The King on the Application of Elisangela Batista Dias v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Newey,Lord Justice Stuart-Smith |
| Judgment Date | 11 July 2023 |
| Neutral Citation | [2023] EWCA Civ 913 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001818 |
[2023] EWCA Civ 913
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Newey
Lord Justice Stuart-Smith
Case No: CA-2022-001818
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
KING'S BENCH
ADMINISTRATIVE COURT (ASYLUM AND IMMIGRATION)
The Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jay Gajjar (instructed by Ashton Ross Limited) appeared on behalf of the Appellant
Mr William Irwin (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
The appellant is a Brazilian national aged thirty-nine. She is employed in Brazil by a Mr Rodrigo Leal da Silva, to whom I will refer simply as “Mr da Silva”, as his housekeeper. Mr da Silva has a business in the UK and apparently lives here part of the time.
In March 2022 Mr da Silva was due to have a knee operation in the UK, which would leave him partially incapacitated during the recovery period. By ill fortune, his partner had herself to be in Brazil for an operation of her own during that period, so he needed someone to look after him. He asked the appellant to come to the UK to perform that role. He did not propose to pay her any remuneration in the UK, since she would be receiving her ordinary salary from him in Brazil.
On 12 March 2022, which was a Saturday, the appellant and Mr da Silva arrived in the UK on a flight from Sao Paolo to Heathrow, which landed just after 2.00 pm. Brazilian nationals wishing to enter the UK as visitors for no longer than 180 days do not generally have to obtain entry clearance in advance, and will be granted a visa on entry, but the immigration officials who questioned the appellant on arrival took the view that she was not coming as a visitor but in order to work, that is by looking after Mr da Silva. Since she had not obtained the appropriate visa she was refused entry and removal directions were issued at 5.00 pm for her to be returned to Brazil on a flight due to leave at 8.25 pm that evening. The decision letter reads, so far as material:-
“You have asked for permission to enter the United Kingdom to work for Mr Rodrigo Leal da Silva as a housekeeper. You have stated that you are employed by Mr Leal Da Silva as a housekeeper in Brazil and are paid 1200.00 Reals.
You have asked for permission to enter the United Kingdom to take care of him and continue your duties as a housekeeper. In addition to this you have stated that Mr Leal Da Silva will pay you for you for your services whilst you are in the United Kingdom but under the Immigration Rules you are required to have an entry clearance/visa to enter the United Kingdom and you have no Entry Clearance/Visa.
You have not sought entry under any other provisions under the immigration rules.
I therefore refuse you permission to enter the United Kingdom under paragraph 9.14.1 of the Immigration Rules.”
I should perhaps identify the relevant provisions in slightly more detail. Appendix 5 to the Immigration Rules sets out the rules governing visitors to the UK. As far as material, they provide that:
(a) Visitors cannot work in the UK, unless expressly allowed under “Appendix Visitor: permitted activities”. Caring for an employer is not a permitted activity within that appendix.
(b) Visitors must be genuine visitors: see rule V4.2. Rule V4.2(d) provides that a genuine visitor must not undertake any of the prohibited activities set out in V4.4–4.6.
(c) Rule V4.4(a) provides that an applicant must not intend to work in the UK. The examples of work given in that sub-paragraph of the rule include the provision of services.
We were also referred to the appendix covering overseas domestic workers, which applies to, among other categories, “those providing personal care for the employer and their family”. Overseas domestic workers are required to obtain entry clearance in advance. There are various requirements for the grant of entry clearance on this basis, including to satisfy the Secretary of State that the employer intends to pay the applicant at least the national minimum wage throughout their employment in the UK.
Mr da Silva was dissatisfied with that decision. He urgently instructed a firm of solicitors called Ashton Ross Limited (“ARL”). Mr Jamali, a barrister employed by that firm, sent an email to what he believed was the correct Home Office address (in fact he sent it to three email addresses), containing representations to the effect that the appellant was entitled to leave to enter. There is a dispute as to whether any of the addresses was correct and thus as to whether the emails were delivered. That is a dispute which we do not have to resolve for the purposes of this appeal, but they were certainly not read at that stage. I need not give the details of what happened thereafter, but in due course Mr Jamali attempted to make an application to the out-of-hours judge, Saini J, for an interim injunction in support of a judicial review application to be filed on the Monday morning.
The judge's clerk made inquiries in the usual way with the relevant Home Office unit and was told that attempts were being made to take the appellant off the flight because of the threat of judicial review proceedings. In those circumstances the application was not determined by the judge. In the event, the relevant unit was unable to take the appellant off the plane, and she was returned to Brazil. There is a dispute of no real significance about exactly when the flight departed, but the appellant accepts that it was “pushed” at 8.26 pm. Saini J was informed of what had occurred and directed that if the appellant wanted to seek an order that the Secretary of State facilitate the appellant's return she should apply to the High Court on the Monday morning. She duly issued judicial review proceedings that day, and made an urgent interim application, but the application was dismissed by Mostyn J on the basis that no notice had been given to the Secretary of State.
The Secretary of State filed summary grounds of defence in the usual way. In response, and in the light of the changed circumstances, the appellant applied for permission to amend the claim form and grounds. Permission was granted by Wall J on 15 June 2022, and the Secretary of State duly filed amended summary grounds of defence.
Permission to apply for judicial review was refused on the papers by HH Judge Dight sitting as a High Court Judge on 12 July 2022. At an oral renewal hearing on 8 September Deputy Chamber President Tudur, sitting as a High Court Judge, again refused permission.
The appellant applied for permission to appeal to this court on five grounds. Asplin LJ granted permission to appeal as regards grounds 1, 2 and 5. The appeal came before us this morning. The appellant was represented by Mr Jay Gajjar of counsel, leading...
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