife of her husband/Sponsor who is settled in the UK; and
(b) of Hamayun and Tanbir separately from their Appellant mother by reference to paragraph 297, both boys being under the age of 18 at the date of application.
64. One can approach this appeal by alternative routes:-
(a) by considering the applications separately under paragraphs 281 and 297, as the ECO did: or
(b) by treating Humayun and Tanbir as dependants of their mother/ the principal Appellant and thus considering all the Appellants by reference to paragraph 281.
65. The paragraph 64(b) approach can be applied only if the evidence shows that Humayun and/or Tanbir were indeed independent, and that their dependency was upon their mother. If the answer to both questions is positive, only then can either or both of the boys be considered under paragraph 281.
66. Does this distinction make any material difference? The answer is “yes”, because of the amendment to paragraph 297 by CM4851 of 2 October 2000.
66.1 Paragraph 297 restricts the provider of accommodation and maintenance to “the parent the child is seeking to join”. The wording in paragraph 297 as amended is effective to exclude third party support.
66.2 by contrast the wording in paragraph 281 requires there to be “adequate accommodation” and an ability to maintain “the parties and any dependants”. Paragraph 281 does not exclude third party support.
77. In my judgement all three appeals are properly determinable solely by reference to paragraph 281. It is unnecessary to consider the appeal of Humayun and Tanbir separately by reference to paragraph 297.
7. The Immigration Judge after analysing the evidence and submissions allowed the appeal under paragraph 281 in respect of maintenance. In so doing he noted that:-
91. Whereas the Sponsor hitherto has been able to meet all his expenses out of the public funds which he receives, he has candidly put figures before the court which show that he will certainly not be able to do so if the three Appellants joined his household, at least not without dipping into his Abbey savings account.
97. … In my judgment the income of Mr Malik, the third party, is amply sufficient to cover not only all the costs of his own household, but also to supplement the income of his uncle, the Sponsor, thereby ensuring that the Sponsor will not be entitled to increased or additional public funds by reason of the Appellants’ arrival in United Kingdom.
8. With regard to accommodation he noted that there was conflicting evidence from the local authority concerning the adequacy of the accommodation to be provided by the Sponsor. He concluded however that the third party Sponsor would be willing to provide accommodation for one of the boys. On that basis he allowed the appeal as to accommodation under paragraph 281, but noted as follows:
105. My decision would be different if the applications of the two sons fell to be considered under paragraph 297, because of the decision in [AA (Bangladesh) [2005] UKAIT 00105]. Under paragraph 297 the provision of accommodation and maintenance is restricted to the Sponsor whose household the applicants are seeking to join, and clearly the Sponsor alone is not able to accommodate and maintain the Appellants without additional recourse to public funds
9. Thus, it appears from the determination that the Immigration Judge concluded that there was a collective appeal by all three Appellants (whatever “collective” might mean in this context) because they clearly intended it to be so, but he provided no reasoning or evidence to support this finding. He then confirmed he would have dismissed the appeals of the Second and Third Appellants if they fell to be decided under paragraph 297, but allowed them because he considered that the Second and Third Appellants could be treated as the dependants of the First Appellant, and the appeal under the Immigration Rules could therefore be decided in their favour under paragraph 281. He made no separate finding under paragraph 281 concerning the First Appellant coming to the UK alone.
10. Then, rather curiously, he went on to dismiss all the appeals in respect of Article 8 by applying the test in Huang [2005] EWCA Civ 105, which is rather surprising given that he considered that they were entitled to succeed under the Immigration Rules. We conclude that by this he must have meant that if the claims could not succeed under the Rules then they would fail under Article 8 alone because by the application of the test in Huang there was nothing “truly exceptional” in the specific facts, with which we would agree.
11. The Respondent then sought and obtained an order for reconsideration on the basis that the Immigration Judge had materially misdirected himself in law in four specific respects:
1. In paragraph 64 he wrongly concluded that the appeal could be approached by alternative routes. Paragraph 281 related only to spouses. Children, including dependent children, fell to be considered under paragraph 297, and on the facts of this appeal under sub-paragraph 297(i)(c).
2. Thus he erred in taking into account in respect of maintenance and accommodation for the two children, the availability of third party support.
3. He also erred in his interpretation of paragraph 281(v) with regard to the First Appellant. On its proper construction and in line with the guidance in AA (Bangladesh) [2005] UKAIT 00105, the parties must be able to maintain themselves without third party support. As he concluded in paragraphs 91 and 105 of the determination, they were unable to do that.
4. With regard to the finding that accommodation for one of the boys would be provided by the third party Sponsor, there was no evidence upon which this finding could be based and this conclusion was entirely speculative
12. Mr Ali, in response, filed what he described as at the “Respondents’ Reply”, which should more correctly be described as the Appellants’ Reply. In this he made the following points:
1. The Appellants’ appeal should be allowed for the reasons given by the Immigration Judge in his determination.
2. The Appellants’ appeal should be allowed in respect of human rights because of unlawful discrimination against the Appellants who, in appealing against refusal of entry clearance, were precluded from relying upon post decision evidence by virtue of section 85(5) and were thus disadvantaged by reference to in-country appellants.
13. The further issue, to which we have already alluded briefly, arose during the course of the proceedings before us. Mr Ali indicated that if it was necessary to assist the successful appeals of the First and Second Appellants, then the Third Appellant, who was still under the age of 18, would be content for his appeal to be withdrawn so he could later apply to join the other members of his family under paragraph 297. This purported concession led us to inquire whether either Mr Ali or the Sponsor had the authority to withdraw the appeal on behalf of the Third Appellant and, in this context, to consider the terms of the original notice of appeal. It was then we observed that the notice of appeal and covering letter, which we expected to nominate their representatives, if any, referred only to the First Appellant and we invited and received oral submissions about this rather obvious point touching our jurisdiction.
14. We now turn to our assessment of the various issues and submissions.
The position of the Second and Third Appellants
15. The Immigration Judge was of the view as set out above that the three Appellants appealed collectively, even though the Notice of Appeal was in the name of the First Appellant only. He said that the Notice of Appeal clearly intended to refer to the Second and Third Appellants as well. As we have indicated he gave no reasoning for this conclusion and there appears to be no evidence to support it. We invited Mr Ali to refer us to any such evidence, if it existed, but he was unable to do so. We are bound to assess this matter, even though it was not raised by the Respondent in his grounds of application, because it arises from the original grounds of appeal and goes to the Tribunal’s jurisdiction. In this we follow AH (Scope of s103 reconsideration) Sudan [2006] UKAIT 00038 and also A (Iraq) [2005] EWCA Civ 1438.
16. First we must assess whether the Second and Third Appellants have made appeals in their own right that may stand or fall on their own merits under whichever of the Immigration Rules apply.
17. We can see no basis in the documents themselves for this proposition. Both the Notice of Appeal and the covering letter from Messrs Kaddus refer exclusively to the First Appellant, and particularly in the covering letter do so on a number of separate occasions and in wholly unambiguous terms. The grounds of appeal recite the Respondent’s decision and take issue with it but do not take matters materially further. They are consistent with an appeal under paragraph 281 by the First Appellant alone. In our judgement, the terms of the Kaddus letter indicate that only one appeal, by the First Appellant was made, and that there was no accidental omission of the names of the Second and Third Appellants from the notice of appeal.
18. It is true that there was just one written decision by the Respondent for all three Appellants but that is neutral to the issue of which amongst them wished to appeal from that decision. It is not uncommon for only some of the parties to a decision by the Respondent to appeal against it. There could be a variety of reasons why the two sons in this case might have decided not to appeal. They might at that time have preferred to remain in Bangladesh with their adult siblings. They might have been advised that as the basis of the challenge to the Respondent’s decision (as stated in the covering letter from Messrs Kaddus) was the adequacy of third party support, they could not succeed under paragraph 297, which excluded third party support. They might have concluded that their mother had a better chance to succeed on her own. They might have seen some tactical advantage in pursuing separate appeals. Alternatively, it could be explained by negligence on the part of their advisers. We cannot speculate.
19. What we do find is that there was no evidence to support the Immigration Judge’s conclusion that the sons were intended as parties to this appeal and accordingly that he erred materially in law in proceeding on the basis that the Second and Third Appellants were parties to the appeal before him. There were and are no appeals by the Second and Third Appellants before the Immigration Judge or before us.
20. However, having said that, we have gone on to assess whether, in case we are wrong in our first conclusion and there are extant appeals by the Second and Third Appellants, it was open to the Immigration Judge to assess those appeals under paragraph 281.
The scope of paragraph 281 and its relationship with paragraph 297
21. The two paragraphs state as follows.
SPOUSES OR CIVIL PARTNERS OF PERSONS PRESENT AND SETTLED IN THE UNITED KINGDOM OR BEING ADMITTED ON THE SAME OCCASION FOR SETTLEMENT
Requirements for leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement
281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(i) (a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or
(b) the applicant is married or the civil partner of to a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and
(ii) the parties to the marriage have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and
(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; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.
LEAVE TO ENTER OR REMAIN IN 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
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
(f) 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 18; and
(iii) is not leading an independent life, is unmarried, and has not formed an independent family unit; and
(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; and
(vi) holds a valid United Kingdom entry clearance for entry in this capacity.
22. The Immigration Judge in paragraph 64 of his determination asserted that there were two alternative routes to deciding the appeals of the three Appellants. The first was by considering paragraph 281 for the First Appellant and paragraph 297 for the Second and Third Appellants. There can be no objection to that approach. It was the route used by the Respondent in his decision and is the obvious intention of the Rules as indicated in the headings to the two paragraphs.
23. The second alternative he identified, and followed as he said in paragraph 77 of the determination, was to treat the Second and Third Appellants as dependants of the First Appellant and to consider them all under paragraph 281. He did not explain in any meaningful way how he reached a conclusion that would appear to be contrary to the obvious intent of the Rules. He did not seek to explain why, if his view were correct, the Respondent’s policy as expressed in the Rules should offer two different routes for the same decision with different requirements under each. We consider he made another material error in law in concluding that paragraph 281 was relevant at all for the appeals of the Second and Third Appellants.
24. The heading of paragraph 281 specifically states that it relates to spouses of persons present and settled in the UK or being admitted on the same occasion for settlement. It makes no mention in the heading of applying to dependent children or any other dependants. The only reference to dependants is in sub-paragraphs (iv) and (v) and this is to require that the parties to the marriage will be able to accommodate and maintain themselves and any dependants adequately without recourse to public funds, which means as paragraph 6A of the Immigration Rules makes clear, without additional recourse to public funds. This does not offer a route for the dependants to obtain entry clearance. It means that the spouses must be able to demonstrate that they can accommodate and maintain all their dependants, whether in the UK or outside, whether seeking entry clearance themselves or not, without additional recourse to public funds. The paragraph offers no support for the Immigration Judge’s curious view.
25. There are entirely separate paragraphs relating to applications for entry clearance by each type of dependant, category by category. Paragraph 297 is the appropriate paragraph for children and sub-paragraph (i)(c) is the relevant category for the Second and Third Appellants. It provides for the situation in which one parent is present and settled in the UK and the other is being admitted on the same occasion for settlement. It is specifically structured for unmarried children who are under 18 and are not leading independent lives. The Second and Third Appellants would have to be able to satisfy all the requirements of this paragraph in order to succeed in their appeals, but as we have noted above the Immigration Judge in paragraph 105 of his determination concluded that they could not satisfy its accommodation and maintenance requirements due to the exclusion of third party support from the calculation as confirmed in AA (Bangladesh). It was not open to the Immigration Judge to attempt to circumvent the terms of this paragraph by seeking to decide their appeals under a different paragraph with less stringent conditions that had no relevance to them.
26. Mr Ali at one point argued that paragraph 281 was appropriate for dependants who only wanted 2 years leave but in line with our reasoning described above we conclude there is no support in the text of paragraph 281 for the assessment of the claims of anyone other than a spouse on any basis.
27. Thus it follows that even if the Second and Third Appellant had lodged notices of appeal against the Respondent’s decision, their appeals were bound to fail. They could not meet the requirements of paragraph 297.
The human rights issue
28. Mr Ali raised one final matter that touches the Second and Third Appellants. It is in essence that the distinction made by sections 85(4) and 85(5) of the Nationality, Immigration and Asylum Act 2002 between the evidence that can be considered in in-country and out-of-country appeals is discriminatory under Articles 8 with 14, and is non-compliant with the Human Rights Act 1998.
29. Essentially section 85(4) provides that in in-country appeals the Tribunal can consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision, whilst section 85(5) limits the Tribunal in out-of-country appeals to considering only the circumstances appertaining at the time of the decision to refuse.
30. There is no material substance in this point, which was raised with and properly rejected by the Immigration Judge. The position of those seeking to enter the UK is that they can choose when to make their application for entry clearance or for a certificate of entitlement and, if they are competently advised, they will not do so until the evidence available is adequate to succeed. Thus the question of timing is in their own hands. That is rather different from the position of a person who is in-country and may need to make an application before existing leave expires, and for whom removal from the UK may be the consequence of a lost appeal, and where the one-stop requirement applies.
31. It is therefore entirely fair, appropriate and non-discriminatory to assess out-of-country appeals on the circumstances appertaining at the time the Respondent’s decision was made, and to assess in-country appeals as at the time of the hearing of the appeal. There is no disadvantage to an out-of-country appellant who can choose the time of his application and may be able, depending on the particular facts, to make further applications if the first fails but his circumstances change thereafter. Nor do the provisions of section 85 discriminate between people by reference to the matters identified in Article 14, including sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
32. Mr Ali’s specific point was that the circumstances relating to the Second Appellant changed after the date of the decision with the making of a job offer in the UK dated 22 September 2004, but he was not able to have that taken into account by the Immigration Judge because the job offer post-dated the decision. However the job offer also post-dated the Second Appellant’s 18th birthday and the reality is that he was never in a position to be able to satisfy all the requirements of the Rules because his accommodation depended, according to the Immigration Judge’s findings, upon non-permissible third party support. When he was under 18 there was no job; when there was a job he was too old.
33. Thus in summary we conclude in relation to the Second and Third Appellants, that the Immigration Judge erred materially in law by allowing their appeals under paragraph 281 of HC395, first because there were no extant appeals by them before him at all, and second because, even if there were, paragraph 281 was not relevant and their appeals were bound to fail under the relevant paragraph 297 for the reasons he himself described in paragraph 105 of his determination.
The First Appellant’s position
34. We turn then to the position of the First Appellant, which is to be considered under paragraph 281 and is stronger in some respects for there being no extant appeals by the Second and Third Appellants, who therefore remain in Bangladesh.
35. Thus there would be no problem of overcrowding in the Sponsor’s one bedroom flat if the First Appellant were to come to the UK on her own. There is therefore no issue concerning the adequacy of the accommodation arrangements for her under paragraph 281(iv).
36. The real issue is in relation to maintenance under paragraph 281(v) and whether the Appellant has discharged her burden of proof to the balance of probabilities. The Immigration Judge concluded in paragraphs 91 and 105 of his determination that the Sponsor would not be able to maintain the three Appellants from his own funds without additional recourse to public funds. He made no finding concerning the position if the First Appellant came to the UK alone. We have therefore considered this for ourselves bearing in mind that we are looking at the position as it was at the time of the Respondent’s decision and all the material evidence relating to this as presented on behalf of the First Appellant was recorded in the Immigration Judge’s determination.
37. Additionally we would observe that, from the point of view of the adequacy of maintenance under paragraph 281(v), the Second and Third Appellants still were the First Appellant’s dependants, even though they remained in Bangladesh. The costs may be less than if they came to the UK but that would have to be established by evidence. Moreover evidence would be required as to whether their other sibling who was over 18 at the time of the decision and a student, was also a dependant. Dependency does not necessarily cease at 18 especially if a son is pursuing full-time education. There was however no evidence on any of these points.
38. The evidence before the Immigration Judge was that the Sponsor received £105.45 per week in pension credit and social security benefits. He was in receipt also of full housing and council tax benefit. He had savings at the Abbey Bank of about £1940.
39. Our first observation is that given the Sponsor lives on pension and state benefits alone without additional income and receives what the Government assesses is adequate for a person living on his own, we cannot see how two people can live on that money without either reducing their standard of living below that which the Government deems adequate for people living in the UK, or without creating a need for additional recourse to public funds.
40. Mr Ali suggested to us that the First Appellant could work part-time but accepted there was no evidence before the Immigration Judge to support this submission beyond a general assertion in her application form that she will be attending college and working part-time. He acknowledged that this matter was not pursued in evidence before the Immigration Judge. Indeed so. The First Appellant was 58 years old at the time of the Respondent’s decision and it would have required some compelling evidence that she would be able to find a job, being essentially unskilled.
41. Also the evidence presented to the Immigration Judge, concerning the consequences in terms of benefits, should the First Appellant join the Sponsor, was vague and inadequate. He was not told what income support levels would be for the couple together, or what impact regular payments to the Appellant from her nephew, the third party Sponsor would have on the Sponsor’s benefits. This is a matter to which we shall return later.
42. Therefore for these reasons and bearing in mind that the burden of proof rests with the Appellant on the balance of probabilities we conclude that she has failed to establish under paragraph 281(v) that she and the Sponsor without third party support could maintain themselves and their dependants adequately without additional recourse to public funds, even if she alone joined the Sponsor in the UK.
43. The next question is whether in principle in order to meet the maintenance requirement of paragraph 281(v) reliance can be placed on long term third party funding. The Respondent in the grounds of application prayed in aid the conclusion of the Tribunal in AA (Bangladesh), which held as follows:
“23. 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 the 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.”
44. However AA (Bangladesh) related specifically to paragraph 297 of the Rules. We reach no conclusion concerning this as it not necessary for us to consider this matter for the purpose of this appeal because for the reasons we shall describe we have concluded that the offer of long term third party funding by the Appellant’s nephew is on the evidence inadequate to meet the requirements of paragraph 281.
45. The sponsorship declaration by the third party accompanying of the Appellant's original application is as follows.
1. I wish to support my maternal uncle in his application for his wife and two children to come to the United Kingdom for settlement. My uncle is unable to work and is not medically fit to work. I am prepared to maintain and pay for the accommodation cost of my auntie, and my cousin brothers.
2. I am willing and able to support my auntie and my two cousin brothers during their stay in the UK, without recourse to public funds.
3. I work for the London Borough of Tower Hamlets as a principal officer and earn £28,758 per year and have sufficient income to maintain my auntie and her children during their stay in United Kingdom.
4. I have savings of £3000 and over in my bank account and I have other savings besides this ie sufficient income to maintain and accommodate my auntie and family in the UK during a visit without seeking assistance from public funds.
46. The Immigration Judge recorded the third party’s oral evidence and his own conclusions in the following terms:
30. [The third party] and his wife, live at [London]. They have one child only who was born on 15 February 2004.
31. The third party is employed by the London Borough of Tower Hamlets on a permanent contract as a senior housing officer at £30,423 per annum.
32. His wife is also employed by the London Borough of Tower Hamlets as a housing officer at a salary of £23,000 p a.
33. The third party and his wife have been willing from the outset of the entry clearance applications to maintain his uncle's family upon her arrival in United Kingdom. His mother was the Sponsor’s sister. Given the amount of his and his wife's joint income, he confirmed that he would have no difficulty in supporting the Appellant in the long term. He had savings of £20,000. As evidence thereof the third party produced his HSBC statements for his current and deposit accounts. The balance at 26 October 2005 stood at £22,085 .92.
93. In considering the third party evidence, the Court cannot take into account
the income of [the third party’s wife] because there is no evidence that her availability as a co-Sponsor was ever in contemplation at the date of decision.
96. The third party on the other hand was named as a provider of maintenance and accommodation costs on page 10 of each of visa application and on page 13 of the Appellant's application.
97. The third party attended the hearing and gave oral evidence, speaking to
the pay slips and bank statements referred to above. I found the third party to be very genuine and credible in his offer to co-sponsor the Appellants. His wife is working. They have one child only. In my judgment the income of the third party is amply sufficient to cover not only all the costs of his own household, but also to supplement the income of his uncle, the Sponsor, thereby ensuring that the Sponsor will not be entitled to increased or additional public funds by reason of the Appellant's arrival in United Kingdom.
47. We consider that the Immigration Judge erred materially in law by not addressing himself to the important distinction in the evidential requirement between the provision of short term third party support and the indefinite need, as in this appeal, for long term support which might continue for the life of the First Appellant. Nor did he properly address in this regard the specific concerns about this raised by the Respondent.
48. No doubt, as indeed the Respondent accepted in his decision, the third party would and would be able to provide support in the short term. There is no reason to doubt his sincerity and good intention particularly when he gave the Sponsor £2000 to fund the legal proceedings. But a sponsorship declaration is not legally binding and whilst expressions of support and goodwill coupled with adequate current means, if held genuine, may be enough in the short term to satisfy paragraph 281 whilst a new arrival gets established and perhaps finds employment, much more is required evidentially to demonstrate that the necessary third party support will be available in the long term to obviate the need for additional state funding.
49. An Immigration Judge would need to be satisfied, from the perspective of the circumstances at the date of the Respondent’s decision, that in the long term, whatever the third party’s own future family and other commitments might be, he would be willing and able to give funding priority to supporting an appellant, in effect treating him or her as equivalent of one of his own dependants rather than being one of his or her sponsor’s.
50. In this appeal, the sponsorship declaration by the third party, whilst it acknowledges the First Appellant’s wish for “settlement” talks of the First Appellant’s “stay” and “visit” in the UK, which is perhaps an indication of some short term thinking. Moreover, there was no evidence or inquiry before the Immigration Judge as to how much might be needed in the way of third party support to secure adequate maintenance. Nor in this context was there any evidence of the potential impact that regular payments by the third party to the First Appellant might have on the Sponsor’s own present and future entitlement to benefits. Nor was there any evidence or inquiry as to the extent of the third party’s own potential future commitments. It was established that he presently had a wife and child but there was no evidence recorded by the Immigration Judge about whether he wanted additional children, and how this might impact on his surplus income or his wife’s ability to continue work, which is very material because she contributes nearly half of their family’s income. There was no evidence either as to whether at some point the third party might have financial commitments to his own or his wife’s parents, which could take priority over his ability and willingness to support an aunt.
51. Thus, whilst the evidence needed to establish the availability of short term third party support may be satisfied comparatively readily by satisfactory evidence of the genuineness of intent and the present existence of sufficient surplus funds, a long term commitment to third party funding, especially to one who is neither an ascendant nor descendant relative, requires more detailed and broader evidence and enquiry, and more thorough assessment Vague and unquantified expressions of goodwill are inadequate to enable an applicant for settlement to show the availability of adequate maintenance (or indeed accommodation) even if the Rules allow third party support in principle. We conclude that the First Appellant failed to provide the necessary evidence to the Immigration Judge to satisfy her burden under paragraph 281(v) and the Immigration Judge erred materially in law in allowing her appeal by misinterpreting the scope and true extent of the burden which the First Appellant is required to discharge.
DECISION
52. The Immigration Judge made material errors of law in allowing the appeals of the three Appellants. The following decision is accordingly substituted therefor:
1. There were no extant appeals by the Second and Third Appellants.
2. The First Appellant’s appeal is dismissed in respect of the Immigration Rules and Article 8.
Signed Dated 29 August 2006
Senior Immigration Judge Batiste