Mahad v Entry Clearance Officer

This appeal concerned the construction of the maintenance and accommodation requirements in Part 8 of the Immigration Rules (notably rules 281, 297 and 317) and whether those requirements preclude reliance on financial support provided by third parties. The Supreme Court held that the relevant rules do not, by their natural meaning, exclude third party support provided that the applicant can satisfy the entry clearance officer that there will be no recourse to public funds.

Key legal points decided were:

• Maintenance: the phrases requiring that parties "will be able to maintain themselves" (rule 281(v)) or that a child "can, and will, be maintained adequately by the parent..." (rule 297(v)) or that a dependent relative "can, and will, be maintained adequately" (rule 317(iva)) should not be read as necessarily excluding third party financial support; the governing requirement is only that there be no recourse to public funds.
• Verification and undertakings: although concerns about verification and the absence of rule 35 undertakings from third parties are legitimate, they do not justify reading an exclusion of third party support into the Rules; where appropriate, ECOs can invite third parties to become joint sponsors or seek undertakings.
• Joint sponsorship and rule 317(iii): the Rules permit joint sponsorship and rule 317(iii) is satisfied if the overseas dependent receives funds because of the settled relative in the UK even if the ultimate source is a third party (the financial link is satisfied by the settled relative providing or arranging the payments).

The appeals concerned five consolidated immigration cases in which applicants sought entry clearance to join family members in the United Kingdom under the Family Members provisions (Part 8) of the Immigration Rules. The central legal issue was whether the maintenance requirements in rules 281 (spouses), 297 (children) and 317 (other dependent relatives) preclude long-term financial support from third parties, or whether the sponsor alone must be the source of maintenance. The appellants had previously had adverse decisions in the Asylum and Immigration Tribunal and the Court of Appeal on aspects of this issue.

Nature of the claim / relief sought: appellants sought entry clearance; on appeal to the Supreme Court they sought a declaration that the Part 8 maintenance requirements permit verified third party support and, relatedly, that joint sponsorship is permissible and that rule 317(iii)'s dependence requirement can be satisfied where funds flow via or because of the settled relative.

Procedural history: these appeals came from decisions of the Court of Appeal in AM (Ethiopia) v Entry Clearance Officer [2008] EWCA Civ 1082 and AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634, themselves arising after determinations by entry clearance officers and the AIT.

Issues framed: (i) whether the Part 8 maintenance provisions permit third party financial support; (ii) whether joint sponsorship is permissible and whether a joint sponsor must be named in the application form; (iii) the construction of rule 317(iii) on dependence; and (iv) related Convention (article 8 and article 14) arguments advanced in some cases.

Court's reasoning (concise): the Court applied conventional principles of construction for the Rules, reading language in context and recognising the Rules as administrative policy statements whose intention is to be discerned from their words. The Court noted that the accommodation provisions already permit third party provision of accommodation and there is no textual difference in Part 8 maintenance provisions to justify a contrary result for maintenance. The concluding and governing phrase in each relevant paragraph is "without recourse to public funds"; that phrase is satisfied when reliable third party support removes the need for public funds. Concerns about verification and enforceability of third party promises were acknowledged but regarded as insufficient to import a prohibition into the Rules; the Home Office can, where appropriate, ask a third party to become a joint sponsor or seek undertakings under rule 35. Comparison with expressly self-sufficient provisions in Parts 6 and 7 showed that if exclusion of third party support were intended it could have been made explicit. The Court therefore construed rules 281, 297 and 317 as allowing third party support where it can be shown reliably to prevent recourse to public funds. The court did not need to decide the article 8 compatibility point because it resolved the case on construction grounds.

Disposition: the Supreme Court allowed the appeals, restored the Immigration Judge's order in AM(1) and remitted the other appeals to the AIT for redetermination so that third party offers of financial assistance may be verified and assessed in light of the proper construction of the Rules. One appellant's entry clearance was conceded once the central issue was decided (disability discrimination argument no longer pressed).

Appeal allowed. The Supreme Court held that the maintenance requirements in rules 281, 297 and 317 of Part 8 of the Immigration Rules do not, by their natural meaning, exclude third party financial support; the decisive requirement is absence of recourse to public funds. The Court also held that joint sponsorship is permissible and that rule 317(iii) is satisfied where the overseas dependent receives funds because of the settled relative, even if the ultimate source is a third party. The appeals were allowed and some matters remitted to the AIT for redetermination and verification of third party support.

Appeals to the Supreme Court from decisions of the Court of Appeal: AM (Ethiopia) v Entry Clearance Officer [2008] EWCA Civ 1082 and AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634. Prior decisions included determinations by the Asylum and Immigration Tribunal and entry clearance officers; the Supreme Court reversed or reformulated parts of the Court of Appeal reasoning and remitted some cases to the AIT for redetermination.