TS (Working holidaymaker: no third party support) India
| Jurisdiction | England & Wales |
| Judgment Date | 20 December 2007 |
| Date | 20 December 2007 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
C M G Ockelton, Deputy President, Holmes IJ and Thornton IJ
Representation
Ms Melanie Plimmer instructed by Parker Bird Gardner, for the Claimant;
Ms R Petterson, Home Office Presenting Officer, for the Secretary of State.
Cases referred to:
AA and Others (Sectors Based Work: general principles) Bangladesh[2006] UKAIT 00026
AG (Working holidaymaker: incidental) India[2007] UKAIT 00033
AM (3rd party support not permitted R281(v)) Ethiopia[2007] UKAIT 00058; [2007] Imm AR 627
MW (Liberia) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 1376; [2008] 1 WLR 1068
NS (Working holidaymaker; intention to work) India[2007] UKAIT 00090
Legislation judicially considered:
Immigration Rules HC 395 (as amended), paragraphs 41, 57, 88 and 95
Immigration working holidaymakers paragraph 95(v) of the Immigration Rules sufficient resources requirement not met by third party support
The Claimant, a citizen of India, applied for leave to enter the United Kingdom as a working holidaymaker for a period of two years. The Claimant had completed his education but had not yet established a career or acquired any significant assets. He declared an intention to take employment incidental to the extended holiday but stated that his cousin would fund his entire stay for two years and assist with the cost of his return journey. The Secretary of State for the Home Department refused the application on the ground, inter alia, that the Claimant had failed to provide a credible explanation of how he intended to support himself. The Claimant appealed.
An Immigration Judge dismissed the appeal because he was not satisfied that the Claimant had the means to pay for his return or onward journey or was able and intended to maintain and accommodate himself without recourse to public funds pursuant to paragraph 95(iv) and (v) of the Immigration Rules HC 395 (as amended).
On reconsideration the Claimant submitted first, that the Judge had erred in law in considering himself bound to apply AM (3rd party support not permitted R281(v)) Ethiopia[2007] UKAIT 00058 because the Claimant was unable to finance his visit from his own resources; secondly, that the finding that the Claimant did not have the means to pay for his onward or return journey was unsupported by the evidence and thirdly, that the Judge had no basis upon which to call into question the nature of the Claimant's declared intentions regarding employment.
Held, affirming the original determination dismissing the Claimant's appeal:
(1) it was not unreasonable for the Immigration Rules to be framed in such a way as to seek to ensure that a working holidaymaker would be self-sufficient, so that he could avoid becoming a burden on the state; mere silence in the Immigration Rules as to whether third party support was permissible could not be taken to mean that it was; had it been intended that third party support should satisfy a maintenance requirement it could be expected that the Immigration Rules would say so: MW (Liberia) v Secretary of State for the Home DepartmentUNK[2007] EWCA Civ 1376 applied; the express terms of paragraph 95(v) required a claimant to demonstrate at the very least the ability to be self-sufficient, throughout the duration of the proposed visit; a claimant would not make out the necessary requirements if he was constrained through his financial circumstances to rely, either in whole or in part, upon promises of financial support, whether to meet his maintenance, or his accommodation needs, and, whether they be made to him by family, or friends, or whether they be promises of money, or money's worth; he had to be able to show that he had sufficient from his own resources to fund the trip (paras 11, 1415);
(2) whilst a successful working holidaymaker was permitted to take employment, that employment had to be incidental to the holiday and the period for which the claimant proposed to take employment had to be a maximum of twelve months: AG (Working holidaymaker; incidental) India[2007] UKAIT 00033 applied; there had to be an individual consideration of a claimant's circumstances and intentions and the burden of proof was on the claimant: AA and Others (Sectors Based Work; general principles) Bangladesh[2006] UKAIT 00026 considered (paras 1618);
(3) denying a claimant under paragraph 41 the ability to take employment, or conversely requiring a claimant under paragraph 95 to have both the ability to be self-sufficient, and, to hold a genuine intention to be self-sufficient did not result in any breach of his Article 8 rights (para 19);
(4) the Claimant was not, on the evidence he presented, able to accommodate and maintain himself for the duration of the proposed visit, even from a combination of his existing resources and the additional funds he expected to earn during the twelve-month part-time employment; the Claimant had the necessary resources only because he had recourse to the funds and accommodation that were to be provided to him by his cousin; the Claimant had declared no intention to try to be self-sufficient, but in contrast had declared an intention to live with his cousin during the proposed visit, and to accept his financial support; the Claimant did not therefore meet the requirements of paragraph 95; the Judge had made no material error of law (paras 2223).
Immigration Judge Holmes:
[1] 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...
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