Case No: C5/2007/2527
Neutral Citation Number: [2008] EWCA Civ 217
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: VA/38134/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 25th February 2008

Before:

LORD JUSTICE SEDLEY

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Between:

	VS (SRI LANKA)	Appellant
	
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ENTRY CLEARANCE OFFICER	
Respondent

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Mr D Bazini (instructed by Kingston and Richmond Law Centre) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Sedley:

1.	The appellant in this case is the elderly father of the sponsor.  He is seeking entry clearance in order to come and live here with his son.  The son is physically disabled and therefore unable to earn an income and is dependent upon disability benefits.  The father is represented today before me by Mr Bazini.  It is common ground that all requirements of the relevant rule, which is Rule 317, are met save arguably for paragraph (iii) which requires that the appellant be “financially wholly or mainly dependent” on the sponsor.  It is a interesting fact that even this point, which the immigration judge has determined as a matter of law against the appellant, was effectively conceded on a first-stage reconsideration before the AIT by the Home Office presenting officer; but the AIT on full reconsideration refused to accept the concession and upheld the immigration judge on it.  

2.	The point (and for reasons I am going to come to it is in my judgment the only point) arises in crystalline form from evidence accepted by the immigration judge as entirely truthful.  The sponsor is disabled, as I have said, and is reliant on state benefits.  His father, the appellant, who is now widowed, lives in Sri Lanka and is kept from destitution by £100 a month spent by the sponsor.  The sponsor is, however, able to send the money only because he is given that sum out of simple generosity by his friend, Mr Arunan, who has steady employment here with prospects of improvement.

3.	The immigration judge found that it was in these circumstances upon Mr Arunan and not upon the sponsor that the appellant was dependent.  The sponsor, he said, was “a mere conduit” of the money.  Senior Immigration Judge Batiste ordered reconsideration principally because he thought a different decision on this point was a real possibility, and it is clear from the AIT’s decision that the Home Office, as I have said, was disinclined to try to sustain the immigration judge’s reading of the rule.  The AIT’s decision, despite this, to uphold the immigration judge is founded on an AIT decision, AA (3rd party maintenance R297 (v)) Bangladesh [2005] UKAIT 00105, which is said to establish that “third party support is not permitted” and is based on an earlier AIT decision, MK (Somalia) [2007] UKAIT 00028.  That decision, however, which was to the effect that funds from the sponsor’s disabled living allowance did not count, has recently been overset by this court on the ground that in law the money was the sponsor’s to spend as she chose.

4.	The present case is not foursquare with MK (Somalia) but, without disrespect to Buxton LJ’s view on sight of the papers that the point is unarguable, it does seem to me that there is a respectable argument that one cannot properly differentiate between the sources of the sponsor’s available funds.  He might legitimately have made it his case that the money he sent his father was his and that it was Arunan’s generosity in paying him £100 a month that enabled him to send it.  It was because instead both he and Arunan treated the latter’s £100 as specifically earmarked for the appellant (in law and in reality, of course, a fictional earmarking) that he was bound to be a mere conduit of Arunan’s money.  One appreciates that to reset the line in such a position produces a different anomaly by requiring disapplication of Rule 317 where the benefactor provides the appellant with funds directly rather than through the sponsor.  But for the present that may not matter.  What may matter rather more is that in the case of MW (Liberia) [2007] EWCA Civ 1376 a division of this court presided over by Tuckey LJ held that in respect of an application under Rule 297 -- a different rule, differently configured in many respects -- the provision of third-party support did not count, and that a parent would merely be acting as a conduit between the donor and the child.

5.	The court in that case also held that Article 8 produced no different outcome.  A funding application, I am told, is pending to enable application to be made to the House of Lords for permission to appeal in MW (Liberia).  I take that fact into account, but in any event I would be disposed to let Mr Bazini argue the present case on the basis that it is distinguishable from MW (Liberia).  If in the event MW (Liberia) goes to the Lords then it seems to me this appeal should abide the outcome.  If it does not go to the Lords, there still seems to me to be an arguable margin of difference between that case and this.  

6.	By a late further submission Mr Bazini has sought to add to his argument a new one to the effect that Rule 317, if it operates as it is said to operate in the present case, violates the general duty under the Disability Discrimination Act 2005 for public authorities, including the Home Secretary, to eliminate discrimination.  The argument, as I understand it, is that the present sponsor is only prevented from having his own funds to remit to his father by his physical disability, and that to make him unable to bring his father over when if he were able-bodied he would be allowed to is disability discrimination.  It seems to me that this is a fundamentally flawed argument.  It is not the sponsor but his father who is the appellant.  The father has his own problems but it cannot be said and is not said that they trigger a Disability Discrimination Act right.  The son has a low income because of his disability; so might he have if he were able bodied but in low-paid work.  There is simply not the connexity between the elements which enables this argument to be got on to its feet.

7.	The final argument advanced in support of permission to appeal is based on Article 8.  This was rejected by the immigration judge on the legally incorrect ground that the case was not truly exceptional.  This was understandable in what was then taken to be the state of the law.  By the time the AIT reconsidered the case the House of Lords had decided Huang v SSHD [2007] UKHL 11 and proportionality had been restored as the sole test.  It is therefore alarming, if I may respectfully say, so to find in a reconsideration decision given by a tribunal chaired by the President, Hodge J, this sentence:

“Although the concept of a legal test of exceptionality has been rejected, the approach to Article 8 cases will be as before.”

8.	This determination, albeit signed only by the second member of the Tribunal, is dated 23 July 2007.  It is true that that was a week before this court handed down its decision in AG (Eritrea) [2007] EWCA Civ 801 but, as is made clear in that decision, it was already known that it was not to be business as usual since the decision of the House of Lords in Huang.  I mention this because it is not the only instance that this court has seen since July 2007 of immigration judges shrugging off recent authority on this issue in favour of a doctrine of business as usual.  It needs to be understood that the search for truly exceptional circumstances as a surrogate for a decision on proportionality under Article 8(2) is contrary to law.  This said, the present is in my view one of those cases referred to at paragraph 37 of AG (Eritrea) in which, accepting, as I am prepared to do, that the Tribunal has applied a test which is contrary to law, it is nevertheless clear that on a proper appraisal of proportionality the claim could not succeed under Article 8.  This is not a close family which has been recently parted by force of circumstance.  It is a family which has steadily drifted apart over the years.  The son has not seen the father for 12 years or more.  It is only since the father was widowed that the son has assumed responsibility for his upkeep.

9.	The reason the son now wants the father here is so that the father can give the son emotional and physical support.  While such a situation may well engage the state’s obligation to respect family life under Article 8(1) the interference constituted by the non-admission of the father is not dramatic and is readily justified by the proper application, if it is the proper application, of a rule which admits a dependent parent to enter the country on defined conditions none of which is, for reasons I have given, arguably itself in violation of the law, including the law of the Convention.  

10.	The question which I have held to be separately justiciable will constitute the sole ground of my grant of permission to appeal.  As I have indicated, I propose to reserve directions for the conduct of the appeal to myself.  I will give these in writing in conjunction with directions in other cases now pending which raise related issues.  For the moment I grant permission to appeal on the single ground that I have indicated.

Order: Application granted.