Children seeking entry: third party support not allowed

In MW (Liberia) v Secretary of State  (20 December 2007) the Court of Appeal issued its judgment on the question of whether children seeking entry to the UK to join their parents can succeed in their applications for entry clearance if they are to be supported and accommodated by their parents with the financial assistance of others (“third parties”).  

Applications of this kind are decided under rule 297 of the immigration rules.  The rule requires that to succeed in his or her application the child must show that he or she:

(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;

(The case is not concerned with the other requirements of the rule, which are that unless both of the child’s parents have settled immigration status in the UK the child’s parent settled in the UK is either the child’s only surviving parent or has had sole responsibility for the child’s upbringing or that there are compelling family or other circumstances weighing in favour of the child being allowed to come and live in the UK).

MW is the daughter of a Liberian woman who fled the war in Liberia in 1999 and was then granted exceptional leave to remain in the UK.   She and her brother went to the Ivory Coast where they were looked after by a carer who was supported by money sent from the UK by their mother.  But it was not money earned by their mother, who was receiving social security benefits.  Instead the money was provided by friends of their mother who she knew through her church.  It was these friends who indicated both in evidence contained in MW’s visa application and in person at her appeal against its refusal that they would provide the necessary financial support to MW’s mother to enable her to maintain MW.  

There is a history of controversy regarding this issue.  Before October 2000 rule 297 had just one subparagraph about maintenance and accommodation.   This stated:

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

There were varying decisions of what was then the Immigration Appeal Tribunal regarding whether it was possible to meet this requirement from money which was provided by third parties or whether it had to be the applicant’s parents themselves who would maintain and accommodate their child.  In R v Secretary of State ex parte Arman Ali [2000] INLR 89 Collins J held that to give effect to the right to respect for family life contained in Article 8 of the European Convention on Human Rights (the “ECHR”) it was appropriate for the rules to be interpreted as allowing reliance on third party support.  The new formulation of the rule was brought in a year after that decision.  

In a series of cases decided since last summer (in each of which the Tribunal was chaired by its current President) beginning with AA (3rd Party Maintenance R 297 (v)) Bangladesh (2005) UKAIT 00015 the Asylum and Immigration Tribunal has found that the rules bar applicants from relying on “third party support”.  In AA they pointed out that the words of rule 297 (iv) had been replaced by the new paragraphs (iv) and (v) since the decision in Arman Ali, and that the new paragraphs should not be read as permitting third party support.

 In AM (3rd party support not permitted R281 (v)) Ethiopia [2007] UKAIT 00058 the Tribunal found that spouses similarly could not rely on third party support.  As the author of the article on this site pointed out this was a controversial step since rule 281 – under which spouses apply to join their partners in the UK – had not been altered as rule 297 had been.  

In VS (paragraph 317 (iii) – no third party support) Sri Lanka UKAIT 00069 the same reasoning was applied by the Tribunal to yet another rule.  In that case the applicant was the elderly father of the Sponsor, who was disabled and therefore unable to work.  However he sent his father money which he received from a benefactor who had undertaken to provide this money to the Sponsor for the purpose of looking after his father.  The Tribunal dismissed VS’s appeal despite the Secretary of State’s representative’s having agreed with the Appellant’s representative that the Immigration Judge who had dismissed VS’s appeal had erred in law in doing so, and that the Immigration Judge had wrongly decided that he was not dependent upon his disabled son.   Instead the Tribunal agreed with the Immigration Judge in finding that VS could not claim dependency upon his son since his son was “a mere conduit” of the benefactor’s money.  

(It is understood that VS is continuing to seek permission to appeal to the Court of Appeal against the Tribunal’s decision in his case).  

In MW it had been accepted by the Immigration Judge hearing her appeal that support had been provided by the third parties for some time and that they would continue to support her.  She had dismissed the appeal because she had regarded herself as being bound by the decision in AA.  She did not regard the decision as constituting disproportionate interference with MW’s rights protected by Article 8 of the ECHR.  

The view of the Tribunal reconsidering her appeal was that such support was not barred by rule 297 (v) if the money could be regarded as belonging to MW’s parents.  This would be the case if it was being paid to them under a court order, a covenant or some other legally binding document.  But since the money was not being paid in this way the arrangement lacked the necessary formality and the requirements of the rule were not met.  The Tribunal also accepted that the Immigration Judge’s findings with respect to MW’s rights protected by Article 8 were inadequate.  It did not adjourn the case for further reconsideration however because in its view MW’s case could not be seen as “truly exceptional” – applying the test later discredited by the House of Lords in Huang; Kashmiri v Secretary of State  [2007] UKHL11 and later still by the Court of Appeal in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801.

The Court of Appeal first considered what the new rule 297 (iv) and (v) meant.  For MW it was submitted that the purpose of the rule was  - in accordance with the UK’s adherence to Article 8 of the ECHR - to promote family life between parent and child, and that this aim would be frustrated if all third party support was to be excluded.  Parents would be unable to rely upon support from a charity, church or other social benefactor or maintenance from a partner or an ex-partner.  If the words of the rule did have this effect they should be “read down” so that compatibility with Article 8 could be achieved.  

The Court (per Tuckey LJ with whom Rimer and Lawrence Collins LLJ agreed - but please see the comment on Lawrence Collins LJ’s brief judgment below) found that what the rule said was clear – maintenance had to be provided by the parent of the child.  Maintenance which came from a third party was not “maintenance by the parent”.  Money given to the parent to enable the child to be maintained was also not maintenance by the parent – because in reality it was not the parent but the third party who was maintaining the child.   The parent was acting merely as a conduit between the third party and the child.  Tuckey LJ noted that his view was consistent with the decisions in AA (3rd Party Maintenance R297 (v)) Bangladesh [2005] UKAIT 00015, AM (3rd party support not permitted R281 (v)) Ethiopia [2007] UKAIT 00058, and VS (paragraph 317 (iii) – no third party support) Sri Lanka [2007] UKAIT 00069, all of which he credited to the President of the Asylum and Immigration Tribunal.  

Explaining his rejection of counsel for MW’s submissions Tuckey LJ said:

“In framing the amendment to the rule the Immigration Authorities were entitled to take the view that before entry would be allowed it had to be shown that the parent had adequate means to support the child.  It is the parent who has the legal obligation to do so and the one who has or should have the greatest incentive to maintain the child.  Third party arrangements of the kind in question in this case are necessarily more precarious and, as the Tribunal said in AA, more difficult to verify.  Furthermore the rules do not provide for undertakings to be taken from third parties.  These are policy reasons which I think justified the amendment.”  

The Court therefore dismissed MW’s appeal under rule 297.  

It is possible that this remark regarding undertakings from third parties should not be understood to mean that the rule prohibits such undertakings – because earlier in his judgment Tuckey LJ indicated that he could see that:

“...money received by a parent under a deed of covenant or court order for maintenance might qualify if it could be shown that the legal obligation to pay it was being or was likely to be met.  But I do not think I should attempt to explore or define, the boundaries of the rule.”

While with respect the judgment does not make this entirely clear this would seem to suggest that the boundaries of the rule might encompass such undertakings. Therefore the fact that the rule does not provide for undertakings would not mean for example that an Immigration Judge who was satisfied as to the existence of a binding legal obligation between a third party and a child’s parent could not lawfully allow the child’s appeal against a refusal of entry clearance.   

In his judgment Lawrence Collins LJ stated that it was with some regret that he agreed that the appeal under the immigration rules must be dismissed, and that he hoped that consideration could be given to amending the rule:

“consistently with the policy considerations mentioned by Tuckey LJ  [in the first of the two sections of his judgment quoted above] to facilitate reunion where there is verifiable evidence of long-term support from third parties”

With regard to Article 8 the Court was agreed that the appeal should be allowed and remitted to the Asylum and Immigration Tribunal for reconsideration.