Third Party Support: Interpretation of Huang
The Asylum and Immigration Tribunal (AIT) has decided in AM (3rd party support not permitted R281 (v)) Ethiopia [2007] UKAIT 00058 that applicants for entry clearance (a visa) cannot rely upon third party support to satisfy the maintenance requirements of the Immigration Rules unless the Rules expressly state that they may do so. The AIT also considered the House of Lords’ judgment on Article 8 of the European Convention on Human Rights (ECHR), which protects the right to private and family life, in Huang and Kashmiri and concluded that it made no difference to the outcome of any human rights claims based upon an alleged breach of the right to respect for family and private life.
Third Party Support
‘Third party support’ is the expression used to describe the situation in which the sponsor and the applicant may not have sufficient means to maintain themselves adequately without recourse to public funds (State benefits provided to people in need), but where a third party (usually a relative) is prepared to provide sufficient additional financial support to enable them to do so.
The issue of whether third party support can be taken into account in deciding whether an applicant satisfies the maintenance requirements of the Immigration Rules is a long-running one. It was thought that the matter had been resolved by the decision in Arman Ali [200] INLR 89 in 1999, in which the High Court found that the Immigration Rules would not comply with Article 8 of the European Convention on Human Rights (ECHR), which protects the right to respect for family and private life, if they were interpreted to exclude a family member from the United Kingdom in circumstances where long-term third party support was available and where their admission would not affect the economic well-being of the UK because there would be no recourse to public funds or any other detriment.
The Home Office did not appeal the decision in Arman Ali. However, it appeared to signal its disagreement with the judgment by almost immediately publishing new policy instructions indicating that spouses were required to support themselves from their own resources, and by changing the Rules relating to the admission of children by restricting their support to the parent(s) or relative sponsoring the child.
The Home Office changes gave rise to considerable confusion. Notwithstanding this, many immigration judges continued to apply Arman Ali by taking account of third party support in determining entry clearance (visa) applications. The President of the AIT has recently launched an attack on this approach.
In AA (3rd party maintenance R297 (v)) Bangladesh [2005] UKAIT 00105, a case involving a child applicant, the AIT pointed to the fact that the Immigration Rules had changed since Arman Ali was decided, and that there was now an express provision restricting financial support to the parent. Leaving aside the question of whether the outcome might have breached the applicant’s right to family life, this decision was relatively uncontroversial as the Immigration Rules did appear to have been changed to achieve that purpose.
The decision in AM is much more contentious because the Immigration Rules relating to spouses under Rule 281 utilise the same words as they did at the time Arman Ali was decided. Despite this, the AIT stated that Arman Ali is no longer to be followed on the basis that the Human Rights Act was not in force at the time it was decided. However, the High Court in Arman Ali was interpreting Article 8 of the European Convention on Human Rights, not domestic legislation, and some commentators may take the view that the AIT’s distinction is an arbitrary one. The AIT was dismissive of the role of human rights considerations in interpretation of the Immigration Rules, stating simply that unless it was established that the Rule was inconsistent with a Convention right, then human rights would not come into play.
The AIT substituted its own interpretation of the Immigration Rules for that applied in Arman Ali and concluded that the requirement that the parties will be able to support themselves and any dependants adequately without recourse to public funds was to be interpreted in accordance with its natural meaning. It considered that the natural meaning of “the parties” was restricted to the individuals themselves (applicant and sponsor) and did not permit third party support. The AIT approved the decision in MK (Adequacy of maintenance – disabled sponsor) Somalia on whether disability benefits could be used to prove adequate financial support.
Huang and the Right to Private and Family Life
The AIT also considered whether the refusal of entry clearance (a visa) would breach Article 8 of the European Convention on Human Rights (ECHR). It referred to the recent House of Lords judgment in Huang and Kashmiri, although it did not hear argument about its effect since the judgment was handed down after the hearing of the appeal. In Huang, the House of Lords expressly rejected the concept of an exceptionality test in determining Article 8 claims.
However, despite the fact that the Court of Appeal’s judgment was overturned on the basis that it had misdirected itself by imposing the exceptionality test, the AIT concluded that the judgment would not make it any easier for appellants to succeed as immigration judges had always been guided to the effect that ‘decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases’, as expressed by Lord Bingham in the case of Razgar [2004] UKHL 27 in the UK House of Lords. Crucially, the AIT neglected to refer here to the House of Lords clarification that Lord Bingham was only referring to an expectation that such cases would be exceptional. The House of Lords would not have rejected the exceptionality test if it did not expect it to make a difference to the outcome of some appeals, and the AIT was surely wrong to conclude that it would not make it any easier for at least some appellants to succeed.
Having applied this interpretation of the Huang test, the AIT rejected the appellant’s claim that refusal of entry clearance breached his right to respect for family life. The applicant is 77 years old. The family had fled Somalia. He is living in Ethiopia where he has no legal status. He has health problems and suffers from a disability. His adult son is in Ethiopia, but he has been separated from his wife and other children since 1994. She was a refugee in the UK. She applied for her husband to join her when she became a British Citizen in May 2003 (it appears that she waited until she became a British Citizen on advice, although it is not clear why this advice was given. Refugees do have rights of family reunion that include rights of reunion even where it is necessary to rely on public funds for support). The Home Office took until November 2005 to decide the application and the appeal from the AIT is a stage in the process of deciding that original May 2003 application. The applicant is supported by money sent from his wife and daughter in the UK.
The effect of this decision, if it is upheld and applied, will be to make it almost impossible for many applicants to join their relatives in the UK under the Immigration Rules. Some applicants who are receiving third party support in their own country from a relative in the UK may be able to rely instead upon Rule 317 concerning dependent relatives. However, the test under this Rule is much more onerous since it requires the applicant to show they are “financially wholly or mainly dependent on the relative present and settled in the United Kingdom”, and that they have no other close relatives in their own country to whom they could turn for financial support. People under 65 also have to show that they are living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the UK.
It is to be hoped that the appellant in AM (Ethiopia) will seek to challenge the decision of the AIT in the Court of Appeal, given the clear divergence from the decision of the High Court in Armin Ali. People who are considering seeking leave to enter the UK to join a spouse or other close relative who receive third party support are therefore advised to continue to keep records of such support in case AM is overturned. They should also take legal advice on their position. People who are recognised as refugees should take advice on their rights to family reunion at an early stage following recognition as a refugee.
