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Third party support

Third party support

[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.

Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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