MH v The Entry Clearance Officer, Dhaka, Bangladesh

The appellant, a citizen of Bangladesh, appealed to the Tribunal against the decision of the Respondent on 25 February 2007 refusing him Entry Clearance as a working holidaymaker. An Immigration Judge dismissed his appeal. The appellant sought and obtained an order for reconsideration. Thus the matter comes before us.

The question at issue in this reconsideration is whether the Immigration Judge erred in his interpretation and application of the provisions of para 95(v) of the Statement of Changes in Immigration Rules, HC 395, which requires a person seeking Entry Clearance as a working holidaymaker to show that he:

“is able and intends to maintain and accommodate himself without recourse to public funds”.

Before the Immigration Judge the appellant established his ability to maintain and accommodate himself without recourse to public funds. In fact it is clear that the appellant is unusually wealthy for a person proposing a working holiday. We observe in passing that since this appeal was heard the Court of Appeal has in MW (Liberia) v SSHD [2007] EWCA Civ 1376 endorsed the Tribunal’s reading of the requirement in a number of rules that an applicant be able to maintain and accommodate himself, and the Tribunal has applied that reading to working holidaymakers (TS [2008] UKAIT 00024) and to the dependent family members of students, as distinct from students themselves (PA [2008] UKAIT 00016).

The appellant’s difficulty is that at the hearing his sister, who lives in the United Kingdom, gave evidence that during his working holiday he would be staying either with her or with another sister in London and that his hosts would provide all his accommodation and food free of charge. In those circumstances the Immigration Judge concluded that the requirement that the appellant intend to maintain and accommodate himself had not been made out. It was for that reason that he dismissed the appeal.

The rules relating to working holidaymakers are not entirely easy to interpret. In attempting to do so we have to look at them in the context of the Immigration Rules as a whole. It would obviously be absurd if a person claiming to seek a working holiday could thereby obtain exemption from the restriction to six months and the prohibition on working that apply to a person taking an ordinary holiday. But a working holidaymaker is different from an ordinary holidaymaker, because he has to be self-sufficient (TS, above) and he has to have an intention to work, although the intention must be to do work that is merely incidental to a holiday (NS [2007] 00090). The question here is whether the Rules allow a person who is unlike an ordinary holidaymaker in those respects to be sufficiently like an ordinary holidaymaker as to be able to accept offers of accommodation from relatives and friends during his visit.

It seems to us that the requirement of intention in this element of para 95 needs to be read quite broadly. To begin with, suppose an Entry Clearance Officer, satisfied that an applicant met all other requirements of para 95, asked whether the applicant would accept hospitality in the United Kingdom if it were offered to him. The applicant might say that he hoped or knew that it would be offered to him, and that if it was he would accept it. We doubt if it could be said that the application should be refused on that ground alone. And it is difficult to see that the wording of the rule itself would justify any difference between a person who would accept hospitality if offered and a person who knows it will be offered; or between a person who will benefit from the hospitality of others for part of his stay and a person who will benefit from the hospitality of others during the whole of his stay.

The requirement of intention coupled with ability to maintain is found in other parts of HC 395, sometimes in the form ‘can and will be’. It is, for example, in that form in paras 197 and 297, both of which relate to the admission of children, so that the intention in question is not that of the applicant. Each requires that the applicant ‘can and will’ be maintained adequately without recourse to public funds. It is clear in that context that the ‘will’ implies (by way of the addition to ‘can’) that the funds must not merely be available but that the existence of the funds must go to securing the adequate maintenance of the child in question. That is to say, it is not sufficient to have the funds but to propose to spend them on something else entirely.

Although the parallel is far from exact we find here some assistance in deciding the question before us. 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 the present case the evidence established that at the date of the decision the appellant was able and intended to maintain and accommodate himself without recourse to public funds. The Immigration Judge materially erred in law in interpreting the intention requirement of para 95(v) in the way he did. We substitute a determination allowing the appellant’s appeal.