VS (Para 317(iii) – no 3rd party support) Sri Lanka [2007] UKAIT 00069

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Heard at: Field House                                                 	Date of Hearing: 26 June 2007

Before:

Mr Justice Hodge, President
Miss E Arfon-Jones DL, Deputy President of the Asylum and Immigration Tribunal 

Between

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant:		Mr Nicholson of Counsel
For the Respondent:		Mr Walker, Home Office Presenting Officer

Third party support is not permitted under paragraph 317(iii) of the Immigration Rules.  Where a sponsor is wholly dependent upon public funds and sends to the relative outside the UK money he has received from a third party he is a mere conduit for that money.  That does not create a dependency on the sponsor within the Rules.

DETERMINATION AND REASONS

1.	This is a reconsideration case.  The appellant born, 12 March 1941, is a citizen of Sri Lanka.  He applied for entry clearance to the United Kingdom as the dependent relative of his son.  His application was refused on 4 September 2006.  He appealed to the Tribunal and following a hearing before Immigration Judge Mayall on 1 February 2007, his appeal was dismissed.  

2.	The appellant applied for reconsideration of the decision and Senior Immigration Batiste ordered reconsideration of the decision on 10 April 2007.  He ordered reconsideration in the following terms:-

“This application was made in time and the grounds, and in particular the first ground in relation to the nature of dependency demonstrates that the Immigration Judge may have made a material error of law and a real possibility that the Tribunal would have decided the appeal differently on reconsideration.”

3.	The Immigration Judge was satisfied that the appellant met all the requirements of paragraph 317 of the Immigration Rules save for paragraph 317(iii) of HC395.

4.	Thus the matter came before us at Field House on 26 June 2007.

5.	The relevant Immigration Rule is paragraph 317 of HC395, as amended.  It is not necessary to set out the rule out in full.  The rule does, however, require the appellant to demonstrate inter alia that he:-

(iii)	is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; ”

6.	The Notice of Refusal issued to the appellant indicated that the respondent was not satisfied that the appellant met the following requirements:-

“
•	I am not satisfied that you are financially wholly or mainly dependant on your son in the UK
•	I am not satisfied that you can and will be maintained and or accommodated adequately without recourse to (additional) public funds in accommodation which your son or occupies exclusively
•	I am not satisfied that you have no other close relatives in your own country to whom you could turn for financial support.
•	I am not satisfied that you are living outside the UK in the most exceptional compassionate circumstances and are mainly dependant financially on relatives settled in the UK.”

7.	The Immigration Judge assessed the evidence and found at paragraphs 59 to 66 of the determination inclusive that all the requirements of the rule had been met save for the question of whether the appellant was dependent “on the relative, present and settled in the United Kingdom”.

8.	At paragraphs 68 to 72 inclusive of the determination the Immigration Judge explained why he was not satisfied that the appellant met the requirements of sub-paragraph (iii).  The Immigration Judge dealt with the issue of dependency on the UK relative as follows:-

“68.	I consider that the wording of the Rule is clear.  The appellant has to be dependent upon his son.  The Rule is designed to facilitate entry, in certain circumstances, for those who are dependent on their relatives settled in the UK.  It is not a Rule designed to facilitate entry to persons who happen to have a relative present and settled in the UK but who are dependent financially on some other person.  For example it would not avail an applicant to show that he had a relative present and settled in the UK and that he was financially dependent upon some other person in his home country.  Similarly it would not, in my judgment, avail him to show that he had a relative present and settled in the UK but he was financially dependent upon another party who also happened to be present and settled in the UK.  The Rule requires that the relative present and settled in the UK is the person upon whom the applicant is dependent.

69.	I am strengthened in this conclusion by the decision in AA Bangladesh [2005] UKAIT 00105. 

70.	Can it be said, in this case, that the appellant is wholly or mainly dependent upon his son?  I regret that I do not think it can be so said.  One must look at the reality of the situation.  The reality is that the funds come from Mr Arunan.  The sponsor is a mere conduit in this case.

71.	It is said that because the provision of the funds depends upon the friendship between Mr Arunan and the son then, in reality, the provision is dependent upon the relationship between sponsor and appellant.  That may be correct insofar as it goes.  It may well be that the reason Mr Arunan provides support to the appellant is because of his friendship with his son.  (Although the tenor of the evidence from Mr Arunan was that he was happy to provide the support because of the overall family connection).  Whatever the reason for the provision of support, however, the fact remains that the support comes from Mr Arunan and not from the sponsor.

72.	Thus I regret that I am not satisfied that the appellant meets the requirements of paragraph 317(3).“

9.	The Immigration Judge then considered the applicability of Article 8 to this appeal.  He dismissed the appeal pursuant both to the Immigration Rules and on human rights grounds.

10.	At the hearing before us, Mr Nicholson reminded us that the sole issue was whether or not the Immigration Judge had made a material error of law in his interpretation of Rule 317(iii).  He reminded us that the Immigration Judge had found in the appellant’s favour in respect of all other aspects of the rule and as no Reply had been submitted by the respondent pursuant to Rule 30 of the Procedure Rules, he invited us to conclude that the interpretation of Rule 317(iii) was the only relevant issue to be considered. 

11.	Relying on the grounds as submitted to the Tribunal, he also reminded us of the appellant’s witness statement at Annex A1 to A3.  It had been accepted that the appellant was living alone, was over the age of 65 and dependent on his son in the United Kingdom.  Paragraph 6 of the witness statement dealt with the serious disability of the son, the sponsor, and its consequences.

12.	Mr Nicholson submitted that this was a case which focussed on the issue of dependency.  The cases of AA Bangladesh [2005] UKAIT 00105 and AM Ethiopia [2007] UKAIT 00058 did not deal with the issue of dependency per se.  MK Somalia [2007] UKAIT 0028 was not on point.  It was to be remembered that this appeal did not relate to a child.

13.	Mr Nicholson argued that the requirement of the rule in relation to dependency was met in that the appellant was dependent on the sponsor.  The source of the sponsor’s income, albeit that it created a separate dependency of its own, was not relevant to the simple question of whether or not the appellant was dependent upon the sponsor.  The source of income was irrelevant.  He further relied on the fact that no mischief was done to Rule 317(iii) by ignoring the completely separate dependency of the sponsor on Mr Arunan.

14.	In such circumstances, Mr Nicholson urged us to conclude that the Immigration Judge had made a material error of law in his construction of Rule 317(iii).  He further submitted that if we accepted that to be the case, all other elements of the rule having been satisfied, the appeal should be allowed.

15.	Mr Nicholson further addressed us on the need to be compatible with Article 8 where a lack of clarity existed in the wording of the Immigration Rule.  Family life had been clearly established in this case; there was a blood relationship, that of parent and child.  At paragraph 75 of his determination the Immigration Judge had clearly found there to be family life.  Mr Nicholson reminded us that the sponsor was disabled and that he wished to enjoy family life with his elderly widowed father.  The Immigration Judge’s interpretation of Rule 317 was unsustainable and incompatible with Article 8 and 14.  It was appropriate in this appeal to take into consideration the possibility of discrimination under Article 14.  

16.	As the sponsor, because of his medical condition, was unable to visit his father in Sri Lanka, there was an interference with family life.  There was a dependency between father and son and family life was frustrated by the sponsor’s disability.

17.	The Immigration Judge had applied the wrong test when considering the applicability of Article 8.  He had applied the test of exceptionality which had now been overtaken by the opinion in the House of Lords in the case of Huang v Secretary of State for the Home Department [2007] UKHL 11.  The correct approach was set out at paragraph 20 of the HL opinion thus:-

“the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8.” 
 
18.	Mr Walker addressed us on behalf of the respondent.  In accepting that the money supplied by Mr Arunan was then sent to the appellant, Mr Walker acknowledged some difficulty in arguing that the Immigration Judge had applied correctly the provisions of Rule 317(iii).  The rule did not specify the source of any money and Mr Walker accepted that the sponsor was a conduit for the money.

19.	Mr Walker expressed concerns about the short-term funding from Mr Arunan and invited us to consider the length of the dependency.  However, he acknowledged that the Immigration Judge had found both the sponsor and Mr Arunan to be credible witnesses.  At paragraph 62 of his determination the Immigration Judge had made specific findings in relation to Mr Arunan’s ability and willingness to support the sponsor to the extent of £100 per month.  The Immigration Judge stated “I accept that he has done so in the past and is willing to continue to do so in the future.  I accept that he does so with the support of his wife.  I accept that, on his earnings, he is able to afford the £100 per month which he supplies to the appellant and, could, if necessary, provide slightly more.”

20.	Mr Nicholson, acknowledging the concerns expressed by Mr Walker, nevertheless prayed in aid that Mr Walker had essentially conceded the reconsideration.  Mr Nicholson, submitting that the appellant was entitled to succeed, urged us to substitute our decision to allow the appeal in place of the Immigration Judge’s dismissal of the appeal.

Conclusion

21.	In reconsidering the appellant’s appeal, we must consider whether or not paragraph 317(iii) of the Immigration Rules has been met.  Albeit that there appears to be agreement between both parties that the provisions of Rule 317(iii) had been met in that the appellant “is financially wholly or mainly dependent on the relative present and settled in the United Kingdom”, that, however, does not bind us in considering the issue.  Whilst we must consider the submissions made on behalf of the parties, it is for us to determine the issue on the evidence before us and the relevant law.

22.	The Immigration Judge found that the sponsor was dependent upon income support and disability living allowance as well as receiving housing benefit.  It follows therefrom that the sponsor would not be in a position to support his father without Mr Arunan’s generosity.  The £100 per month sent to Sri Lanka to the appellant is the money provided by Mr Arunan.

23.	The Immigration Judge at paragraphs 65 and 66 of the determination found as follows:

“65.	I am satisfied that, since 2005 the appellant has been in receipt of approximately £100 per month from the UK.  The source of that money has been Mr Arunan.  Mr Arunan has provided the money to the sponsor who has sent it to his father.  I am entirely satisfied that the money from Mr Arunan was earmarked for the father.  It was not money given to the sponsor to do with as he wished.  It was for the father.  As Mr Arunan said in his witness statement “I am helping him (the sponsor) financially providing £100 a month to support his father.  I am happy to support (the appellant) and I am able to afford it.”
		
66.	I am satisfied that the appellant is wholly or mainly dependent on that money in Sri Lanka.  Without it he could not survive.  His pension is not sufficient to meet his accommodation costs and other living expenses.  The amount of money from the UK is greater than the amount of his pension.”

24.	The Immigration Judge’s conclusions were set out at paragraph 68 to 72, quoted earlier in this determination.

25.	The factual reality is that the appellant’s dependency is on Mr Arunan; the sponsor is nothing more than a mere conduit.  There is little difference between this situation and paying an amount into a bank.  Such an arrangement would not create a dependency on the bank.  Wholly dependent upon public funds, the sponsor’s financial situation does not allow for him to remit money to the appellant, thereby creating a dependency.

26.	The rationale of AA Bangladesh [2005] UKAIT 00105 makes clear that third party support is not permitted.  Whilst AA Bangladesh concerned paragraph 297 of the Immigration Rules the reasoning is clear.  We also note that AA was approved in MK Somalia which found that any enhanced allowance payable to a sponsor because of a disability, such as the disability living allowance, was not available to support dependents.  That allowance is disability specific and meets the particular needs and expenses occasioned by that disability. 
  
27.	 The burden remained on the appellant to prove dependency on the sponsor.  To do so he needed to demonstrate that he was living on the sponsor’s money.  The question which arises is whether or not the money was truly the sponsor’s to give to the appellant.  There was no evidence to that effect, such as income tax declarations or his applications for benefit.  Further if the money was indeed that of the sponsor’s he should have informed the social security authorities and his benefit would inevitably have been cut.  We conclude the Immigration Judge was correct to treat the sponsor as no more than a conduit.

28.	Accordingly, we find that the Immigration Judge made no material error of law in his application of Rule 317(iii) to the facts of this particular case.  We see no reason to doubt that the Immigration Judge gave a purposive interpretation of the rule and reached at paragraph 68 of his determination a  proper and correct  conclusion.

29.	Whether or  not  the appellant is entitled to  succeed  under the  Human  Rights  Act, notwithstanding his failure to meet the requirements of the Immigration Rules, is to be considered in the light  of  Huang.  It is necessary to take full account of all considerations and decide whether or not the inability to enjoy family life is sufficiently serious to amount to a breach of the rights protected by Article 8.

30.	At paragraph 75 of his determination, the Immigration Judge weighed the various factors relating to the appellant’s situation and concluded that the respondent’s decision was proportionate.  We consider that he dealt adequately with the Article 8 issue albeit that the House of Lords opinion in Huang had not at the date of the hearing been published.  Although the concept of a legal test of exceptionality has been rejected, the approach to Article 8 cases will be as before.  The expectation is, that only in rare cases will Article 8 be successfully invoked when an appellant has failed to meet the requirements of the Immigration Rules.

31.	Article 14 was not argued before the Immigration Judge. It was not raised in the Grounds for Review.  No unlawful discrimination having been established before us, we find no violation of Article 14 and no reason under S.3 of the 1998 Human Rights Act to interpret Rule 317 in a way other than in which it was written. 

32.	We are satisfied that neither Article 8 nor Article 14 can be invoked successfully by the appellant in this appeal.

Decision

33.	For the reasons given above, we find that the Immigration Judge made no material error of law and we accordingly order that his determination, dismissing the appeal on both immigration grounds and human rights grounds, shall stand. 

E ARFON-JONES DL
DEPUTY PRESIDENT
          Date: