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Transpondia Immigration FAQ © |
| Co-sponsorship and 3rd Party Support |
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| In 2007 and 2008, the Asylum and Immigration Tribunal (AIT) handed down
some definitive decisions concerning applicants who proposed to meet the
maintenance and accommodation requirement with 3rd party support.
Before this time, the guiding principal was a case in 2000 (R v SSHD ex parte Arman Ali [2000]) which allowed relatives to offer and provide co-sponsorship.
This precedent was squashed in 2007 in a similar case wherein the Tribunal
disputed its legality with extraordinarily explicit language. We will
examine the AM case and two others that followed in its wake. AM (3rd party support not permitted R281 (v)) Ethiopia [2007] UKAIT 00058 In this case, the sponsor was a British citizen who was unable to work and receiving disability living allowance, housing support, and council tax benefit. The applicant was also disabled and showed no likelihood of being able to work. Other members of the family were in a position to provide monthly support, and the tribunal acknowledged that this support would meet the test. However, the Tribunal determined that this type of support was outside the rules because the sponsor and applicant would not be providing for themselves. This was clearly put in the judge's ruling...
We do not accept that third party support is permitted under
paragraph 281 of the Rules. The phraseology of paragraph 281(v) is widely
used throughout the Rules (see paragraphs 284, 290, and 295A). In our
judgment, the phrase “the parties will be able to maintain themselves”
refers to the individuals themselves and does not permit of the importation
of third party support to satisfy the requirement of the rule..
To remove any doubt, the Tribunal went on to say...
In our view, Arman Ali should no longer be relied upon to support the proposition that third party support is permitted if the underlying purpose of avoiding recourse to public funds is achieved.
Oddly, the rationale behind this decision was not to make life more difficult for impoverished immigrants, but rather to acknowledge that in the intervening time between the Ali case in 2000 and this case in 2007 the Human Rights Act had been implemented. And given that the Human Rights Act is now part of the UK constitutional framework, it provides a more appropriate and more objective legal pathway than a Tribunal precedent. Despite the compelling logic of this rationale, many practitioners viewed the Tribunal's decision to be a regressive one. In reviewing the decision, we found this citation to be especially useful going forward.
“Vague and unquantified expressions of goodwill are inadequate to enable an applicant for settlement to show the availability of adequate maintenance (or indeed accommodation)
even if
the rules allow third party support in principle.”
TS (Working Holidaymaker: no third party support) India [2008] UKAIT 00024 In this case, the applicant had applied for a Working Holiday Maker visa, and part of the ECO's refusal contained the following text...
The Lonely Planet Guide 2006 for the UK says that people visiting London will need at least £40 a day for the cheapest accommodation, travel and food. It goes on to say that even fairly cheap sightseeing or nightlife can easily add another £20 to this. Outside London, you will still need at least £30 a day if you have your own transport (which you say you do not) and cook your own meals. However the Guide says that if you stay in bed and breakfast accommodation eat one sit down meal a day and do not try to save money on entry fees you will need about £60 a day. You have not provided any credible explanation as to how you will be able to support yourself without taking up full time work or using public funds.
The applicant's cousin had offered 3rd party support and was able to show a sustainable annual income in excess of GBP 150,000. But as in the case above, the Tribunal focused on the precise wording of the rule, namely "...is able and intends to maintain and accommodate himself..." (emphasis mine). The Tribunal also acknowledged the AM case (discussed above) in this point...
As is said in AM at [22], mere silence in the Immigration Rules as to whether third party support is permissible cannot be taken to mean that it is. Had it been intended that third party support should satisfy a maintenance requirement it could be expected that the Immigration Rules would say so. That view has now been endorsed by the Court of Appeal in MW (Liberia) v SSHD [2007] EWCA Civ 1376.
Based upon this rationale, the applicant lost the appeal. We note with some interest that the ECO did not escape unscathed as the Tribunal had this to say
It follows also that entry clearance applications cannot properly be refused on the basis of generalities that may originate from a disapproval of the scheme and a suspicion of abuse. Each applicant is entitled to individual consideration of his own individual circumstances and individual intentions. If the application is refused, the notice of refusal and the explanatory statement must show that the refusal was based not merely on a generalised suspicion but on a proper evaluation of the appellant’s evidence.’
This indicates a break with past tradition where the ECO's personal view of the scheme (WHM, HSMP, and so on) was taken into account in his decision-making. We have explained in other parts of this site that the current Director of the Visa Services Directorate (Mark Sedwell) has worked proactively to eradicate this sort of decision-making since taking up his post in 2006. AB (Third-party provision of accommodation) [2008] UKAIT 00018 The strap line of this case is: "Paragraph 281(iv) of HC 395 does not prohibit the provision of accommodation by a third party." The applicant had applied for entry clearance as the spouse of someone present and settled in the UK. The UK sponsor lived in a house owned by a relative and contributed to household expenses, but paid no rent. Her income exceeded the amount given as income support, but not sufficiently so as to enable the couple to live independently. This point was argued by the policy side as...
“The Immigration Judge appears to have rejected the argument of the Presenting Officer regarding AM, without considering the import of the free accommodation on the sponsor’s ability to maintain the appellant. While it is acknowledged that the sponsor has savings of six thousand pounds, there is no assessment by the Immigration Judge as to whether without the free accommodation the sponsor would be able to maintain the appellant.”
Injecting realistic and pragmatic insight, the Tribunal replied to this with...
Access to accommodation in the United Kingdom is, as is well known, an expensive matter. Families with members who are entirely British citizens frequently find that it is necessary for adult children to continue to live at home until they can afford to live somewhere by themselves. It is part of the common experience of mankind that children, even adult children, continue to live with their parents or sometimes other relatives.
Based upon this rationale, and related criteria, the applicant won the appeal. What can be learnt from these decisions? From AM, we are informed that the long-standing precedent of Arman Ali is no longer a guiding principal in meeting the maintenance and accommodation hurdle, but rather has been superseded by the Human Rights Act of 1999. Under this act, individuals are entitled to a family life which cannot be intervened against by arbitrary metrics; and this is the appropriate grounds for launching a successful appeal. We can also observe that where family life is not impacted, the ability to clear the maintenance and accommodation hurdle lie solely upon the applicant and offers of co-sponsorship are likely to be excluded from the decision-making process. Finally, we can note that the conditions surrounding accommodation hurdle are uniquely formed in such a way that co-sponsorship may be acceptable if the other conditions are met (most importantly that the dwelling will remain available to the couple for the foreseeable future). |
| My capacity for sponsorship has deficiencies. Can I have a co-sponsor? | |
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This oft asked question has two sides: that from policy and that from advocacy. Let's take a look at the policy side first. We'll begin by looking at the rules. Here's paragraph 281 from HC395:
281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
This statement makes it clear that the couple must maintain themselves without recourse to public funds, and this is the intent of our laws. At issue is the phrase "...from their own resources...", which does not appear in paragraph 281 shown above. Let's now have a look at what an adjudicator wrote when an appeal was taken up: If a rich relation or a benefactor is willing and able to maintain a family in this country so that there is no need to have recourse to public funds, I see no reason in principle why that family should be kept apart. The purpose of the rules is quite clearly met and the natural meaning of the language used is consistent with the construction I have espoused ... the wording of the rule does not in terms suggest that the ability to maintain must be from the parties' own resources... (Collins J.) So based upon this ruling, sponsors are generally permitted to have a co-sponsor offering financial help or temporary accommodation. | |
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