Third party can provide accommodation for spouse

Back in June of last year we reported the Asylum and Immigration Tribunal’s determination in AM (3rd party support not permitted R281 (v)) Ethiopia [2007] UKAIT 00058.  In that case the Tribunal -  chaired by its current president - found that people applying for entry clearance under rule 281 of the Immigration Rules had to show that they could maintain themselves from their own means – and that the wording of the rule prohibited them from relying on funds received from other people (known as “third parties”).  In December we reported the Court of Appeal’s judgment in MW (Liberia) v Secretary of State [2007] EWCA Civ 1376, in which the Court of Appeal upheld the Tribunal’s determination dismissing the appeal of a child against the refusal of her application to join her mother in UK – finding that children applying to come to the UK could only rely upon funds for their maintenance which were provided by their parents.  

The decision in MW Liberia listed the succession of cases in which Tribunals chaired by the President had made decisions finding that third party support was not permitted by the rules relating to children, spouses and other dependant relatives.  These were AA (3rd. Party Maintenance R 297 (v))  Bangladesh (2005) UKAIT 00015, AM (third party support not permitted Rule 281 (v)) Ethiopia (2007) UKIAT0 0058 and VS (para 317 (iii) – no third party support) Sri Lanka UKAITO 0069.  

Regarding the last of these cases it was said in the article on MW Liberia  that it was understood that the Appellant in VS was renewing his application for permission to appeal to the Court of Appeal.  Permission to appeal was granted by Sedley LJ on 25 February 2008.  The terms of the grant of permission are unknown since there is no transcript of the hearing requesting permission.  However it is understood that there are several other  cases awaiting hearing before Court of Appeal which involve the same issue.  

Last week the Asylum and Immigration Tribunal delivered its determination in AB (Third-party provision of accommodation) [2008] UKAIT 00018. This was the hearing of the Entry Clearance Officer’s application for reconsideration of the Appellant’s appeal, which had been allowed by an Immigration Judge.  The Immigration Judge had noted that the words of rule 281 (iv) were different from those of rule 281 (v).  There was nothing, he said, in rule 281 (iv) which could require the Appellant and his spouse to be responsible for funding the accommodation in which they were to live.  

The Tribunal examined the provisions of the rule and agreed with the Immigration Judge’s analysis.  It found that the rule required that the accommodation was “stable” but it did not stipulate anything about the source of the accommodation.  So if a benefactor or a relation had made adequate accommodation available to the Appellant and his spouse and the decision maker was satisfied that this arrangement was stable – the requirement of the rule was met. 

Explaining its decision the Tribunal noted the clear difference in the words of the different sub rules and further that it was the case that the cost of accommodation varied hugely throughout the UK.  It said:

“If parties were required to show that they would have adequate accommodation available to them from their own resources the answer to an Entry Clearance application would be different if the parties were thought to be going to attempt to live in central London from the answer if they were thought to be going to attempt to live in a part of the country where housing is much cheaper.  It does not seem to us that that can have been intended.”

It must be the case that there are many people who have wished to join their spouses in the UK but whose applications (or their appeals) failed because they were unable to satisfy the Entry Clearance Officer concerned of their ability  to meet both the accommodation and the maintenance requirements of rule 281.  Provided they can live for free in “stable” accommodation provided by say, a relative or friend, they will be able to rely upon this case as restricting the obligation to maintenance. 

The Tribunal did not say anything about whether similar reasoning applies to applications under rules 297 (children) or 317 (other dependant relatives).  Perhaps there will be more litigation concerning the accommodation provisions in these rules.