KS (India) & Anor v Entry Clearance Officer

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?

I put the question in the past tense because the rule has since been replaced by a points-based Youth Mobility Scheme.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.

In the Immigration Rules HC 395, rule 95 provided:

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.

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.

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.

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 in 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 fait 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.

Jamal Ahmed is a Bangladeshi national in his mid-twenties. His application for a working holiday visa was refused by the Dhaka entry clearance officer. The immigration judge, who had fuller evidence before him, accepted that there was a genuine offer of employment at a Bengali restaurant whose management appreciated the significance of the relevant restrictions; that since the appellant’s employer in Bangladesh was his father, his job as a computer operator would be open on his return; and that the sponsor, who was his uncle, was able to maintain and accommodate him for the duration of his stay here without charge. The uncle also undertook to provide financial assistance, evidently in the event that work did not materialise.

What caused the immigration judge, IJ Ferguson, nevertheless to dismiss the appeal was the decision of the AIT, to which I shall be coming, in TS (Working holidaymaker: no third party support) (India) [2008] UKAIT 00024. That decision was promulgated after the hearing of Mr Singh’s appeal but before its determination; but no further submissions were invited before promulgation.

In the light of TS the immigration judge concluded:

15.

Applying those principles to the facts of this case, I note that the appellant in this case does not purport to be self sufficient for his stay in the United Kingdom. It is accepted that he currently has available to him only about £1500 in savings. At least one third. of this would be spent on his airfare· but he says that he relies on his sponsor to provide even that. He proposes to work for about the minimum wage in a job which I was told few people wanted to do. This was necessary because did not speak English to a sufficient standard to have much choice in the type of job that he could obtain. Earning at the minimum wage would not enable him to save very much to spend on the cost of travel, accommodation and other tourist costs for all the travel that he proposes to do according to his itinerary.

16.

I note that his itinerary includes six months of “travelling across the United Kingdom to visit all such events relating to computer operator that will earn knowledge for me". The funds he proposes to bring with him (not more than £1000 even allowing for his fare costing just £500) added to what he could expect earn from part time work at the Raj Spice restaurant, would quickly be used up on accommodation and living expenses. As a general calculation, the appellant has shown only that he is able to earn approximately the minimum wage for no more than half the time he will be in the United Kingdom. His overall earnings for the proposed period of two years will therefore amount to half the minimum wage. This is not enough to maintain and accommodate himself for that length of time, even without the additional travel and sightseemg expenses that he proposes to incur. The additional money he already has in savings does not sufficiently meet the shortfall to enable him to show that he can maintain and accommodate himself.

17.

The model for the working holiday proposed by the appellant relies too heavily on the maintenance and accommodation of his sponsor for him to show that he would himself be able to fund the trip from his own resources. That is the requirement which the AIT have found must be applied under the Immigration Rules and I am bound to follow that.

18.

So although I accept that the appellant could be maintained and accommodated by the sponsor and that the job offer he had was a genuine offer of part time work, the appellant would not be able to maintain and accommodate himself for the proposed two year duration of the trip from the savings he has and the type of earnings he would receive from the employment that he has arranged. The appellant has therefore not shown that the decision of the entry clearance officer was not in accordance with the Immigration Rules.

Mr Singh sought but failed to secure a reconsideration. Application was then made to the Administrative Court pursuant to s.103A of the Nationality, Immigration and Asylum Act 2002, as amended, for an order for reconsideration. Collins J instead used the exceptional power contained in s.103C to refer the issue to this court. He gave these reasons:

There is nothing in Grounds II or III. The immigration judge did consider maintenance in the light of the guidance and concluded (as he was entitled to if third party provision is ignored) that there was insufficient: see Paragraph 12. I confess to some concern about the construction of 95(v) as set out in TS. The wording of the Rule is similar to that for family dependants as considered in Arman Ali [2000] INLR 89, albeit I recognise that Article 8 does not play a part in working holiday maker cases. There is a degree of artificiality, since a third party may provide the funds in advance to meet the two month guidance test and the ability to pay for a return fare. I recognise that the Court of Appeal has in MW approved observations of the A.I.T. that the Rules should specify the possibility of third party support and, if a particular Rule does not, third party support cannot be taken into account: see Paragraph 15. That is contrary to my approach in Arman Ali and was not necessary to the decision having regard to the wording of Rule 297(v). I think this issue needs to be considered by thE Court of Appeal in connection with a Rule which is neutral, as this one is: cf Rule 232(iv). 159A(vi) is interesting since accommodation for a domestic visitor in a private household will normally be provided by the employer, but the Rule is in the same terms as 95(v): cf 152(v). Maintenance will also depend on the pay to be provided by the employer but, if the approach approved in MW is applied, that cannot be taken into account: that is of course nonsense.

Since I think this issue is of great importance having regard to a degree of inconsistent decisions in the past and the need to consider the Rules as a whole, I will make the exceptional order permitted under 103C and refer the appeal to the Court of Appeal.

In Mr Ahmed’s case he wrote:

“I have already in another case indicated my view that TS may be wrongly decided. Since this appeal was dismissed largely because of TS, I think it needs reconsideration. Since I directed a case directly to the Court of appeal, I suggest this one awaits the decision. If the Court of appeal upholds TS, no doubt this one will be dismissed.”

In the event SIJ Moulden reconsidered Mr Ahmed’s appeal and, having found no material error of law in the immigration judge’s initial determination, dismissed it but gave permission to appeal to this court. The appeals have been listed for hearing together.

There is a contingent question about the ambit of the appeal in Mr Singh’s case. Collins J, as has been seen, took the view that the true construction of rule 95(v) was the only viable question. He considered that there was nothing in the second and third grounds advanced. These sought to attack the fact findings as irrational in view of the IJ’s acceptance that the appellant’s witnesses were credible, and to contend that there was inadequate consideration of whether the money the appellant had was enough to maintain him for the requisite two months. The judge said nothing about the fourth ground, which was that the immigration judge had misapprehended the evidence about the prospects of employment.

S.103C provides:

Appeal from Tribunal instead of reconsideration

(1)

On an application under section 103A in respect of an appeal the appropriate court, if it thinks the appeal raises a question of law of such importance that it should be decided by the appropriate appellate court, may refer the appeal to that court.

(2)

On a reference under subsection (1) the appropriate appellant court may –

(a)

affirm the Tribunal’s decision;

(b)

make any decision which the Tribunal could have made;

(c)

remit the case to the Tribunal;

(d)

affirm a direction under section 87;

(e)

vary a direction under section 87;

(f)

give a direction which the Tribunal could have given under section 87;

(g)

restore the application under section 103A to the appropriate court.

(3)

In this section –

‘the appropriate court’ has the same meaning as in section 103A, and ‘the appropriate appellate court’ has the same meaning as in section 103B.

(4)

A reference under subsection (1) to the Court of Session shall be to the Inner House.

The effect appears to be that an appeal referred to this court brings with it all the grounds advanced below. There is no filter mechanism at this level, and it would probably require an express referral of specified grounds if others were to be excluded. Collins J, while expressing a view, appears not to have done this.

In the event Mr Singh has not appeared (being abroad) or been represented before us, but Mr Ahmed’s counsel, Mr Mahmood, has argued the principal case for both appellants – that TS was wrongly decided and should not have been followed. He has also sought to contend, in the alternative, that if TS represents the law, the immigration judge ought on the evidence to have found that Mr Ahmed qualified.

It is convenient to deal with the latter submission first. The findings, summarised above, although certainly not beyond dispute, were in my judgment open to IJ Ferguson on the evidence which he set out and appraised, and were not undermined by other elements of evidence to which SIJ Moulden, on the first-stage reconsideration, referred. It is not necessary or appropriate to recanvass the evidence in detail to demonstrate, for the purposes of an appeal confined to issues of law, why this is so.

The single and critical question is therefore whether TS was correctly decided by the AIT. Whether it was depends in part on whether rule 95 bears a sufficient analogy with other immigration rules which have been construed by this court in the same sense as the AIT adopted in TS. It is useful to start with these before coming to TS itself. But even if there is no decisive analogy, the meaning of rule 95 remains to be decided.

The source of an entrant’s proposed maintenance was central to the decisions of this court in two recent cases, MW (Liberia) [EWCA Civ 1376 and AM (Ethiopia) [2008] EWCA Civ 1082.

MW (Liberia) concerned the provision of rule 297 that a child seeking to join a family member settled here must show that he or she “can and will be maintained adequately by the parent, parents or relative [he or she] is seeking to join without recourse to public funds”. The sponsor, who was the appellant’s mother, proposed to maintain the child with the help of contributions from three friends who belonged to the same church as her. Tuckey LJ held at §13:

I think what the rule says is clear: the child is required to be maintained by the parent or relative she is seeking to join without recourse to public funds. If she is to be maintained by anyone else the requirement is not met. Securing maintenance from some third party is not "maintenance by the parent". So if the third party financial support is going directly to the child it obviously does not count. But what if the support is being or is to be given by the third parties to the parent to enable the child to be maintained, as will usually be the case? Can it then be said that the parent is maintaining the child? I think the simple answer to this question is no. In reality it is the third parties who are doing so. The parent is unable to do so without recourse to public funds and is merely acting as a conduit between the donor and the child. This will be the case wherever the applicant is relying on support of the kind on offer in this case which was of voluntary and genuine gifts to the parent by a number of people. It is not possible to characterise monies received in this way as income or assets of the parent. Nor could it be because in a case such as this, if it was, it would have to be declared to the Benefits Agency. The risk if not the reality that it would not be declared would involve recourse to public funds.

The court approved the dictum of the AIT (per Hodge P) in AM (Ethiopia):

We are aware of the view, widely supported by those representing appellants, that because the rules are silent on whether third party support is permissible, it must necessarily be so. We take the opposite view. The issue of maintenance is of importance in many of the immigration rules. Had it been intended that third party support should satisfy a maintenance requirement we would expect the rules to say so and to set out the way in which such maintenance might satisfy the requirement.

The court also, however, drew a contrast between the rule as it then stood and its predecessor, which stipulated that the child “can and will be maintained and accommodated adequately without recourse to public funds”. The rule in this form, Tuckey LJ considered, permitted the maintenance requirement to be met from third party sources “because it did not say anything about who was to maintain the child”.

For the Home Secretary Mr Waite submits that rule 95 lies parallel with rule 297 in its recent form because it stipulates that the holidaymaker must be able to “maintain and accommodate himself”. For the appellants it is submitted that it parallels rule 297 in its earlier form, because the wording of rule 95(v) does not amount either grammatically or substantively to an equivalent limitation: you can perfectly well maintain yourself out of money or resources coming from others.

AM (Ethiopia, which was decided after Collins J had referred Kashmir Singh’s case to this court, concerned rules 281, 297 and 317. The first of these rules requires spouses or civil partners seeking entry with a view to settlement to show that “the parties will be able to maintain themselves and any dependants adequately without recourse to public funds”. The second was the rule with which MW (Liberia) was concerned. The third governs entry by dependent relatives and requires them to show that they “can and will be maintained adequately, together with any dependants, without recourse to public funds”. The sponsor of such a person may be asked, pursuant to rule 35, to give a written undertaking to be responsible for their maintenance so as to make the sponsor liable to repay any income support the entrant has in the event claimed.

It was held that none of the three rules permitted third party sources of support to be taken into account. In so deciding the court declined to distinguish between rule 297, which had been so construed in MW (Liberia), and the other two rules. Laws LJ said:

56.

Adopting this approach I have no doubt that Rules 281, 297 and 317 disallow reliance on third party support. First, they are all concerned, as I have shown, with persons seeking entry to the United Kingdom to join various classes of family members already settled here, or being admitted for settlement on the same occasion. The part played by the sponsor (or the parent in the case of Rule 297) is therefore of the first importance. As the Rule 6 definition shows, for the purposes of Rules 281 and 317 the sponsor is the family member whom the entrant is seeking to join, and the parent is plainly in the same position in Rule 297. It is of no significance (pace Mr O'Ryan's argument) that the word "sponsor" appears once only in this set of Rules: 281 and 317 refer in terms to a person or persons plainly within the definition. The involvement of the sponsor is integral to the scheme of the Rules. It reflects what the document from the Migration Strategic Directorate, albeit dealing with Rule 297, called the "intention and spirit" of the entry category addressed in each Rule. In my judgment Rules 281 (spouses) and 317 (parents, grandparents and other dependent relatives) contemplate, no less than does 297, that the entrant will live with the sponsor as or as part of a family unit. In Rule 6 "sponsor" is defined by reference to the relationship which the entrant bears to him or her: "spouse, fiancé, civil partner, proposed civil partner, unmarried partner, same-sex partner or dependent relative". The sponsor, or the sponsor and the entrant between them, is/are to be the source of the entrant's maintenance and support, both because such a requirement will tend to give concrete effect to the family unit in question (this was the reason given for the rule change to 297 by the Migration Strategic Directorate), and also, no doubt, for the reason given by Tuckey LJ at paragraph 16 in MW (Liberia): "[t]hird party arrangements of the kind in question in this case are necessarily more precarious and, as the Tribunal said in AA, more difficult to verify".

As to the arguably significant contrast between the old and new versions of rule 297(v), Laws LJ said this:

59.

Nor, as it seems to me, are the appellants assisted by the amendment of Rule 297(v). It is true that in MW (Liberia) Tuckey LJ expressed the view (paragraph 10) that the unamended version of Rule 297 would have allowed for third party support. I doubt, with respect, whether that had been the Secretary of State's intention in making the Rule. The Migration Strategic Directorate did not indicate that the purpose of the rule change was to introduce a prohibition of third party support; on the contrary, the document's text (which I will not repeat) tends rather to suggest that the amendment was made to clarify what was always intended to be the position.

He concluded:

61.

In my view, therefore, following MW (Liberia) and subject only to re-consideration in their Lordships' House, no case of substance can be made to the effect that third party support may qualify for the purposes of Rule 297(v). The appellants must therefore establish a distinction of principle between that Rule on the one hand and 281 and 317 on the other. In my judgment they cannot do so. It is not shown that the Secretary of State intended to treat one category of family entrant cases in a radically different manner from the others, and it is inherently unlikely that he proposed to do so. That conclusion is in my view not in the least undermined because (as I would for present purposes accept) Rule 281(iv) allows "the parties" to live in accommodation owned and thus provided by a third party.

For these reasons it is submitted that the AIT was right when, in TS, it held (as summarised in its headnote) that:

“A working holidaymaker must show that he has sufficient resources of his own (including those derived from work allowed by the scheme) to maintain and accommodate himself during his stay. The requirement in paragraph 95(v) is not met by the provision, or promised provision, of support by third parties.”

This holding applies equally to maintenance and to accommodation, as logically it must. It means, if it is correct, that a foreign national who wishes to come here on a working holiday cannot rely on accommodation provided by family or friends, any more than on meals and transport provided by them. He has to have the means to pay his own way in all these respects, even if it is plain that they are going to be provided for him. Mr Waite has not been able to explain what policy this enacts.

On the other hand, the AIT made these substantive points in favour of their construction. First, the rule for visitors (rule 41) is differently phrased: it requires the visitor to be maintained by resources which are “available to him” or by “relatives or friends”. This is distinctly not the case with rule 95(v). Secondly, the rule for students, again contrasting with rule 95(v), is that they must be “able to meet the costs” of study, maintenance and accommodation, without specifying how they are to do so. Thirdly, since a working holiday may last for up to two years, it is reasonable that the Home Office should be assured of the entrant’s self-sufficiency throughout that period, whether from extant funds or from assured and permitted employment. Fourthly (but to my mind more dubiously) the requirement of rule 88 that an au pair must be able to “maintain and accommodate himself [sic]” is met because an au pair’s maintenance and accommodation, being contractually provided, are her own. This, with respect, has a touch of casuistry about it. But if it is true of au pairs (who are a class of working holidaymaker) it is not easy to see why it should not be true of working holidaymakers generally.

Mr Waite founds upon the two decisions of this court as conclusive of the present issue. There is a solid difference, he submits, between promised resources and extant resources. If, from whatever source, they are the entrant’s own at the time of application, well and good; but a promise of them from others, however dependable, does not establish that he can “maintain and accommodate himself”. It establishes only that he will probably be fed and housed by others.

The appellants first of all adopt the equal and opposite pointers identified by Collins J in the rules. Rule 159 (vi), which governs admission as a domestic worker, is in substantially the same terms as rule 95(v). So is rule 152, which governs the entry of private servants in diplomatic households. I will return to the significance of these rules.

Rule 232 allows a foreign national to enter as a writer, composer or artist provided that for the past year he has “been able to maintain and accommodate himself and any dependants from his own resources without working except as a writer, composer or artist”. The words “from his own resources” do not appear in rule 95(v). The difference, the appellants submit, is telling and arguably critical: it would have been simple to include the same phrase in rule 95 if that were what was intended.

Mr Waite tells the court with candour that the Home Secretary does not know why “from his own resources” was included in rule 232(iii). It may simply be, he says, because the two rules were drafted at different times. But he submits that the words are surplusage: the rule would mean exactly the same if they were not there.

The appellants, while acknowledging that the Immigration Rules are not a statute and may lack homogeneity in drafting, argue nevertheless that the court will in principle lean against treating as surplusage words which have (at least in this context) the force of law and which are perfectly capable of being given meaning, as these are. They also submit that, irrespective of this, the use of the words illustrates how simple it would have been for the Home Office to use the same or similar words, which would have been by no means superfluous, in rule 95(v) had that been what was intended.

I am unable to accept Mr Waite’s contention that MW (Liberia) and AM (Ethiopia) determine the outcome of the present appeals. It is true that, if these decisions had gone the other way, Mr Waite’s task would have been well-nigh impossible; but the reasoning which took this court to the conclusion that support from persons other than the sponsor could not be relied on in family reunion cases depended on different wording and different policy objectives. In particular, the family reunion rules seek to guard against the risk that relatives admitted for settlement will become a charge on the state. By requiring a nominated sponsor with a proximate relationship to the entrant, and making that sponsor liable if the entrant becomes dependent on public funds, the rules seek to achieve an objective that has no equivalent in the working holidaymaker scheme because working holidaymakers are barred by s.115 of the Immigration and Asylum Act 1999 from claiming benefits in the first place.

What then is the intended effect of rule 95(v)? It does not say, as rule 41 says in relation to visitors, simply that the necessary resources must be “available” to the entrant. Nor, however, does it say, as rule 232 does in relation to writers, composers and artists, that the entrant must be able to provide for his own maintenance and accommodation “from his own resources”. But is that what it means? If it were, it would have to mean the same thing in rule 88 in relation to au pairs and in rules 152 and 159 in relation to domestic servants.

In my judgment it does not have that meaning in those rules. It is plain, if they are to have any meaning and effect, that the au pair’s or domestic worker’s or servant’s board and lodging will be provided by the employer and will not come from her own resources. If the AIT’s construction of the rule for au pairs is adopted (see above), no doubt, the resources become putatively or legally the worker’s. But this construction seems to me, with respect, entirely casuistic. In all three classes of case the food that is eaten, the roof that keeps the rain off and the bed that is slept in are the employer’s. Yet the au pair or domestic worker or private servant who benefits by these resources is plainly regarded under the rules as maintaining and accommodating herself. The difference, if there is one, is that she has a contractual right to them, whereas the working holidaymaker in these and most cases expects – even if with solid justification – to receive them gratuitously.

As to this, Mr Waite was asked in the course of argument what the situation would have been if, instead of undertaking to house and feed the appellants, the sister and uncle had given them each a sum of money and then taken it back at intervals as payment for bed and board. Provided the sum was adequate, Mr Waite conceded, this would pass muster under rule 95(v). He was right to accept this; but the situation it produces shows the artificiality of the Home Office’s position, especially since a token sum would do. Mr Waite was also asked whether it would make any difference if the ECO or immigration judge were satisfied that rent-free accommodation was guaranteed for the duration of the applicant’s stay. His answer that, by parity of reasoning, this would not get within rule 95(v) further illustrates the artificiality of the Home Office’s position.

In my judgment, rule 95(v), though opaquely phrased, makes sense only if it is understood as requiring the entrant to be able to pay his way, either out of his own extant funds or out of anticipated earnings, and to secure accommodation for himself. If the latter comes from the hospitality of family or friends, it is no less the working holidaymaker’s own accommodation than is the accommodation of an au pair or a domestic servant.

Such a reading of the rule, while departing from a literal but inexplicable reading, brings its meaning and effect into line with other similarly phrased rules and – perhaps more important – secures what is clearly the object of the sub-rule: to ensure in advance, so far as practicable, that young persons admitted as working holidaymakers will have spending money, bed and board for as long as they are lawfully here. Nothing is achieved in terms of these simple objectives by demanding that the accommodation be paid for. The only practical effect is to put a working holiday beyond the reach of otherwise eligible young people who cannot raise a sum of money that they are not going to need.

I would therefore allow these two appeals.

In these circumstances Mr Waite very fairly accepts that, in the light of the extant findings of fact, Mr Ahmed’s appeal succeeds without more, entitling him to admission under rule 95.

As to Mr Singh, it is submitted by Mr Waite that his appeal should be remitted to the AIT for a fresh determination in the light of this court’s judgment. I have set out earlier in this judgment the first part of §12 of IJ Borsada’s findings. This, however, was the preceding paragraph:

11.

With regard to the evidence given by the sponsor and the sponsor's father in law at the hearing: this was given in a clear and consistent manner and I strongly formed the view that they were telling me the truth. The evidence they provided was also supported by good documentary evidence supporting their claim to be in a position to accommodate the appellant and to facilitate his working holiday in other ways including taking him sight seeing. I fully accepted the submissions of the appellant's representative concerning the interview taking into account the further evidence given by the sponsor at the hearing about the sponsor's intentions. I was not satisfied that the ECO was right to reach an adverse conclusion on the appellant's credibility based on this interview alone and apart from the sponsor's own good view of appellant there good evidence provided concerning the appellant's family, economic and circumstances in India (evidence of the ownership of farm land) and this strongly suggested he would be motivated to return to India at the end of this visit. The appellant was a farmer and the farm would be being looked after in his absence. The appellant would also wish to return home to look after his parents and as the only son in his family this would be a strong cultural imperative. I was therefore satisfied that the appellant wished to come to the UK for a working holiday and that he did not intend to overstay.

Given these findings, it seems to me that the only outstanding issue in Mr Singh’s case is his ability to maintain himself by working. This was determined against him for want of proof, but in the context of a higher expectation of funding than was appropriate. A purported job offer has been faxed to this court, but we are in no position to evaluate it. In my view his case needs to be remitted for determination in the light of this court’s judgment, but without disturbing the findings in §11 of the immigration judge’s determination. If, of course, the Home Office is satisfied in the event that this requirement is met, a hearing will not be required.

I have had the advantage of reading Sedley LJ’s judgment is these two cases in draft. Unfortunately, I find myself unable to agree with his construction of the now replaced rule 95(v) of the Immigration Rules (IR 95v). I reach that conclusion with some regret, since I would have liked to have adopted his construction. It seems to me that Sedley LJ seeks to give the rule a purposive and humanitarian construction. In my judgment, however, and for reasons which I shall attempt to articulate, I do not think that the construction he places on the rule is permissible.

Although both cases are, of course, of importance to the individuals concerned, the fact remains – as Sedley LJ has pointed out - that the “working holiday maker” scheme (WHMS) no longer exists, and neither appellant would qualify under the new scheme, entitled the “youth mobility” scheme (YMS). YMS has been in place since 26 November 2008, and is restricted to citizens of Australia, Canada, Japan and New Zealand, as well as to British Overseas Citizens, British Overseas Territories Citizens and British Nationals (Overseas) (the specific nationalities identified). YMS, part of which we were shown, operates on a points system.

In addition to belonging to one of the specific nationalities identified, the applicant under YMS must be between 17 and 30 when he lodges his application for entry clearance, and has to have a minimum of 50 points in order to qualify. However, 30 points are scored if the applicant belongs to one of the specific nationalities identified: 10 points are scored if the applicant is over 18 and under 31 when he applies, and 10 points are scored if he has “£1,600 in available maintenance (funds)”.

None of this assists in the construction of the current rule, save to demonstrate that whereas WHMS was, as I understand it, open to all commonwealth citizens who otherwise qualified, YMS is effectively restricted to the “old” commonwealth countries and Japan.

Both cases in this court raise the same, extremely short point of statutory construction. Sedley LJ has helpfully set out the background, and the circumstances in which the cases reach this court, which I need not repeat. In summary, therefore, the position under IR 95 was that the requirements for leave to enter as a “working holidaymaker” included at (v) the requirement that the applicant “is able and intends to maintain and accommodate himself without recourse to public funds”.

In fact, a working holiday maker, as Sedley L.J. points out, is not entitled to make a claim for benefits. So the crucial phrase is “intends to maintain and accommodate himself”. In the AIT, this has consistently been held to mean that the applicant must not be dependent on third party support. The question for this court is whether or not that construction of the rule is correct.

It is not in dispute that a working holidaymaker under WHMS is able to accept free board and lodging if that is available to him. However, as the AIT put it in paragraph 6 of its judgment in Re MH (Working holidaymaker: intention to support) Bangladesh [2008] UKAIT 00039 (Re MH):

In Re MH, the AIT continued: -

In MH, the appellant was “unusually wealthy” and had established the ability to maintain and accommodate himself. He was, however, to receive free board and lodging with his sister in London throughout his stay. The ECO had refused his application on this basis, and the AIT allowed his appeal. He was plainly “able ….. to maintain and accommodate himself” notwithstanding the offer of free accommodation.

I have cited paragraph 7 of MH because it makes a cross reference to the decision of this court in MW (Liberia) v Secretary of State for the home Department [2007] EWCA Civ 1376 (MW), a case under rule 297(v) of HC 395 relating to the maintenance of a child. In MW, this court held that a child was not maintained by her parent or relative where the maintenance derived from funds given to the mother of the child by third parties. As Tuckey LJ put it in paragraph 7 of his judgment: -

Later in his judgment, Tuckey LJ referred to the “more precarious” nature of third party arrangement which, he also stated, were “more difficult to verify”. In the instant cases, whilst nobody doubts the good faith of those who have stated they will give free board and lodging to the appellants (I have in mind, in particular, JA’s uncles who is prepared to accommodate him free of charge) the simple fact remains that there is no sanction if the support does not materialise. A supporter may die, change his mind, become bankrupt, have unexpected but compelling alternative commitments, or simply fall out with the working holidaymaker – to take just those easy examples which spring to mind.

In the AIT, however, the leading case is undoubtedly TS (Working Holidaymaker: no third party support) [2008] UKAIT 00024 (Re TS) in which, stating the construction of the rule which is challenged in this court, the AIT stated in paragraph 11 of its judgment: -

Although the term “self-sufficient” does not appear in IR 95v, I am satisfied, speaking for myself, that this is what the words “is able to maintain and accommodate himself” mean. I do not derive any direct assistance from the other situations for which the Immigration Rules cater, such as au pairs, children, students, servants in diplomatic households, writers, composers and artists. None uses identical language to IR 95(v), although the common theme is that in each case, third party support is not permitted. I think there is some force, therefore in the submission made on behalf of the ECOs in the instant appeals, that this court should seek a construction of the rule which is consistent with other parts of the IR.

However, I prefer to rest my decision on the plain meaning of the words. In my judgment, the phrase “is able and intends to maintain and accommodate himself” can only mean that the applicant has to demonstrate the capacity to be self-sufficient. As the cases make clear, there is nothing to stop him obtaining free board and lodging from relative and friends, but the essential requirement remains. He must show that, whatever arrangements he makes with relative and friends, he is, nonetheless – and without that support - “able …. to maintain and accommodate himself”.

Neither applicant, in my judgment, is able to demonstrate self-sufficiency. The evidence in the case of JA was that his job offer as a part-time kitchen assistant in an Indian restaurant in the West Midland paid £6 per hour for a maximum of 20 hours per week. Under the scheme, he was only able to work for a maximum of 12 months. There is no evidence that he speaks English, and there was likewise no evidence that he was able to earn anything much above the minimum wage. On maximum earnings of £6,240 (£6 x 20 x 52) and savings of £1,500 (to take the maximum figure) JA plainly cannot demonstrate self-sufficiency, let alone the ability to travel, as his somewhat exiguous “working holiday plan” envisages. Similar considerations apply to KS, who did not appear, but on whose behalf we received a FAX identifying a job offer as a general hand in an entity called Vishkarma Brickwork Ltd in Hayes in Middlesex at an hourly rate of £6.75 to be reviewed in three months.

In my judgment, that is the end of the case. I take the point made by Mr Mahmood, for JA, that the scheme envisaged an age range of 17 to 30, and that it would be idle to expect 17 year olds to be self-sufficient. Such cases would, of course, have to be judged on their merits. JA is 24 and KS is 29.

I do not, however, take the view that my construction of the rule would have created a scheme only for the rich. The problem encountered by both JA and KS is that, as non-English speakers, they were only going to earn the minimum wage. Other working holiday makers, as it seems to me, with good English and different skills, are likely to earn more. Thus a working holidaymaker could well earn enough in one location; not only to be self-sufficient in that location, but also to earn enough to enable him then to move on to a different location, thus spending time in each which was in part work and part holiday.

In my judgment, paragraph 1.4 of the IDI guidance, on which Mr. Mahmood relies, that self-sufficiency could be demonstrated by “the means to support himself for at least the first two months after arrival or for at least one month if he has a job arranged in advance” has to be seen in a realistic context. What it plainly means, in my judgment, is that if you have a job “arranged in advance” you are unlikely to be paid until the end of your first month in employment; and if you do not have such a job, you have a month to find one, and a further month before you are paid. Neither proposition, seems to me inconsistent with the over-arching need to demonstrate self-sufficiency for the two year period.

In my judgment, therefore, both cases fail on the construction of the rule. I would refuse KS permission to appeal and dismiss JA’s appeal.

In paragraph 41 of his judgment, Sedley LJ expresses the view that “rule 95(v), though opaquely phrased, makes sense only if it is understood as requiring the entrant to be able to pay his way, either out of his own extant funds or out of anticipated earnings, and to secure accommodation for himself. If the latter comes from the hospitality of family or friends, it is no less the working holidaymaker's own accommodation than is the accommodation of an au pair or a domestic servant.” As I said at the outset of this judgment, I would have liked to have adopted this construction of IR 95(v). I cannot, however, do so. In my judgment, a working holiday maker who is not able to maintain and accommodate himself because he does not have the funds to do so, does not become so because he is offered free board and lodging by a relative. His financial position remains the same. He is, if anything, relieved of the obligation to maintain and accommodate himself by the generosity of his relatives. In my judgment, the rule makes sense if it is construed as the AIT has construed.

Finally, and whilst it is in no sense a determinative consideration, I remind myself that the decisions of the AIT on this point, which appear to have reflected the position throughout the lifetime of the rule, are those of a specialist tribunal. Whilst I would not hesitate to overrule such a tribunal on a point of statutory construction if I thought the Tribunal had reached the wrong conclusion, it seems to me that where (as in my judgment is the case here), the AIT has given the rule a legitimate construction, this court should not take a different view unless satisfied that the construction favoured by the AIT is wrong. For the reasons I have attempted to give, I cannot say that it is, and as a consequence, I would dismiss these appeals.

As described in the Border Agency’s entry clearance guidance, the purpose of the Working Holiday Makers (“WHM”) scheme is to allow young Commonwealth citizens to come to the United Kingdom for an extended holiday (up to 2 years). Their holiday may be funded by taking work provided this is incidental to the holiday. The requirements to be met by a person seeking leave to enter the United Kingdom on a working holiday maker include, under Immigration Rule 95, the requirement that he is aged between 17 and 30 inclusive. The requirements material to the present appeal are that he:

“(iv)

has the means to pay for his return or onward journey;

(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

. . .

(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

. . .”

In TS (working holiday maker: no third party support) India 2008 UK AIT 00024, the Tribunal, Mr CMG Ockelton, Deputy President, presiding, described the nature of the WHM scheme. I will cite from it at length because of its careful analysis of the scheme. The Tribunal contrasted the scheme with the regime for students (Immigration Rule 57). The Tribunal noted, at paragraph 10, that “the prospective student’s ability to take employment is heavily circumscribed”.

The Tribunal continued:

“11.

The situation of the prospective working holidaymaker is distinctly different because of the different purpose expressed for the prospective visit, namely to enjoy an extended holiday in the United Kingdom for up to two years. In such a case an applicant will have declared an intention either to defer the commencement of a career embarked upon in the country of origin, or even to interrupt it, in order to take a lengthy holiday in the United Kingdom. It is not unreasonable for the Immigration Rules to be framed in such a way as to seek to ensure that a working holidaymaker will be self sufficient, so that he can avoid becoming a burden on the state, or having to abandon the concept of employment taken only as incidental to the holiday, in favour of full time employment that is necessary for survival.

12.

We note that the terms of paragraph 95(v) do not carry the qualification of adequacy in respect of the maintenance and accommodation an applicant is required to be able to provide for himself. This too reflects the different circumstances of working holidaymakers from some other entrants to the UK. The accommodation that the stereotypical working holidaymaker (or 'backpacker') might consider acceptable, by way of a bed in a multi-occupant hostel, is not that which would be suitable for permanent settlement. Nor would it be suitable accommodation for occupation by a child. We note that each of the provisions in the Immigration Rules relating to children carries the qualification of adequacy; including the requirements that are to be found in paragraph 101 of the Immigration Rules to be satisfied in the event of entry clearance for the child of a working holidaymaker. There are sound policy reasons for that. Further, the imposition of a test that maintenance and accommodation be 'adequate' is undoubtedly appropriate in the context of an application for permanent settlement, as indeed the Immigration Rules also repeatedly reflect.

13.

It is perhaps also worth making reference to the Rules relating to 'au pairs' at paras 88ff of HC 395. Here there is again a requirement that the applicant be able to maintain and accommodate himself without recourse to public funds. It is the essence of the scheme, however, that the applicant's maintenance and accommodation will be provided by the family where the 'au pair' is placed. But it is also true that the maintenance and accommodation are part of an agreement and are provided in return for help in the home. So it is right again to see that the maintenance and accommodation are derived from the applicant's own resources, that is, the ability to receive them as part of a bargain for work that is being done under a specific type of arrangement. Similarly, the rules relating to admission for settlement must assume, where parties are required to show that they will maintain and accommodate themselves, that they will be able to do so by working.

. . .

18.

There must therefore be an individual consideration of an applicant's circumstances and intentions. The burden of proof is on the applicant, and because of the strict requirements of paragraph 95 it may be that he will not find it an easy one to discharge, even though he need do so only on the balance of probabilities. It may well be that Entry Clearance Officers will feel the need to make more use of interviews to test declarations of intention by applicants. Certainly we would expect a successful applicant to be able to give a credible reason for his decision to take an extended holiday, and if that reason be in part an intention to develop skills, to then be able both to identify the skills in question, how they might expect to be developed, and explain how he proposed to put those enhanced skills to future use. So far as finances are concerned, he will need to show that he will be able, within the employment restrictions imposed by the Rules, to be self-sufficient.”

In MH (working holiday maker: intention to support) Bangladesh 2008 UK AIT 00039, the Tribunal, Mr Ockelton, Deputy President presiding, considered the situation where there was evidence that, during the working holiday, accommodation and food would be provided free of charge by a relative. It should be read with the analysis in TS. The Tribunal stated, at paragraph 8:

“It is not sufficient for an applicant under para 95 merely to have funds. He must also show that those funds are available for his use during the holiday: that is to say that they are sufficiently liquid and disposable to secure all his needs on a working holiday lawfully conducted (and therefore including only incidental work); and that he intends to have them available to devote to his needs on the holiday. Provided that he can show that, we do not think that he has to show, by way of intention, that all his needs during the working holiday will be met from those funds. The intention has to be realistic: the funds must be genuinely available to him in the sense we have indicated and not for example committed or intended to be committed to something or somebody else. The intention must be genuine: if any proposed hospitality does not materialise, or ceases, he must intend to maintain and accommodate himself. But this word in the rule should not be interpreted to require more than that. The intention does not, in other words, need to be comprehensive.”

In JA the Asylum and Immigration Tribunal (AIT”) held on 11 April 2008:

“So although I accept that the appellant could be maintained and accommodated by the sponsor and that the job offer he had was a genuine offer of part time work, the appellant would not be able to maintain and accommodate himself for the proposed two year duration of the trip from the savings he has and the type of earnings he would receive from the employment that he has arranged. The appellant has therefore not shown that the decision of the entry clearance officer was not in accordance with the Immigration Rules”

On a stage 1 reconsideration, it was held on 26 November 2008 that the Tribunal had not erred in law. It was stated, at paragraph 15:

“In the absence of clear evidence as to the appellant’s net income from employment, I find that it was open to the judge to come to the conclusion that the appellant would not be able to maintain and accommodate himself from his own resources. It is clear that, in the light of TS, the judge excluded the accommodation and financial support to be provided by the sponsor without which the appellant would not have enough from his own resources. I do not consider that this appellant, who fails under the Immigration Rules, can succeed on the basis that he has a job offer and enough money to cover one month’s expenses in line with the Entry Clearance Guidance and paragraph 18.4 of the IDIs. His net income is unclear and, as the job does not provide free accommodation, he intends to rely on the sponsor for this.”

In KS, the Tribunal held, on 12 June 2008, at paragraph 12:

“With regard to finances: whilst 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 requirement of the Immigration Rules given the case of TS.”

In paragraphs 10 and 11 of his judgment, Sedley LJ has summarised the decision of this court in MW (Liberia) v Secretary of State for the Home Department [2007] EWCA Civ 1376, a case under rule 297(v) of the Immigration Rules. The rule requires that a child of parents or a relative present and settled in the UK seeking entry to the UK must show that he “can and will be maintained adequately by the parent, parents or relative [he] is seeking to join without recourse to public funds.

Tuckey LJ, with whom Lawrence Collins LJ and Rimer LJ agreed, stated, at paragraph 13:

“I think what the rule says is clear: the child is required to be maintained by the parent or relative she is seeking to join without recourse to public funds. If she is to be maintained by anyone else the requirement is not met. Securing maintenance from some third party is not "maintenance by the parent". So if the third party financial support is going directly to the child it obviously does not count. But what if the support is being or is to be given by the third parties to the parent to enable the child to be maintained, as will usually be the case? Can it then be said that the parent is maintaining the child? I think the simple answer to this question is no. In reality it is the third parties who are doing so. The parent is unable to do so without recourse to public funds and is merely acting as a conduit between the donor and the child. This will be the case wherever the applicant is relying on support of the kind on offer in this case which was of voluntary and genuine gifts to the parent by a number of people. It is not possible to characterise monies received in this way as income or assets of the parent. Nor could it be because in a case such as this, if it was, it would have to be declared to the Benefits Agency. The risk if not the reality that it would not be declared would involve recourse to public funds.”

MW was followed in AM (Ethiopia) & Ors v Entry Clearance Officer [2008] EWCA Civ 1082, which was concerned with rules 281, 297 and 317. The court held, unanimously on this point, that reliance on third party support was not permitted in the context of rule 281 where a requirement for entry was:

“(v)

The parties will be able to maintain themselves and any dependants adequately without recourse to public funds.”

Mr Abid Mahmood for JA, submitted that the present cases are distinguishable from settlement cases such as those considered in MW and AM. In considering the application under rule 95, the Tribunal should have taken into account its findings of fact that “the appellant could be maintained and accommodated by the sponsor”, who was his uncle, and that there was a genuine offer of part time work, at low pay.

The wording of the rule was to be distinguished, it was submitted, from that in rule 232 (writers, composers and artists) where the applicant must be able to maintain and accommodate himself and any dependants “from his own resources”, an expression absent from rule 95. Further, under rule 67 (students), the applicant must be “able to meet the costs of his course and accommodation and the maintenance of himself and any dependants without taking employment or engaging in a business or having recourse to public funds”. The expression “meet the costs” is different from that in rule 95.

Mr Mahmood further submitted that a scheme which permitted applicants to be as young as 17 could not have contemplated a requirement for reliance on an applicant’s own resources. (The present appellants are well into their twenties). Mr Mahmood accepted that an intention to work during a part of the working holiday must be established and that appears to me inevitably to follow from the concept of “working holiday maker” and the repeated references to “working” and to “employment” in rule 95.

Rule 95 is to be construed not only in the context of the rules as a whole but as seeking to implement the WHM scheme. That is a concept different from settlement but also different from entry as a student, or as an artist, or on au pair placement. It is for the Secretary of State, in rules he is required to lay for Parliament, to devise the arrangements on the basis of which the many categories of visitor enter the United Kingdom temporarily and the courts should seek to construe the rules so as to give effect to what is intended, subject of course to Convention considerations.

I have no difficulty in distinguishing the position of a working holiday maker from an au pair placement (rules 88 and 89). The provision for accommodation as a member of the host family is integral to an au pair arrangement, of ‘the essence’ as the Tribunal put it in TS.

The schemes for entry as a private servant in a diplomatic household (rule 152) and entry as a domestic worker in a private household (rule 159A) can be expected to be different in that, in each case, the provision of accommodation for the visitor by the employer is an integral part of the arrangement for the visit and evidence of its availability will be required. The relevant rules can be read on that assumption.

The WHM scheme is a scheme to allow young people to enter the United Kingdom, for a period of as long as 2 years, provided it involves a holiday, to which work is incidental, and provided an applicant is able and intends to maintain and accommodate himself without recourse to public funds. I consider that the analysis of the scheme in the passages that I have cited from the judgments of the Tribunal in TS and MH accurately reflect the intentions of the scheme and the rule drafted to regulate it.

The ability and intention of the applicant for entry “to maintain and accommodate himself” must be assessed by the Entry Clearance Officer, who must assess intention and ability over the 2 year period involved. The requirement for a long view is not defeated by the understandable emphasis in the IDI about maintenance during the initial 2 months period.

The applicant must be able to maintain and accommodate himself, just as the parties under rule 281 must “be able to maintain themselves”. The assessment is to be made on the basis of the applicant’s available funds, evidence of his prospects of work incidental to the holiday, and the ability, by a combination of the two, to maintain and accommodate himself over a 2 year period. The possibility, or even the likelihood, that help will be provided to the applicant need not defeat an application but does not relax the requirement to establish that the applicant intends and is able to maintain himself. Unlike the settlement cases where a sponsor is involved, no provision is made in rule 95 for recourse by the authorities to the person offering to provide the maintenance and accommodation.

That approach accords with the wording of the rule (able to maintain and accommodate himself) and reflects the purpose of the Commonwealth WHM scheme as analysed by a specialist Tribunal. What is intended is that the applicant should be able to maintain and accommodate himself while having, over a 2 year period, work experience and a holiday. It is not intended to cover applicants with inadequate funds and poor work prospects on the basis of prospects they have of free accommodation and maintenance.

I do not propose to comment on the points scheme which has replaced the WHM scheme under consideration in this appeal because the court did not request, and was not given, a full explanation of it. I would also reserve the position on the extent and effect of the concessions made by Mr Waite, who appeared for the Secretary of State, and to which Sedley LJ has referred.

On JA’s second ground of appeal, I agree with the conclusion of Sedley LJ, at paragraph 18. I would dismiss both appeals.