KS (India) v Entry Clearance Officer
| Jurisdiction | England & Wales |
| Judgment Date | 23 July 2009 |
| Neutral Citation | [2009] EWCA Civ 762 |
| Date | 23 July 2009 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Pill, Sedley and Wall LJJ
Representation
Mr Abid Mahmood and Mr Basharat Ali instructed by Messrs Bassi, for the Claimants;
Mr John-Paul Waite instructed by the Treasury Solicitor, for the Secretary of State.
Cases referred to:
AM (Ethiopia) and Others v Entry Clearance OfficerUNK[2008] EWCA Civ 1082; [2009] Imm AR 254
MH (Working holidaymaker: intention to support) Bangladesh[2008] UKAIT 00039
MW (Liberia) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 1376; [2008] Imm AR 323; [2008] INLR 328
TS (Working holidaymaker: no third party support) India[2008] UKAIT 00024; [2008] Imm AR 440
Legislation judicially considered:
Immigration Rules HC 395 (as amended), paragraphs 67, 88, 95(v), 152, 159, 232, 281, 297 & 317
Nationality, Immigration and Asylum Act 2002, section 103C
Immigration working holidaymakers paragraph 95(v) of the Immigration Rules no third party support self-sufficiency TS (Working holidaymaker: no third party support) India[2008] UKAIT 00024 approved
These appeals were conjoined because they raised the question as to the correct interpretation of paragraph 95(v) of the Immigration Rules HC 395 (as amended) which required a working holidaymaker to be able to maintain and accommodate himself without recourse to public funds.
The first Claimant, a citizen of India, and the second Claimant, a citizen of Bangladesh, applied for leave to enter the UK as working holidaymakers. Each Claimant had savings of 1000 and 1500 respectively and offers of employment paid at minimum wage. In addition, the relatives of each Claimant promised to provide accommodation and financial support to the Claimants for the duration of their stay. The applications were refused. The Asylum and Immigration Tribunal dismissed the appeals relying on TS (Working holidaymaker: no third party support) India[2008] UKAIT 00024 which held that third party support could not be taken into account in meeting the maintenance and accommodation requirements of the Immigration Rules. The Tribunal found in each case that the Claimants would not be able to maintain and accommodate themselves for the duration of their trips from their savings and projected minimum wage earnings.
Before the Court of Appeal the Claimants submitted that TS was wrongly decided and should not have been followed by the Tribunal. The issue before the Court was whether paragraph 95 of the Immigration Rules in force in 2007 permitted an intending working holidaymaker to rely on third party support in establishing his ability to accommodate himself.
Held, dismissing the appeals:
(1) (Sedley LJ dissenting) the plain meaning of the words in paragraph 95 that an applicant must be able to maintain and accommodate himself could only mean that the applicant had to demonstrate the capacity to be self-sufficient; there was nothing to stop him obtaining free board and lodging from relatives and friends, but the essential requirement remained; neither Claimant was able to demonstrate self-sufficiency; there was no evidence that they were able to earn anything much above minimum wage, and their maximum projected earnings together with their savings were insufficient to support them; a working holidaymaker who was not able to maintain and accommodate himself because he did not have the funds to do so did not become so because he was offered free board and lodging by a relative; his financial position remained the same; accordingly the Tribunal's construction of paragraph 95 was correct: TS approved; where the Tribunal had given the rule a legitimate construction, the Court should not take a different view unless satisfied that the construction favoured by the Tribunal was wrong (paras 60, 61, 66 and 67).
Lord Justice Sedley:
[1] These two appeals raise the same question: did paragraph 95 of the Immigration Rules in force in 2007 permit an intending working holidaymaker to rely on third party sources in establishing his ability to accommodate himself?
[2] I put the question in the past tense because the rule has since been replaced by a points-based Youth Mobility Scheme. Neither of the present appellants can take advantage of this, however, because it is expressly confined to nationals of Australia, Canada, Japan and New Zealand and certain categories of surrogate British citizen. We are told that a residue of cases from other countries awaits the outcome of these two appeals, but they, if they are allowed to come, will be the last working holidaymakers from such countries as India and Bangladesh.
[3] In the Immigration Rules HC 395, rule 95 provided:
Requirements for leave to enter as a working holidaymaker
95. The requirements to be met by a person seeking leave to enter the United Kingdom as a working holidaymaker are that he:
(i) is a national or citizen of a country listed in Appendix 3 of these Rules, or a British Overseas Citizen; a British Overseas Territories Citizen; or a British National (Overseas); and
(ii) is aged between 17 and 30 inclusive or was so aged at the date of his application for leave to enter; and
(iii) is unmarried or is married to a person who meets the requirements of this paragraph and the parties to the marriage intend to take a working holiday together; and
(iv) has the means to pay for his return or onward journey; and
(v) is able and intends to maintain and accommodate himself without recourse to public funds; and
(vi) is intending only to take employment incidental to a holiday, and not to engage in business, or to provide services as a professional sportsperson, and in any event not to work for more than 12 months during his stay; and
(vii) does not have dependent children any of whom are 5 years of age or over or who will reach 5 years of age before the applicant completes his working holiday; and
(viii) intends to leave the UK at the end of his working holiday: and
(ix) has not spent time in the United Kingdom on a previous working holidaymaker entry clearance; and
(x) holds a valid United Kingdom entry clearance for entry in this capacity.
[4] The appellant Kashmir Singh is an Indian national in his late twenties who comes from a family with its own farm. The sponsor for his proposed visit was his sister, who lives in this country with her husband and his family. The appellant had savings of 1000 to fund his visit. He proposed to live in his sister's home and to obtain work within the limits of his visa conditions.
[5] The entry clearance officer in New Delhi refused his application. It is unnecessary to examine the grounds that were given, save to say that they did their author little credit. On appeal they were rightly set aside by IJ Borsada, who substituted his own decision. This is the decision now under appeal.
[6] The immigration judge accepted that the sponsor and her father-in-law, both of whom gave oral evidence before him, could and would provide accommodation for the appellant and look after him for the duration of his stay. He also accepted that the appellant had an interest in returning to India at the end of his visit, both to manage the farm and to care for his parents. So the essentials of a bona fide working holiday were established.
[7] The difficulties that defeated the appeal were spelt out by the immigration judge in his final paragraph:
With regard to finances: clearly the appellant would have accommodation whilst in the UK and indeed it was very likely that his sponsors would meet quite a lot of his maintenance costs I was not able to take into account this offer of third party support in assessing the maintenance and accommodation requirements of the Immigration Rules given the case of TS. I did not doubt that the 1000 existed (bank account documentation was available) and I did not share the ECO's view that the expense was incommensurate with the family finance. The family income was far greater than the sum the appellant was proposing to take with him. I was however concerned that this was insufficient money to meet the maintenance and accommodation requirements. It was not clear how the outward air ticket was being paid for and this would of course reduce still further the amount of money available following the appellants arrival in the UK. Assuming that the air ticket was being funded separately, even on the appellant's representatives own figures the 1000 would only last 33 days which is considerably shorter than the two months required. I have no good reason to depart from the respondent's guidance which seemed an entirely fair assessment of the needs of a working holiday maker in the UK and I am therefore concerned that the appellant does not have sufficient money. I note the sponsor's evidence which was that her employers would consider the appellant for work at her place of employment. I am not satisfied that this was evidence of an actual job offer and there was nothing from the sponsor's employer to confirm that the appellant would definitely be offered such employment. As such I am not satisfied that I can take it into account when considering the requirements under the rules in relation to maintenance and accommodation. Had the appellant been applying to visit the UK in order to see his relatives then in my view the ECO could have looked more favourably on this application but this was not the stated intention and I am not satisfied that the appellant has met the maintenance and accommodation requirements of the rules in relation to working holiday makers in this particular instance. The appellant is not primarily coming to the UK to see family and therefore Article 8 of the ECHR is not engaged so there is no reason to allow this appeal under this heading either.
[8] Jamal Ahmed is a Bangladeshi national in his mid-twenties. His application for a working holiday visa was refused by the Dhaka entry clearance...
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