VS (Sri Lanka) v Entry Clearance Officer

Whether third-party funds remitted by a sponsor to a dependent parent satisfy the financial-dependency requirement in Rule 317 may be a separately justiciable issue. The question depends on whether the funds are properly treated as the sponsor’s available money or whether the sponsor is merely a conduit. A decision concerning a differently configured immigration rule does not necessarily determine the issue. Under Article 8, proportionality is the governing test; using exceptional circumstances as its surrogate is unlawful. An erroneous tribunal test may nevertheless be immaterial where a proper proportionality assessment plainly leads to the same result. A disability-discrimination argument also requires sufficient connexity between the disability relied upon and the right asserted.

An elderly Sri Lankan father sought entry clearance to live with his disabled son. The son received disability benefits and sent his father £100 each month, but that payment was provided by a friend. The immigration judge held that the father was dependent on the friend rather than the sponsor. On full reconsideration, the Asylum & Immigration Tribunal upheld that decision. The proposed grounds concerned Rule 317(iii), disability discrimination and Article 8. The central issue was whether third-party funding could arguably satisfy the sponsor-dependency requirement, despite earlier authority concerning a different immigration rule.

Disposition and Rule 317

1. The application for permission to appeal was granted on the single ground concerning the construction and application of Rule 317(iii). The merits of that issue were not finally determined.
2. The evidence showed that the sponsor, who was disabled and dependent on benefits, remitted money supplied by a friend to his widowed father. The immigration judge treated the sponsor as a mere conduit. The Asylum & Immigration Tribunal relied on AA (3rd party maintenance R297 (v)) Bangladesh [2005] UKAIT 00105, based on MK (Somalia) [2007] UKAIT 00028. The latter decision had been overset because money from disability living allowance was legally the sponsor’s to spend as she chose.
3. There was a respectable argument that the source of the sponsor’s available funds could not properly be differentiated in the present way. The sponsor could argue that the money was his, with the friend’s generosity enabling him to send it. Although MW (Liberia) [2007] EWCA Civ 1376 concerned Rule 297, a differently configured rule, there was an arguable margin of distinction. If that case proceeded to the House of Lords, the appeal should abide its outcome.

Other grounds

1. The disability-discrimination argument was fundamentally flawed. The father was the appellant, and no Disability Discrimination Act right was asserted by reference to his own disability. The son’s low income could also result from low-paid work unrelated to disability. There was insufficient connexity between the relevant elements. The Disability Discrimination Act 2005 ground therefore afforded no basis for permission.
2. The Tribunal had applied an unlawful approach to Article 8 by treating the rejected exceptionality test as continuing to govern. Following Huang v SSHD [2007] UKHL 11, proportionality was the sole test. However, as explained in AG (Eritrea) [2007] EWCA Civ 801, an erroneous test could be immaterial where the claim could not succeed on a proper proportionality assessment. This was such a case. The family had drifted apart, the son had not seen his father for at least 12 years, and responsibility for his upkeep arose only after the father was widowed. Although emotional and physical support might engage family life under Article 8(1), the interference was not dramatic and was readily justified by the entry-clearance rule.

Directions for the conduct of the appeal were reserved. Order: application granted.

1. Court of Appeal (Civil Division). Granted permission to appeal on the Rule 317(iii) third-party funding issue and reserved directions.
2. Asylum & Immigration Tribunal. On full reconsideration, upheld the immigration judge’s decision that the appellant was dependent on the third-party donor rather than the sponsor.
3. Immigration judge. Decided the financial-dependency issue against the appellant and rejected the Article 8 argument.