YT v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

The appellant is a national of Belarus. He appealed to an Immigration Judge against the Secretary of State’s decision refusing to vary leave to remain.

The appellant originally entered the United Kingdom on 11 July 2005 with entry clearance and a work permit under the sector based scheme. He went back to Belarus during the currency of that leave but returned to the United Kingdom on 18 March 2007 with entry clearance and a work permit, again under the sector based scheme. This leave was valid until 17 March 2008. On 14 March 2008 the appellant made an application through his representatives for variation of leave under paragraph 44 of the Immigration Rules as he wished to spend six months in the United Kingdom as a visitor. This application was rejected by the Secretary of State. The appellant appealed to an Immigration Judge.

The Immigration Judge found the appellant to be credible. He accepted his evidence entirely. He noted the appellant’s evidence that he had not had the opportunity to travel in the United Kingdom whilst he had been working and wished to spend six months in the United Kingdom as a visitor and then return to Belarus as he had done previously. He said he had applied for a visit visa as he had friends working on the same scheme who had done the same thing.

The Immigration Judge considered that, as he put it, there was no legal impediment to the appellant switching from leave under the sector based scheme to leave as a visitor. He commented that the Rules allowed for situations where a person who originally intended to leave at the end of his work permit now wished to stay on for a short time as a visitor. He therefore disagreed with the Secretary of State’s view that since the appellant had not returned to Belarus but had made an application to remain as a visitor, he did not have a genuine intention to return and had breached the conditions attached to his previous grant of leave. The appeal was allowed.

The Secretary of State sought reconsideration of this decision, arguing that paragraph 44 of HC 395 related only to people who had previously been granted leave to enter as a visitor and were seeking further leave as a visitor, referring to relevant Immigration Directorate Instructions (IDIs). It was also argued that the Immigration Judge failed to have regard to whether he had jurisdiction to hear the appeal on the basis that the appellant lacked the relevant immigration document as specified in Section 88(2)(b) of the Nationality, Immigration and Asylum Act 2002. Thirdly it was contended that the Immigration Judge did not adequately reason his conclusion that the appellant intended to leave the United Kingdom at the end of the leave for which he had applied.

A Senior Immigration Judge ordered reconsideration on all grounds.

The appeal was originally listed for hearing on 9 September 2008. The appellant appeared unrepresented. In light of the points being made on behalf of the Secretary of State I considered it would be appropriate for him to seek to obtain legal representation since there were legal points of some potential difficulty with which I anticipated he would have some problems in dealing. The appeal was therefore adjourned to enable him to get legal representation.

The matter was re-listed for hearing before me on 28 November 2008. Mr L Tarlow appeared on behalf of the Secretary of State. There was no appearance by or on behalf of the appellant. I ascertained from the file that notice of the date, time and place of hearing had been sent to the appellant on 27 October 2008, by first class post. No explanation had been provided for his absence. I accordingly decided that it was appropriate to go ahead with the hearing.

Mr Tarlow argued that it was clearly implied in paragraph 44 of HC 395 that a person had to be a visitor to get an extension of stay as a visitor. He also referred to paragraph 135L and the wording of the sector based scheme and the opportunities for extensions in that regard and argued that again the wording limited the appellant to being in the United Kingdom as set out in paragraph 135L(iv). He accepted that there was a lack of clarity in the wording of the Rules, but argued that the header to paragraph 44 implied that the person in question had to be in the United Kingdom initially in the capacity of a visitor.

I reserved my determination.

It will be helpful to set out in full the relevant provisions. Paragraph 44 of HC 395 states as follows:

“Requirements for an extension of stay as a visitor

44.

Six months is the maximum permitted leave which may be granted to a visitor. The requirements for an extension of stay as a visitor are that the applicant:

(i)

meets the requirements of paragraph 44(ii) – (vii); and

(ii)

has not already spent, or would not as a result of an extension of stay spend, more than six months in total in the United Kingdom as a visitor. Any period spent as a seasonal agricultural worker and as a student visitor are to be counted as a period spent as a visitor; and

(iii)

was not last admitted to the United Kingdom under the Approved Destination Status Agreement with China.”

Paragraph 135L of HC 395 states as follows:

“Requirements for an extension of stay for Sector-Based Scheme employment

135L The requirements for an extension of stay for Sector-Based Scheme employment are that the applicant:

(i)

entered the United Kingdom with a valid Home Office immigration employment document issued under the Sector-Based scheme; and

(ii)

has written approval from the Home Office for the continuation of his employment under the Sector-Based scheme; and

(iii)

meets the requirements of paragraph 135I(ii) to (vi); and

(iv)

would not, as a result of the extension of stay sought, remain in the United Kingdom for Sector-Based scheme employment to a date beyond twelve months from the date on which he was given leave to enter the United Kingdom on this occasion in this capacity.”

The particular requirement of paragraph 44 with which the Secretary of State took issue in the appellant’s case was the question of his intention to leave the United Kingdom at the end of the period of visit as stated by him, set out at paragraph 41(ii). It is relevant also to note that at the earlier hearing Mr Gulvin, who appeared on behalf of the Secretary of State, said that he was not pursuing the jurisdiction point, and the matter was not renewed by Mr Tarlow.

I do not propose to set out the relevant IDIs. They do not, in my view, take matters any further beyond the wording in the relevant Immigration Rules. It is also relevant to note the recent remarks of Laws LJ in AM (Ethiopia) and Others [2008] EWCA Civ 1082 at paragraph 38. There he said the following:

“It is thus in the nature of the Immigration Rules that they include no overarching implicit purposes. Their only purpose is to articulate the Secretary of State’s specific policies with regard to immigration control from time to time, as to which there are no presumptions, liberal or restrictive.”

It is in my view sufficiently clear from paragraph 135L of HC 395 that that is concerned with a person seeking an extension of stay for Sector-Based Scheme employment. It does not therefore directly concern itself with the position of a person who, having come to the United Kingdom for Sector-Based Scheme employment, seeks an extension of stay in the capacity of a visitor. It is not, however, without relevance that the limitation at (iv) of paragraph 135L precludes a person as a result of the extension of stay sought from remaining in the United Kingdom for Sector-Based Scheme employment to a date beyond twelve months from the date upon which he was given leave to enter the United Kingdom on this occasion in that capacity. That, however, as I read it, imports a restriction purely on the length of time for which a person can remain in the United Kingdom for Sector-Based Scheme employment and is silent on the question of whether or not he or she can stay on for a different purpose, in this case for the purpose of a visit.

The next issue concerns the ambit of paragraph 44. Mr Tarlow argued that guidance as to the proper meaning of this can be found in the header “Requirements for an extension of stay as a visitor”. That seems to me however to be entirely ambiguous. It does not say, as indeed it could have done if it had been thought necessary, that the only people entitled to extensions of stay in the capacity of visitor are people already in the United Kingdom as visitors. It is not without relevance to bear in mind the reasons the appellant gave for wishing an extension of stay as a visitor in this case. He had not had the opportunity to travel in the United Kingdom while he had been working here and presumably he regarded it as much more convenient to remain in the United Kingdom and travel around rather than to have to go home and then make a separate application for entry clearance for the purpose of a visit. I can see no good reason, nor anything particular in the scheme, format or content of the Immigration Rules which would make such a requirement desirable or necessary. I can see nothing in paragraph 44 or elsewhere in HC 395 to require a person who, like the appellant, has been in the United Kingdom in the capacity, as in his case, of Sector-Based work, to leave the country and make application for a visit permit. The wording of paragraph 44 does not, in my view, preclude a person in his position from seeking an extension of stay as a visitor. The only part of paragraph 41 with which the Secretary of State appeared to take issue was paragraph 41(ii), and I consider that the Immigration Judge came to proper findings on that and I do not think that the challenge in that regard in the grounds is made out. Otherwise, the appellant proposes to do no more than spend six months in the United Kingdom as a visitor. It would have been perfectly possible, had the construction argued for by the Secretary of State been the appropriate one, for paragraph 44(ii) rather than limiting the amount spent in total in the United Kingdom as a visitor to six months, to limit the amount of time to spent in the United Kingdom in its entirety to six months or some other period. The absence of any express preclusion in the Rules of a variation of the kind sought by the appellant in this case persuades me that the Immigration Judge did not materially err in this case and therefore his decision allowing this appeal on all grounds is maintained.