9.3.2.2 Disabled sponsor
When
MK (Somalia) v Entry Clearance Officer was heard in the Court of Appeal the outcome was different (
[2007] EWCA Civ 1521). The Court of Appeal held that the appellant could rely on disability living allowance paid to his spouse for the purpose of establishing that she would be adequately
maintained without recourse to
public funds. The sponsor proposed to use her DLA to support her husband to be her carer. This was a way of meeting her needs by use of the DLA, and a matter of her choice. This is the first Court of Appeal authority on this point, and changes the direction of case law on the capacity of disabled sponsors to support their spouse.
In addition to disability living allowance the sponsor received an enhanced level of
income support. This, by agreement of the parties, was incorporated into the calculation of the figure for adequate maintenance.
NM (disability discrimination) Iraq [2008] UKAIT 00026 was another case in which the sponsor was reliant on DLA. The decision did not refer to MK (Somalia), but it appears to be distinguishable on its facts in that in NM the sponsor seemed to be spending all his DLA. The tribunal held it was not discriminatory on grounds of disability to refuse entry clearance to his spouse, though the argument under the Disability Discrimination Act was not fully explored. Note that here the sponsor did not propose to support his spouse financially as his carer, but the tribunal noted it would have been open to her to support herself by finding employment.
AM (Ethiopia), SA (Somalia), MB (Pakistan), VS (Sri Lanka) and MI (Somalia) were joined in the Court of Appeal on the question of third party support (see below). In the course of the judgment, some doubt was cast on reliance on income support by disabled sponsors, but the effect of the case is not altogether clear.
In AM (Somalia) v ECO
[2009] EWCA Civ 634 the Court of Appeal held that the application of the rule prohibiting reliance on
public funds to disabled sponsors was not unlawful discrimination under Article 14 ECHR.
9.3.3.3 Third party support
The question of whether third party support is permitted for spouses and adult relatives has been addressed for the first time by the Court of Appeal in
AM (Ethiopia), SA (Somalia), MB (Pakistan), VS (Sri Lanka), MI (Somalia) and another v Entry Clearance Officer [2008] EWCA Civ 1082. The court decided that third party support was not permissible for these groups, and confirmed it was not available for children, as held in
MW (Liberia) [2007] EWCA Civ 1376. The appellants’ appeal was heard by the Supreme Court during the week of the 9th November 2009.
Judgment should therefore be given shortly before Christmas or early in the New Year on the issues of sponsors relying upon third party support, and disability discrimination where a sponsor is less able to work through disability.
In
AB (Third-party provision of accommodation) v ECO Islamabad [2008] UKAIT 00018 the tribunal held that accommodation could be provided by a third party. Paragraph 281(iv) of the
immigration rules requires only that 'there will be' accommodation for spouses. It was unrealistic to expect a young couple always to finance this for themselves:
Access to accommodation in the United Kingdom is, as is well known, an expensive matter… It is part of the common experience of mankind that children, even adult children, continue to live with their parents or sometimes other relatives. (para 9)
TS (working holidaymaker; no third party support) India [2008] UKAIT 00024 is a useful decision to read on third party support as it explores the different ways in which maintenance is treated in different immigration rules. It predates AM in the Court of Appeal but does not conflict with it.
