Upper Tribunal (Immigration and asylum chamber), 2010-07-08, [2010] UKUT 280 (IAC) (PS (working holidaymaker, maintenance, assessment))
| Jurisdiction | UK Non-devolved |
| Judge | Hon Mr Justice Ouseley, Mr H J E Latter |
| Status | Reported |
| Date | 08 July 2010 |
| Published date | 10 August 2010 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 13 May 2010 |
| Subject Matter | working holidaymaker, maintenance, assessment |
| Appeal Number | [2010] UKUT 280 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
PS (working holidaymaker – maintenance – assessment) India [2010] UKUT 280 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
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On 13 May 2010 |
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Before
MR JUSTICE OUSELEY
SENIOR IMMIGRATION JUDGE LATTER
Between
PS
Appellant
and
ENTRY CLEARANCE OFFICER (NEW DELHI)
Respondent
Representation:
For the Appellant: Mr A Mahmood, Counsel, instructed by UKIC Immigration Lawyers
For the Respondent: Ms J Isherwood, Home Office Presenting Officer
(1) There is no single, proper test to be applied when assessing the adequacy of maintenance in a working holidaymaker appeal.
(2) The onus is on the appellant to show that he can meet the requirements of para95(v) of HC395. It is for him to explain his plans and how he proposes to maintain and accommodate himself without recourse to public funds.
(3) Whether those proposals are practical can be assessed against any reliable evidence of the likely costs subject to ensuring that a true comparison can be made. However, any such evidence is a guide only and cannot be treated in itself as determinative or as displacing or putting a gloss on the wording of the rule itself.
DETERMINATION AND REASONS
1. This is an appeal by the appellant against the determination of Immigration Judge Lowe issued on 14 April 2009 dismissing his appeal against the respondent’s decision to refuse him entry clearance as a working holidaymaker. Reconsideration was ordered by the High Court and on 11 January 2010 the Asylum and Immigration Tribunal found that the judge had materially erred in law. The reconsideration now proceeds by virtue of transitional provisions as an appeal to the Upper Tribunal. The factual issue which remains unresolved between the parties is whether the appellant is able to meet the maintenance and accommodation requirements of para 95 of HC 395. A more general issue of principle has been raised, both by the Immigration Judge and by the Senior Immigration Judge at the first stage of the reconsideration, as to the proper test to be applied when making his assessment.
Background
2. The appellant is a citizen of India born on 15 April 1988 and he lives with his family in the village of Pandori Ran Singh in Amritsar. On 22 January 2008 he applied for entry clearance as a working holidaymaker. In his application he said that he assisted his father in the family agriculture business and the total family income after tax was Rs1,20,000. He intended to stay in the UK for two years for an extended holiday and would take work incidental to that holiday for less than twelve months. He set out his holiday plans and said that he would take £500 with him and would be maintained and accommodated by his brother-in-law, the sponsor.
3. However, the respondent was not satisfied that the appellant had shown that he could meet all the requirements of para 95 for the following reasons:
“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 UK at the end of your working holiday and that you will not take up permanent work.
You state that you are currently working, assisting your father in your family’s agricultural business since August 2006. Your presence here is clearly not essential given that you are able to travel to the UK for an up to two year working holiday.
Because of this I am not satisfied that you are genuinely seeking entry to the UK as a working holidaymaker, that you plan to leave the UK at the end of your working holiday or that you plan to do only temporary work which is incidental to a holiday (paragraph 95(vi)(viii) of HC 395).
You state that you have £500 (about Rs40,000) available for your trip. You have not provided satisfactory evidence that such funds will actually be available to you or that it is credible for your family to deplete their savings to fund an extended holiday by you. You have not explained or shown that it is realistic for you to spend such funds on a working holiday. The costs involved in spending two years in the United Kingdom on a two year working holiday will be considerable. Taking into account your circumstances and experience in India, I am not satisfied that your earning potential in the UK would be sufficient to enable you to support yourself for two years if you were not to take employment that was only incidental to a holiday and for not more than twelve months. You have not provided satisfactory evidence as to how you will be able to support yourself during this period. I am not satisfied, on the balance of probabilities, that you will be able to maintain and accommodate yourself in the UK without recourse to public funds or without taking employment other than that which is incidental to a holiday (paragraph 95(v)(vi) of HC 395).
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 (paragraph 95(viii) of HC 395).
I therefore refuse your application.”
4. At the hearing before the immigration judge the sponsor gave oral evidence. He confirmed that he had offered the appellant hospitality for an initial week or so and also whenever he returned to the West Midlands during his holiday. He said that this was optional as the appellant had underlined that he wished to be self-sufficient. He lived with his parents and elder brother and helped his father on the farm which would continue to be run by the appellant’s father who could hire labourers. As the appellant worked for his father, he took no wages and so in return his father had given him funds for the trip. The sponsor had also made him a gift of £1,000. He said that the appellant’s family had earned a good living from the farm for a long time and the value of their land was increasing so there was no question that the expenditure on the trip would affect their overall financial position. The appellant would have about £2,800 to spend in the UK and would do no more than twelve months’ incidental unskilled work. The sponsor said that he was a transport driver making deliveries to large construction companies. He had made enquiries about labouring jobs for the appellant and had been told that there were always concrete laying jobs going at the minimum wage. The appellant would be able to improve his English. He could work for maybe three days and then go sightseeing for the other four days in a week. He would take him to see local sights but the appellant had also mentioned living in London and Glasgow.
The Findings of the Immigration Judge
5. The judge dealt with the points in the respondent’s decision in turn. She commented that the refusal appeared to doubt the appellant’s employment status in India because he could be released from the family farm for up to two years as he was “not essential” thus adding to the respondent’s suspicions about the appellant’s personal and financial circumstances and whether he intended to work in the UK in breach of the scheme. She said that the scheme was a “gap year type of opportunity for those who had yet to establish themselves in their home country” and that there was no requirement that an appellant had to have been working in his home country, have a job to return to or even have settled plans for the future. She found that the respondent had made a mistake in his assertion that the appellant had initial funds of only £500 accepting from the evidence before her that he had about £2,800 in funds under his control derived from gifts. She accepted that he intended to work as required by the case of NS (Working holidaymaker; intention to work) India [2007] UKAIT 00090) [2007] UKAIT 00090 and that his sponsors had modified their offer of hospitality from two years to an initial period in the UK followed by ad hoc accommodation. She found that the appellant appeared to be aiming for realistic work such as labouring where the sponsor had been making enquiries. There was no reason to suppose that a 20 year old man, physically fit from working on a farm and used to hard manual work would not be able to get this type of job.
6. At the hearing the appellant’s representative produced a list of places which could be visited for free in the London area but the judge that she did not attach much weight to this as it appeared to be post-refusal and contained places which did not have any obvious attraction to a working holidaymaker like the appellant. Rather more relevant evidence was produced about the cost of hostel and dormitory accommodation to support an argument that realistically the appellant need only pay about £5 per night to accommodate himself. It was argued on behalf of the appellant that the income support rates provided an appropriate benchmark for the assessment of whether he could maintain himself.
7. The judge considered the determination in TS (Working Holidaymakers: no third party support) India) [2008] UKAIT 00024 where the Tribunal had held...
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