Ahmed Mahad (previously referred to as AM) v Entry Clearance Officer

The family-reunification maintenance conditions in Part 8 of the Statement of Changes in Immigration Rules (HC 395) permit reliable financial support from third parties. Their governing purpose is to ensure adequate maintenance without additional recourse to public funds. The applicant must satisfy the entry clearance officer that the promised support is sufficiently assured.

Financial dependence under rule 317(iii) exists where funds reach the overseas relative because of the settled relative. The money need not originate from the settled relative’s own resources. The Rules also permit joint sponsors. Immigration rules must be read sensibly, according to their natural and ordinary meaning and their function as statements of administrative policy. The Secretary of State’s intention is determined objectively from the language used, rather than from supposed policy or departmental instructions.

Five conjoined appeals concerned applicants seeking entry clearance to join spouses or other relatives settled in the United Kingdom. The applications arose under rules 281, 297 and 317 of the Statement of Changes in Immigration Rules (HC 395). Each applicant proposed to rely wholly or partly on financial assistance from relatives or friends.

In AM (Ethiopia) v Entry Clearance Officer [2008] EWCA Civ 1082, the Court of Appeal held that all three maintenance provisions excluded third-party support. It also addressed joint sponsorship and rejected separate article 8 arguments. In AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634, the Court of Appeal rejected an argument based on the sponsor’s disability and articles 8 and 14.

The central question was whether the Part 8 maintenance requirements permit reliable third-party support. Additional issues concerned joint sponsors, the meaning of financial dependence under rule 317(iii), and discrete Convention grounds.

1. Disposition. The Supreme Court unanimously allowed all the appeals. Lord Brown delivered the leading judgment. Lords Hope, Rodger, Collins and Kerr agreed with his reasoning, while Lord Kerr and Lord Collins added concurring reasons.

2. Construction of the Rules. Immigration rules are statements of administrative policy. They should be construed sensibly according to the natural and ordinary meaning of their language, considered in the context of the Rules as a whole and their function. The Secretary of State’s intention must be found objectively in the language laid before Parliament under section 3(2) of the Immigration Act 1971. It cannot be derived from supposed policy considerations or inconsistent Immigration Directorates’ Instructions.

3. Third-party maintenance. Rules 281(v), 297(v) and 317(iva) of the Statement of Changes in Immigration Rules (HC 395) permit third-party support. The governing consideration is whether the applicant can be maintained adequately without recourse to public funds. Nothing in those provisions requires maintenance from the sponsor’s own resources. This construction accords with the acceptance of third-party accommodation, employment and legally enforceable payments. It also reflects the contrast with Parts 6 and 7, where express language excludes assistance from others.

   The applicant bears the burden of proving that any promised support is reliable. Verification may be difficult, and many applications may fail on the evidence. That practical concern does not justify reading an unexpressed prohibition into the Rules. MW (Liberia) v Secretary of State for the Home Department [2007] EWCA Civ 1376, [2008] 1 WLR 1068 was wrongly decided. The 2000 amendment to rule 297 was a child-protection measure and did not exclude third-party support.

4. Joint sponsors and dependency. Rules 297 and 317 permit joint sponsors. Singular references to a sponsor do not preclude an applicant from joining, or depending upon, more than one settled relative. Section 78(6)(c) of the Social Security Administration Act 1992 expressly contemplates joint maintenance undertakings. Under rule 317(iii), financial dependency is established when the overseas relative receives funds because of the settled relative. The funds need not originate from that relative’s personal resources.

5. Convention issues and orders. The challenge to the rejection of AM(1)’s separate article 8 claim disclosed no error. The disability discrimination issue concerning AM(2) did not require determination because the respondent withdrew any further objection to entry clearance following the ruling on third-party support. AM(1)’s successful immigration appeal was restored. The SA and AW, VS, and KA and MI appeal groups were remitted for the promised support to be verified and assessed.

1. United Kingdom Supreme Court: In Ahmed Mahad (previously referred to as AM) v Entry Clearance Officer [2009] UKSC 16, the court unanimously allowed all five conjoined appeals. It restored AM(1)’s successful immigration appeal, remitted three appeal groups for redetermination, and recorded that no further objection was maintained to AM(2)’s entry clearance.
2. Court of Appeal: In AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634, the court rejected AM(2)’s arguments based on the sponsor’s disability and articles 8 and 14.
3. Court of Appeal: In AM (Ethiopia) v Entry Clearance Officer [2008] EWCA Civ 1082, the majority held that rules 281, 297 and 317 excluded third-party maintenance. The relevant appeals were dismissed or remitted on limited grounds.
4. Asylum and Immigration Tribunal: Following the remittal of AM(1)’s case, the tribunal found the sponsor’s Disability Living Allowance insufficient and dismissed the appeal.