AM (Ethiopia) & Ors & Anor v Entry Clearance Officer

Third-party financial support cannot satisfy the maintenance requirements for family-entry applications under Rules 281, 297 and, by majority, 317. The relevant maintenance must come from the entrant and the relevant sponsor, parent or relative. The Immigration Rules are policy guidance and must be construed sensibly according to their natural language. Courts cannot add an overarching family-life purpose or rewrite the Secretary of State’s policy. Disability living allowance paid to a sponsor may be considered, but the tribunal must find that it is available, will be used for the entrant and is sufficient. Article 8 remains a separate safeguard. A person may fail under the Rules yet succeed under Article 8.

Five conjoined appeals arose from reconsideration determinations of the Asylum and Immigration Appeal Tribunal concerning applications for entry clearance by spouses, children and dependent relatives. The central issue was whether financial support from relatives or other third parties could satisfy the maintenance, support or financial-dependency requirements in Rules 281, 297 and 317.

Further issues concerned disability living allowance and income support received by sponsors or parents, the effect of administrative delay under Article 8, the identification of sponsors, and the adequacy of an Immigration Judge’s assessment of available funds.

By a majority, Laws LJ and Pill LJ allowed the appeals in AM and MB and remitted them to the AIT. The appeals in VS, SA/AW and KA/MI were dismissed. Carnwath LJ agreed with the disposal except that he would have allowed and remitted KA/MI.

1. Interpretation of the Rules. The Immigration Rules made under section 3(2) of the Immigration Act 1971 are policy guidance, not ordinary delegated legislation. They must be construed sensibly according to their natural language. There is no overarching presumption that they promote family life or favour either liberal or restrictive outcomes. The court cannot rewrite them. This approach was supported by [2008] EWCA Civ 102, [2008] EWCA Civ 308 and the earlier authorities discussed in that decision.
2. Third-party support. Following [2007] EWCA Civ 1376, third-party financial support could not satisfy Rules 281 and 297(v). The majority held that the same construction applied to Rule 317(iva), read in the context of the family-entry scheme, the defined role of the sponsor and the undertaking arrangements in Rule 35. Carnwath LJ disagreed on Rule 317(iva), considering that its ordinary language did not identify the maintainer.
3. Benefits and adequacy. In light of [2007] EWCA Civ 1521, disability living allowance paid to a sponsor or parent could be taken into account. The tribunal nevertheless had to determine whether it was available and likely to be used for the entrant’s maintenance. AM therefore required further findings. MB also required further findings because the Immigration Judge’s calculation relied on unexplained outgoings and an unsupported estimate of surplus funds. Income support was not an additional resource which could justify maintenance below an objective adequate standard; an asserted frugal lifestyle was insufficient.
4. Article 8. The Rules need not themselves guarantee compliance with Article 8. A separate proportionality assessment remained necessary. The AIT’s reasoning in AM was not undermined by [2008] UKHL 41: delay factors concerning deeper ties and fading impermanence applied principally to persons already present and facing removal, while no dysfunctional system was shown in this entry-clearance case.
5. Sponsorship. The majority held that the sponsor identified in an entry-clearance application could not in these appeals be displaced by a later assertion that another relative provided the funds. Laws LJ considered joint sponsorship legally possible in principle; Pill LJ reserved that issue. All three judges agreed that the unsupported assessment of Ayan’s ability to fund KA and MI could not stand, but the majority dismissed KA/MI on the other legal grounds.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 1082, allowed the appeals in AM and MB and remitted them to the AIT; otherwise dismissed the conjoined appeals.
2. Asylum and Immigration Appeal Tribunal: Reconsideration determinations had dismissed or reversed the relevant appeals, principally on the basis that third-party support could not satisfy the Immigration Rules and, in MB, that disability living allowance could not be taken into account.