TS v The Secretary of State for the Home Department

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 called for repayment, if needs be but there was no evidence of this before me. The submissions were based on the appellant’s own savings as put in the interview and there was no evidence before me as to what the costs of those tickets might be. Equally, there is no evidence before me as to whether the appellant could apply any of the savings to his maintenance whilst establishing himself with some funds from work in the United Kingdom, or apply the savings combined with earnings to achieve the work/leisure balance of the rule. The whole basis of his application, and appeal prepared for the hearing, was that the appellant would be sponsored. I am merely left with submissions, largely unsupported by evidence, to deal with the respondent’s position; perhaps the position may have been recovered if an adjournment had been sought, or a new application submitted. I was not without some sympathy for the appellant’s representative in all the circumstances. ”

The appellant’s application for reconsideration relied upon three grounds. Firstly it is argued that the Immigration Judge erred in law in considering himself bound by the decision of the Tribunal in AM and then as a result in going on to apply that decision to an application that was not made for the purpose of settlement but for the purpose of temporary admission. Secondly it is argued that the finding that the Claimant did not have the means to pay for his onward or return journey was unsupported by the evidence. Thirdly it is argued that the Immigration Judge was obliged to accept the Claimant’s unchallenged evidence to the effect that he only intended to take jobs for short periods in order to further his English skills, and that these would be incidental to the holiday. Consequently it is argued the Immigration Judge had no basis upon which to call into question the nature of the Claimant’s declared intentions in the light of the evidence of an offer of six months employment as a clerk for five hours a day, for five days a week.

The first ground turns upon the proper construction of paragraph 95(v) of the Immigration Rules. We note the terms of paragraph 95(v) and we contrast the terms of what is required of a prospective visitor for a period of up to six months, pursuant to paragraph 41(vi), with what is required of a prospective working holidaymaker visiting for a period of up to twenty four months, in relation to maintenance and accommodation:

We note the draftsman’s express distinction between these two classes of visitor. There is no reason to suppose that this distinction is the result of a slip, or drafting error. In our judgement the working holidaymaker cannot simply be equated with the short term visitor, because it is plain that they are quite different classes of visitor. The working holidaymaker is permitted entry for an extended period, and granted permission to take employment (within the constraints of the Immigration Rules). The short term visitor, in sharp contrast, is not. Moreover the distinction to be drawn between the two classes of visitor in relation to employment is not limited to the grant of permission to take employment, but extends to their intentions towards employment. A short term visitor who intends to work will not satisfy the requirements of para 41; a working holidaymaker who does not intend to take work will not meet the requirements of para 95 (see NS (Working holidaymaker; intention to work) India [2007] UKAIT 0090). The two classes of visitor are therefore mutually exclusive.

The requirements for students and the reasons for those requirements are different too. In para 57(vii) of the Immigration Rules the term “himself” does not appear as a qualification. Thus the requirement for a prospective student is that he “is able to meet the costs of his course and accommodation and the maintenance of himself and any dependents without taking employment or engaging in business or having recourse to public funds.” That distinction too is no doubt intentional. Prospective students intend to benefit and improve themselves through education, and upon return to their country of origin they can be expected to take with them valuable skills to the benefit of their community in addition to themselves. It may be unrealistic to have a universal expectation that a student, who may not even be an adult, be able himself, from his own resources, to meet all his costs. Moreover the prospective student’s ability to take employment is heavily circumscribed. No doubt that is to ensure that the applicant’s ability to study does not become a secondary consideration to the need to find and keep employment in order to ensure that the funds needed for maintenance and accommodation can be raised.

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.

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.

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.

As is said in AM at [22], mere silence in the Immigration Rules as to whether third party support is permissible cannot be taken to mean that it is. Had it been intended that third party support should satisfy a maintenance requirement it could be expected that the Immigration Rules would say so. That view has now been endorsed by the Court of Appeal in MW (Liberia) v SSHD [2007] EWCA Civ 1376.

We are satisfied that the express terms of paragraph 95(v) require an applicant to demonstrate at the very least the ability to be self sufficient, throughout the duration of the proposed visit. We conclude that an applicant will not make out the necessary requirements if he is 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 has to be able to show that he has sufficient from his own resources (including the ability to do a limited amount of work merely incidental to a holiday) to fund the trip.

In that context we remind ourselves that the working holidaymaker provisions are not a route to ordinary or regular employment in the United Kingdom, and thus as the means to amass the capital to set oneself up for life. It must be borne firmly in mind that whilst a successful working holidaymaker is permitted to take employment, that employment must be incidental to the holiday (AG (Working holidaymaker; “incidental”) India [2007] UKAIT 00033), and in any event the period for which the applicant proposes to take employment must be a maximum of twelve months (paragraph 95(vi)). The phrase ‘incidental to the holiday’ has two elements: the working must be merely incidental, and it must be incidental to the holiday, not to something else.

We should reiterate by way of a cautionary note what was said in AA and Others (Sectors Based Work; general principles) Bangladesh [2006] UKAIT 26:

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.

It was argued in the application for reconsideration, although not by Ms Plimmer, that a construction of paragraph 95, in its requirement that a person be able and intend be self sufficient, could result in a disproportionate breach of an applicant’s Article 8 rights. We do not agree. There is adequate provision under the Immigration Rules for an individual’s application to enter the United Kingdom for a short visit by way of paragraph 41, and pursuant to that provision the maintenance and accommodation requirements of the applicant can be met by a third party sponsor. We are not persuaded that denying an applicant under paragraph 41 the ability to take employment, or conversely requiring an applicant under paragraph 95 to have both the ability to be self sufficient, and, to hold a genuine intention to be self sufficient, results in any breach of their Article 8 rights.

In the circumstances it is difficult to see how the Immigration judge could have come to any other conclusion than that which ultimately he did reach.

The appellant had declared an intention to pay for his return air fare himself, using his own resources to do so. He had not produced evidence to the Immigration Judge, (and did not produce such evidence to us either) to show the likely cost of a return air fare. It is however in our judgement unlikely that the entirety of the credit balance in the joint savings account (the equivalent of £555) would be sufficient to cover that cost. Even if it were, it is self evident that the cost would exhaust those funds.

The appellant was not, on the evidence that 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 that he expected to earn during a twelve month part time employment. We note that the appellant’s case was that he had the necessary resources only because he had recourse to the funds and accommodation that were to be provided to him by his cousin. Accordingly the appellant 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 appellant did not therefore at the date of decision meet the requirements of paragraph 95.

The Immigration Judge made no material error, and we order that his determination dismissing this appeal shall stand.