UK: Third Party Support; Interpretation Of Huang

Last Updated: 19 July 2007

Article by Lee Jackson, Barrister, Mitre House Chambers.

Originally published by Gherson and Company on

The Asylum and Immigration Tribunal (AIT) has decided in AM (3rd party support not permitted R281 (v)) Ethiopia [2007] UKAIT 00058 that applicants for entry clearance (a visa) cannot rely upon third party support to satisfy the maintenance requirements of the Immigration Rules unless the Rules expressly state that they may do so. The AIT also considered the House of Lords’ judgment on Article 8 of the European Convention on Human Rights (ECHR), which protects the right to private and family life, in Huang and Kashmiri and concluded that it made no difference to the outcome of any human rights claims based upon an alleged breach of the right to respect for family and private life.

Third Party Support

‘Third party support’ is the expression used to describe the situation where the sponsor and the applicant may not have sufficient means to maintain themselves adequately without recourse to public funds (State benefits provided to people in need), but a third party (usually a relative) is prepared to provide sufficient additional financial support to enable them to do so.

The issue of whether third party support can be taken into account in deciding whether an applicant satisfies the maintenance requirements of the Immigration Rules is a long-running one. It was thought that the matter had been resolved by the decision in Arman Ali in 1999, in which the High Court found that the Immigration Rules would not comply with Article 8 of the European Convention on Human Rights, which protects the right to respect for family and private life, if they were interpreted to exclude a family member from the United Kingdom in circumstances where long-term third party support was available and where their admission would not affect the economic well-being of the UK because there would be no recourse to public funds or any other detriment.

The Home Office did not appeal the decision in Arman Ali. However, it appeared to signal its disagreement with the judgment by almost immediately publishing new policy instructions indicating that spouses were required to support themselves from their own resources, and by changing the Rules relating to the admission of children, restricting their support to the parent(s) or relative sponsoring the child.

The Home Office changes gave rise to considerable confusion. Notwithstanding this, many immigration judges continued to apply Arman Ali by taking account of third party support in determining entry clearance applications. The President of the AIT has recently launched an attack on this approach.

In AA (3rd party maintenance R297 (v)) Bangladesh [2005] UKAIT 00105, a case involving a child applicant, the AIT pointed to the fact that the Immigration Rules had changed since Arman Ali was decided, and that there was now an express provision restricting provision of financial support to the parent. Leaving aside the question of whether the outcome might have breached the applicant’s right to family life, this decision was relatively uncontroversial as the Immigration Rules did appear to have been changed to achieve that purpose.

The decision in AM is much more contentious because the Immigration Rules relating to spouses under Rule 281 utilise the same words as they did at the time Arman Ali was decided. Despite this, the AIT stated that Arman Ali is no longer to be followed on the basis that the Human Rights Act was not in force at the time it was decided. However, the High Court in Arman Ali was interpreting Article 8 of the European Convention, not domestic legislation, and some commentators may take the view that the AIT’s distinction is an arbitrary one. The AIT was dismissive of the role of human rights considerations in interpretation of the Immigration Rules, stating simply that unless it was established that the Rule was inconsistent with a Convention right, then human rights would not come into play.

The AIT substituted its own interpretation of the Immigration Rules for that applied in Arman Ali and concluded that the requirement that the parties will be able to support themselves and any dependants adequately without recourse to public funds was to be interpreted in accordance with its natural meaning. It considered that the natural meaning of "the parties" was restricted to the individuals themselves (applicant and sponsor) and did not permit third party support. The AIT approved the decision in MK (Adequacy of maintenance – disabled sponsor) Somalia [2007] UKAIT 00028 on whether disability benefits could be used to prove adequate financial support.

The AIT also considered whether the refusal of entry clearance ( a visa) would breach Article 8 of the European Convention on Human Rights (ECHR). It referred to the

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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