Third party support

By On 21 October 2008 · 7 Comments · In Cases, Immigration rules, Tribunal overturned again

[UPDATE: case overturned by Supreme Court]

In a case called AM (Ethiopia) & Ors v Entry Clearance Officer [2008] EWCA Civ 1082 the Court of Appeal has just upheld the Asylum and Immigration Tribunal’s approach to the question of what lawyers call ‘third party support’.

Third party support is financial support offered to a potential immigrant in order to enable them to meet the adequate maintenance without recourse to public funds part of most immigration rules. The person offering the support will often be a close relative or family member, but is not the actual ‘sponsor’ as such, i.e. the UK-based spouse or the person sometimes nominated in the Visa Application Form (VAF).

The Court of Appeal say that third party support cannot be taken into account in rules 281, 297 or 317, the rules for spouses, children or other dependent relatives. The reasoning, however, also applies to all other immigration categories. Laws LJ finds that the immigration rules should not be constued in a strict legal sense, nor in a purposive way to enable family unity, nor to be compliant with Article 8 ECHR. The implication is that the rules mean pretty much whatever the Secretary of State wants them to mean, as they are an expression of the Secretary of State’s own policy.

The door is left open for support to be provided by a named sponsor or sponsors (the idea of joint sponsors is endorsed), but only if the sponsor is specifically referred to on the VAF. This is no use for those currently pursuing appeals. Interestingly Carnwath LJ disagrees with this and considers it overly formalistic, but finds himself in a minority on that point. Carnwath LJ will be the head of the new tribunals system which very much looks like it will include immigration and asylum work in future.

I imagine this issue will go to the Lords. Laws LJ takes a very hard and rather surprising line on how the immigration rules should be interpreted, gaily abandoning any of the aides on which lawyers would normally rely. It isn’t as if the meaning is exactly clear, quite often, so some sort of aide is usually considered useful. The argument turning on the question of when money becomes your own isn’t addressed and I would have throught there was scope for this point to be explored. Money earned from employment belongs to the recipient, as does money from a trust fund or money that is gifted to a person. One would pay tax on any of this income, in fact. What makes money regularly gifted by a third party so different? Why isn’t that considered to be part of the recipient’s resources?

Finally, though, I feel I should eat humble pie. I recently started a new category for lines of tribunal case law that have been overturned on appeal. This isn’t one of them, sadly.

 
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7 Responses to Third party support

  1. POBox says:
    22 October 2008 at 12:13 am

    This really is bad news. As FM says what about money that is gifted? Does this mean that if I gift an applicant a large amount of money, to get them through the first 6mths for example that is allowed but if I give it to them in a small amount regularly that is to be refused? I think this will just lead to refusals wherever there has been a large deposit or income with the decisino maker sighting that they “are not satified as to the origin of the funds” concluding that it is 3rd party support and not allowed.
    Isn’t it natural to rely on loans from friends and family when making immigration applications? look at the number of British students heading off on WHM visa’s to Australia who ‘borrow’ / transfer the monies to meet the requirements of the rules. Crazy.

  2. SH says:
    1 February 2009 at 8:51 pm

    You wrote “The door is left open for support to be provided by a named sponsor or sponsors (the idea of joint sponsors is endorsed), but only if the sponsor is specifically referred to on the VAF.”

    My question is, does this mean, on a Spouse Visa application, you can have 2 sponsors?

    Basing my question on reality, my wife would be the sponsor, can her mother be a “joint” sponsor, for my Spouse Visa application?

    • freemovement says:
      1 February 2009 at 9:53 pm

      The judgment is certainly a strange one in that it does rather ignore the realities of the application forms themselves. Your query is a bit too specific for me to be able to answer, I’m afraid, all I can say is that you should seek legal advice. The joint sponsor bit was specifically in relation to an elderly dependent relative under rule 317 whereas you are making a rule 281 spouse application. I cannot say with certainty that the principle is transferable.

  3. FAMOUSSAJ says:
    17 March 2009 at 9:49 pm

    Does this law also apply to accomodation? For example if you offer rent free accomodation to a relative who intends on applying for their spouse to enter the country

    • freemovement says:
      18 March 2009 at 3:18 pm

      No, it does not apply to accommodation. There is case law on this issue but I don’t have it to hand right now.

  4. JOSH says:
    7 April 2009 at 8:46 pm

    Hi free movement, i admire the way you articulate your points. Thanks very much for that.
    We have asituatuion where asponsor’s funds originates from athird country i.e suppose my sponsor is a danish national, whose employers are in Sweden. He happens to be exersing treaty rights in the Uk as a self surficient person,if am to present his financial documents as proof of self sufficient can they be accepted?

    • freemovement says:
      8 April 2009 at 12:20 pm

      This is not a forum for free legal advice. I will say that very different rules apply under European Community free movement law than under our domestic immigration rules. This is not a simply query you raise and I’d advise seeing a good immigration lawyer. There’s advice on this blog on how to find one.