Krishnambal Sawmynaden v The Entry Clearance Officer

The appellant is a citizen of Mauritius who was born on 13 February 1945. She is now 67 years old and was already over 65 when, on 26 May 2011, the Entry Clearance Officer in Port Louis refused to grant entry clearance to her as a family visitor intending to visit her daughter.

The refusal of entry clearance was expressed in the following terms:

The appellant is a retired civil servant with a good pension of £450 a month. She owns her own home. In the circumstances to which we will later refer, her husband died in August 2010. She has family in the United Kingdom as well as a son in Canada. Indeed, the statement that she has made in support of these proceedings was made on 11 October 2011 whilst she was visiting him.

For the purposes of these proceedings, and most helpfully, we have been provided with a detailed schedule of the appellant’s travelling to the United Kingdom. (The list excludes the visits made to her son in Canada or her journeys to other countries.)

It is immediately apparent that the visit made on 9 October 2010 is substantially the longest visit that she has made and comes shortly after her bereavement when, understandably, she wanted the support of her daughter following the death of her husband.

For our purposes, the material provisions of paragraph 41 of the Rules are as follows:

is genuinely seeking entry as a general visitor for a limited period as stated by him, not exceeding six months…; and

intends to leave the United Kingdom at the end of the period of the visit as stated by him…

In Oppong (visitor – length of stay) Ghana [2011] UKUT 00431 (IAC), the Tribunal (Upper Tribunal Judges P.R. Lane and Perkins) summarised the approach it adopted in these terms:

The respondent in Oppong had decided that the appellant was not genuinely seeking entry as a general visitor for a limited period as stated by her not exceeding six months and that she had not shown that she intended to leave the United Kingdom at the end of the period of the visit as stated by her. After the notice of appeal had been sent to the respondent, the case was reviewed by an Entry Clearance Manager who said:

The Tribunal stated there was nothing about intending to care for a relative that is inherently incompatible with admission as a general visitor. It continued:

It may well be that a person who spends little time in his country of nationality will find it hard to prove that he satisfies the requirements of the Rules for entry clearance to the United Kingdom as a visitor. Certainly such a person should expect his application to be subject to rigorous scrutiny and a person who does not have a clear reason for wanting to make frequent visits may well find that his claims about the duration and purpose of the visit and his intention to return are not believed; but there is nothing about a prolonged stay in the United Kingdom punctuated by return trips to the country of origin followed soon by a further application for entry clearance as a visitor which in itself as a matter of law disqualifies an applicant from being a visitor.

The Tribunal considered policy guidance entitled “General visitors: frequency and duration of visits” suggesting that “ a visitor should not normally spend more than six out of any 12 months in the UK unless they have a good reason, such as receiving private medical treatment ”. It said that whilst this was useful guidance it did not state the law and it would be wrong to refuse someone entry clearance as a general visitor just because they have spent rather more than six of the last twelve months in the United Kingdom.

The present appeal came before Immigration Judge TRP Hollingworth, whose determination, promulgated on 26 October 2011, duly dismissed the appeal. No evidence from the sponsor was provided. The Judge recorded that, with the death of her husband in August 2010, the appellant had few significant family members in Mauritius. Although the Immigration Judge recorded that it was conceded that the appellant had spent a total of 14 ½ months out of the last 18 months in United Kingdom, this was not factually accurate as the table in paragraph 3 above reveals. The Judge went on to say:

The Judge’s determination avoids deciding what is an ordinary visitor and whether the appellant needed to establish that she was an ordinary visitor in order to meet the requirements of the Immigration Rules. In our judgement, the question is not whether she is an ordinary visitor but whether she is a visitor.

On the basis of this flawed reasoning, the Judge found that the appellant's intentions

Once again, this is not the issue that the Immigration Judge was required to determine. Whatever the future applications may be or, indeed, whether they will or will not succeed (all of which is speculative) it appears that he accepted that the appellant was a visitor albeit for a purpose that he found fell outside those permitted under the Rules. We are satisfied that this reasoning is wrong in law. The sole issue before the Judge was whether the appellant intended to visit which necessitated her also establishing that she would leave at the end of the period permitted for a single visit.

In this context, it is important to recall the evidence that was before the Judge which included statements from the appellant’s son and her daughters to the effect that the appellant had always travelled with her husband when he was alive and that she intended to continue visiting her daughters and her son on a regular basis. The family considered itself fortunate to be able to afford meeting each other on a regular basis, notwithstanding their living in different countries. She repeated her claim that she only intended to visit as the opportunity presented itself and not to settle either in the United Kingdom or in Canada. As there were no direct likes between Mauritius and Canada, travelling to Canada via the United Kingdom was the most convenient route for her, permitting her to visit relatives both in the United Kingdom and in Canada. She asserted, with some justification, that she had been honest and transparent with her intentions to date and had complied with the requirements of her visa. In paragraph 7 of her statement, the appellant acknowledged that she could apply to settle under the Immigration Rules but expressly disavowed an intention to do so. She made the reasonable claim that, as she is retired and her daughters are at work, it was more logical for her to visit the families of her children than it was for them, at much greater cost, to visit the appellant in Mauritius.

We are satisfied that there was no reason for the Judge to dismiss the appellant's claims, short of making an adverse credibility finding. However, there was, and is, no material upon which such a finding could properly have been made. The death of her husband was a reasonable explanation for her wishing to spend more time with her children. It follows that the appeal must succeed.

In reaching this conclusion, we have considered what factors might be material in a assessing whether an applicant is genuinely seeking entry as a general visitor for the limited period as stated by her, not exceeding six months, and intends to leave the United Kingdom at the end of the period of the visit as stated by her. The following considerations are relevant and may be helpful:

There is no restriction on the number of visits a person may make to the UK, nor any requirement that a specified time must elapse between successive visits.

The periods of time spent in the United Kingdom and the country of residence will always be important.

Both the expressed purpose of the visit and what the appellant has done in the past and intends to do in the future is material, together with the length of time that has elapsed since previous visits. In cases of this type, the appellant will be visiting a relative, often a parent visiting a son or daughter, often a son or daughter visiting a parent. In the case of a parent visiting a son or daughter, the parent will often fully participate in helping in the house, providing child care. In the case of a son or daughter visiting a parent, the adult child will often assist in care arrangements. None of these activities, for that reason alone, will take the individual outside the definition of a genuine visitor.

The links that the appellant retains with her country of residence will be a material consideration. Inevitably, there is likely to be access to accommodation if only for the purpose of returning home in order to make the application that is intended to result in a return to the United Kingdom. The presence of other family members will be a material consideration.

The Tribunal is required to ascertain what is the reality of the arrangement entered into between the appellant and the host in the United Kingdom. Is the reality that the appellant is resident in the United Kingdom and intends to be for the foreseeable future?

The issue may be approached by considering whether the reality is that the appellant is now no more than a visitor to her country of residence as the purpose of the return home is confined to using his or her presence there solely as the means of gaining re-admission to the United Kingdom.

This does not preclude the appellant from remaining in the country of residence for the least amount of time sufficient to maintain her status as a genuine visitor.

Family emergencies, whilst likely to result in a longer visit than the established pattern should not be regarded as taking up residence without adequate supporting evidence to that effect. Thus, the pregnancy of a daughter or daughter-in-law or the aftermath of the birth might explain a more-protracted stay (within the 6-month duration of a single permitted visit); so, too, a serious medical condition.

There may be comparisons with the person who owns homes in two different countries. Is he resident in both or a visitor to one of them?