3rd party support judgment

Further to my earlier posts on this, the judgment in Mahad and Others [2009] UKSC 16 (as it can now be called) is now available on the Supreme Court website [update: and on BAILII).

It makes interesting reading for any immigration lawyer. I will pick out some of my edited highlights.

Firstly, there is commentary on how the Immigration Rules should be interpreted. The earlier Lords case of Odelola is, inevitably, approved. Lord Brown, delivering the leading judgment, goes on to say that nevertheless, the meaning of the rules

"...is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State’s intention to be discovered from the Immigration Directorates’ Instructions (IDIs) issued intermittently to guide immigration officers in their application of the rules. IDIs are given pursuant to paragraph 1(3) of Schedule 2 to the 1971 Act which provides that:

'In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State . . .'

Free Movement cannot help but notice that this would be rather helpful in any appeal against MS (Somalia)...

Lord Brown goes on to comment that it is evident that the IDIs have frequently been issued inconsistently with the rules. This is very true, and many times the courts and tribunal have shown their exasperation at the conflicts between rules and policies, most recently in the long residence case of SA (long residence concession) Bangladesh [2009] UKAIT 00051. This is a to edged sword, though, as many of the inconsistencies are actually more generous than the rules, or at least more generous than the rules first appear on an initial reading.

Support of kindly uncles OK, C. Dickens relieved

Lord Brown decides to treat all of the relevant rules in the same way: 281, 297 and 317, in relation to spouses and partners, children and other dependant relatives respectively. Here, the Secretary of State is to an extent hoist by his own petard. Having argued that the change to rule 297 specifically in relation to children did not prevent the other immigration rules from being construed to prevent third party support, the logical consequence of the Court being minded to allow the appeal in relation to 281 and 317, where the wording is more ambiguous, is that the appeal is also allowed in relation to 297. This comes as a pleasant surprise to Free Movement, who thought the new wording of rule 297 was fairly clear cut against third party support.

In the end, the ratio is essentially that there is no reason of construction to prevent third party support, third party support is already accepted in relation to accommodation and there is no rationale for distinguishing between monetary support and accommodation.

The Court also allows joint sponsorship, and without any need for joint sponsors to have been named in the right box on the application form. Further, the Court also comments as follows:

Provided only that the relative abroad is getting funds on which he is wholly or mainly dependent and which he would not be getting save for his relative present and settled in the UK, that is sufficient. It is not necessary for the funds ever to have been part of the settled relative’s own personal resources.

The judgment allows an ECO or the tribunal to look at the question of whether third party support is sufficiently well-evidenced and reliable-looking to take into account when considering the question of maintenance. This is simply a sensible outcome.