TS (Working Holidaymaker: no third party support)
| Jurisdiction | England & Wales |
| Judge | Immigration Judge Holmes |
| Judgment Date | 20 December 2007 |
| Neutral Citation | [2008] UKAIT 24 |
| Court | Asylum and Immigration Tribunal |
| Date | 20 December 2007 |
[2008] UKAIT 24
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Immigration Judge Holmes
Immigration Judge Thornton
For the Appellant: Ms M Plimmer, instructed by Parker Bird Gardner
For the Respondent: Ms R Petterson, Home Office Presenting Officer
TS (Working Holidaymaker: no third party support) India
A working holidaymaker must show that he has sufficient resources of his own (including those derived from work as allowed by the scheme) to maintain and accommodate himself during his stay. The requirement in para 95(v) is not met by the provision, or promised provision, of support by third parties.
The appellant is a citizen of India who appealed against a decision by the respondent of 6 February 2007 to refuse his application for leave to enter the United Kingdom as a working holidaymaker for a period of two years, pursuant to para 95 of the Immigration Rules. The material part of the grounds of the refusal was as follows:
“Although I accept that your age makes you eligible to apply for a working holiday visa, you must also show me that you will leave the United Kingdom at the end of your working holiday and that you will not take up permanent work. You indicate that you completed a hotel management course in September 2006 and that you are presently awaiting results. You explain that you have been helping your father on his family farm since then. You have failed to provide any credible explanation as to why you now seek to go on a holiday for two years. This is particularly relevant, as you have also not explained; how you will spend your leisure time in the UK; or how you will support yourself when the money you plan to take with you has run out. Because of these things, I am not satisfied that you plan to leave the UK at the end of your working holiday or that you plan to only do temporary work.
To go on a working holiday to the UK, you must be able to support yourself without taking up full time work for the main part of your time in the UK, or using public funds. You indicate that a cousin in the UK will fund your entire two year stay. You have not been able to provide any indication as to how much this will cost or any credible explanation as to why your cousin is to fund your entire stay for two years when he has a family of four to support, or provide any details of his financial commitment. Furthermore I note that your family circumstances in India are modest, that your father farms 7 acres land and supports a family of four. You have not explained or show that it is realistic for you to spend your sponsor's savings on a working holiday. Because of this, I am not satisfied that you want to enter the UK for a working holiday as you have claimed, or that you plan to leave the UK at the end of your stay.
The Lonely Planet Guide 2006 for the UK says that people visiting London will need at least £40 a day for the cheapest accommodation, travel and food. It goes on to say that even fairly cheap sightseeing or nightlife can easily add another £20 to this. Outside London, you will still need at least £30 a day if you have your own transport (which you say you do not) and cook your own meals. However the Guide says that if you stay in bed and breakfast accommodation eat one sit down meal a day and do not try to save money on entry fees you will need about £60 a day. You have not provided any credible explanation as to how you will be able to support yourself without taking up full time work or using public funds.
When I asked you what you plan to do after your working holiday ends, you did not give a clear explanation of your plans. Although I accept that you may not have firm plans for the future, you must show that you plan to leave the UK at the end of your working holiday. Because you have not shown me any realistic future plans, I am not satisfied that you plan to leave the UK at the end of your stay.
The appeal was heard by Immigration Judge T Jones on 25 June 2007. The appeal was dismissed because the Immigration Judge was not satisfied that at the date of the respondent's decision (a) pursuant to paragraph 95(iv) of the Statement of Changes in Immigration Rules, HC 395 the appellant had the means to pay for his return or onward journey, or, (b) pursuant to paragraph 95(v) the appellant was able and intended to maintain and accommodate himself without recourse to public funds.
On 7 August 2007 Senior Immigration Judge Chalkley ordered reconsideration on the basis that it was arguable Immigration Judge T Jones should not have considered himself bound to apply AM (Third Party support not permitted Rule 281(v)) Ethiopia [2007] UKIAT 58 and thus dismiss the appeal, because the appellant was unable to finance his proposed visit from his own financial resources.
The factual background to the substantive application is not unusual because of the common characteristics that will be shared by those who meet the requirements of paragraph 95(ii) and 95(iii), which limit the pool of applicants to those in the specific age range of 17–30, and to those who are neither married, nor in a civil partnership, or, who are intending to take their working holiday with their partner. This appellant is a young single man who says that he has completed his education, but has not yet either established a career, or acquired any significant assets, and has as yet no dependants. He declared an intention to visit the United Kingdom to take an extended holiday, and during the course of that visit to take employment that would be incidental to that holiday. He said that in the course of his visit he would stay with members of his extended family, who are all legitimately resident in the United Kingdom.
Indeed the only unusual feature of the evidence in this case is the wealth of the appellant's cousin. Evidence was produced to the Immigration Judge to show that the cousin had a salary in the financial year ending 5 April 2007 of £158,229, and had at the date of decision savings in the form of ISAs, Unit Trusts, and PEPs amounting to some £150,000 in total. This financial evidence was not the subject of challenge before the Immigration Judge, and the respondent made a relevant concession in the course of the hearing that was recorded at paragraph 3 of the determination as follows:
“[the Respondent] made it clear that there was no issue as to the Sponsor's capacity to maintain and accommodate the appellant, or assist the appellant with the cost of his return or onward journey”.
The reasons for the Immigration Judge's decision were set out at paragraphs 10 – 12 of the determination as follows;
“10. On the totality of the evidence I find that the appellant has not discharged the relevant burden and standard of proof placed upon him in the proceedings. I find for the respondent.
11. I make such finding because against the appropriate standard, I find that I am bound by AM and I note the reference made to paragraph 22 of AM in relation to the appellant being responsible for the costs of his own maintenance; Mr Addy in his skeleton argument rightly points to many working holiday makers not having sponsors in any event. I have evidence before me of a job offer; which I accept is genuine; but if the appellant were to work 5 days every week as suggested in submissions, this surely raises the issue as to whether the appellant is intending only to take employment incidental to a holiday. I find that the appellant therein, as was submitted, falls foul of paragraph 95(vi).
12. In relation to the costs of the return or onward journey; again there is little evidence, as to what if any of the joint savings the appellant has are available to him in real terms. The wording of paragraph 95 I find is such that the appellant must show he has the means to pay for the same; I uphold Mr Addy's submission therein. I find against the appropriate standard, there is no evidence that the appellant has the means to pay the costs of the ticket required. I do not doubt the Sponsor would advance him the costs of the same even as a loan that might never be...
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