AM (Somalia) v Entry Clearance Officer; [2009] EWCA Civ 634; [2009] WLR (D) 226

IMMIGRATION — Immigration control — Requirement of self-sufficiency — Disability discrimination — Leave to enter and remain in UK with British spouse — Spouse sponsoring application disabled and living on disability living allowance — Leave refused on basis applicant and spouse unable to live without recourse to public fund — Whether requirement of self-sufficiency discriminating against disabled — Whether such discrimination disproportionate — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 8, 14 — Immigration Rules (HC 395), para 281(v)

AM (Somalia) v Entry Clearance Officer

[2009] EWCA Civ 634; [2009] WLR (D) 226

CA: Mummery, Maurice Kay, Elias LJJ: 1 July 2009

The requirement under the Immigration Rules for a disabled British citizen living in the United Kingdom on disability living allowance who was sponsoring her foreign husband to settle in UK to prove that they would be able to maintain themselves without recourse to public funds did not amount to disporportionate discrimination against disabled sponsors under art 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Court of Appeal so held in dismissing the appeal of the applicant, Abdi-Malik Ahmed Muhumed, from the decision of the Immigration Appeal Tribunal on 10 January 2008 affirming the refusal of the entry clearance officer to grant him leave to enter and live in the United Kingdom with his wife as a family.

On 28 January 2007 the applicant applied to the entry clearance officer at Addis Ababa (there being no such facility in Somalia) for settlement in the United Kingdom as the spouse of the sponsor, who was a British Citizen living on disability living allowance. The application was refused and he appealed to the Asylum and Immigration Tribunal. The appeal was dismissed on the ground that the applicant had not satisfied the requirement in para 281(v) of the Immigration Rules that “the parties will be able to maintain themselves ... adequately without recourse to public funds”. The applicant contended that to apply para 281(v) to him and his wife as his sponsor would amount to unlawful discrimination, contrary to art 14 taken together with art 8 of the Human Rights Convention.

MAURICE KAY LJ said that although there was no Strasbourg case on the point, disability discrimination might fall within the “suspect” group of grounds for discrimination (such as race, sex, illegitimate birth, nationality, sexual orientation and the status of being adopted) which required particularly weighty reasons for justification because of its recognition not only in UK domestic law but also in numerous international instruments including the United Nation Declaration of the Rights of Disabled Persons 1975, Vienna Declaration and Programme of Action of the World Conference on Human Rights 1993, the Standard Rules on the Equalization of Opportunities for Persons with Disabilities adopted by the UN General Assembly in 1993, the Employment Equality Directive 2000/78/EC, the EU Charter on Fundamental Rights and the UN Convention on the Rights of Persons with Disabilities 2007. It might well be that where a state treated a disabled person differently by reason of his disability — in domestic terms, a case of direct discrimination — it might be necessary for any justification in relation to art 14 to be supported by particularly weighty reasons. However, there was no Strasbourg authority which had applied that approach to justification of the equal application of a uniform rule or where an individual was contending for more favourable treatment. In his Lordship’s judgment, it would not be appropriate for the court to initiate such an approach.

It was common ground that there was nothing disproportionate in a general rule or policy which made self-sufficiency a requirement of entry. The first question was whether it was disproportionate not to exclude the disabled from that requirement. In His Lordship’s judgment, it was not. Unlike the categories of “suspect” grounds referred to above, disability was a relative concept. It might be severe or moderate, permanent or temporary. It affected the affluent as well as the indigent. It might or might not affect earning capacity. At some point the sponsor had been offered a job with a building society but she had not taken it up because of the condition of her back. By the time of the entry clearance application, she was receiving income support and disability living allowance. The latter was a benefit for which there might be entitlement whether or not the disabled person was in work. However, the sponsor had been able to travel to Somaliland for a month in 2004 and 2006 and to Ethiopia for a month in 2005. There was no challenge to the finding of fact that “there are certainly no insurmountable obstacles to the parties enjoying their family life in Somaliland.” There would be disabled sponsors who were far more and far less disabled than the sponsor in this case. All that convinced his Lordship that it was reasonable and proportionate to have a criterion of self-sufficiency without a general exemption for the disabled. It would produce cases of hardship but that in itself did not render it disproportionate, particularly where provision was made for exceptional compassionate circumstances.

ELLIAS LJ gave concurring judgment and MUMMERY LJ agreed with both judgments.

Appearances: Michael Fordham QC and Joanna Stevens (instructed by Law for All) for the applicant; Lisa Giovannetti and Jonathan Hall (instructed by Treasury Solicitor) for the respondent.

Reported by: Ken Mydeen, barrister