AK (WHM – maximum 12 months work) Bangladesh [2007] UKAIT 00064

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Heard at: Field House                                                 	Date of Hearing: 19 June 2007

Before:

Miss E Arfon-Jones DL, Deputy President of the Asylum and Immigration Tribunal 
Senior Immigration Judge Freeman

Between

Appellant
and

ENTRY CLEARANCE OFFICER, DHAKA
Respondent

Representation
For the Appellant:		Mr A Burrett of Counsel, instructed by Charles Simmons, Solicitors
For the Respondent:		Mr W Khan, Home Office Presenting Officer

The restriction in paragraph 95(vi) to a maximum of twelve months’ work applies whether the work is full time or part time.

DETERMINATION AND REASONS

1.	The appellant, born on 1 January 1984, is a citizen of Bangladesh.  He applied for entry clearance to the United Kingdom as a working holidaymaker for a period of two years.  His application was refused on 30 August 2006.  He appealed to the Tribunal and following a hearing before Immigration Judge Haynes on 14 February 2007, his appeal was dismissed.

2.	The appellant applied for reconsideration of the decision and Senior Immigration Judge Waumsley ordered reconsideration of the decision on 3 April 2007.  He ordered reconsideration in the following terms:-

“The ground on which the appellant has applied for an order for reconsideration may be summarised as follows:

1.	In concluding that the appellant’s sponsor did not have the financial means to maintain the appellant for the whole of his proposed two-year working holiday, the Immigration Judge erred in failing to take account of the guidance contained in the Immigration Directorate’s instructions at chapter 4, section 2, annex C.;

2.	He erred in concluding that it would not be open to the appellant to work part-time for the whole of his two-year stay, if so minded.

Those grounds, particularly ground 2, raise arguable pints of law which merit further consideration.  Reconsideration is therefore ordered, limited to the issues raised in the appellant’s grounds.”

3.	The relevant Immigration Rule is paragraph 95 of HC395, it is not necessary to set out in full.  The rule does, however, require the appellant to demonstrate that he:-

“(iv)	has the means to pay for his return or onward journey; and
(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 sports person, and in any event not to work for more than 12 months during his stay; and
…
(viii)	intends to leave the United Kingdom at the end of his working holiday”.

4.	If the requirements of the Rules are otherwise met, entry clearance and accordingly leave to enter, will be for a period not to exceed two years.

5.	The Notice of Refusal issued to the appellant indicated that the respondent was not satisfied that the appellant met the requirements of sub-paragraphs (iv), (v), (vi) and (viii) of paragraph 95.

6.	The Immigration Judge found at paragraphs 10 to 14 inclusive of the determination that he could not be satisfied that the appellant had met the requirements of the relevant sub-paragraphs of paragraph 95.  It is helpful at this stage to set out in full that part of the determination in which the Immigration Judge makes clear his evaluation of the evidence and explains his findings of fact:

“10.	The ECO in the refusal took issue with the appellant over his proposals for employment.  The appellant in his original application said that he was applying for a working holidaymaker visa and intended to stay in the UK for one-two years.  The ECO in the refusal referred to a job offer which the appellant had where he was to be employed on a part-time basis as a general assistant working fifteen hours per week.  I could not find confirmation of this offer in the bundle of documents presented to me.  Nevertheless the appellant in the grounds of appeal only dealt with this issue tangentially – that he was aware of the requirement of being a working holidaymaker.  There was no direct challenge to the ECO’s conclusion that the appellant’s intention was to work part-time for the full period of two years.  That remark I considered was a serious defect in the evidence presented to the ECO.  It went to demonstrate that the appellant was a person who was prepared to work within the working holidaymaker framework for the whole period.
	
11.	What was equally significant I considered was the evidence to be found in the appellant’s statement.  Here in paragraph 7 he said that his cousin had managed to secure a part-time job for him as a general assistant.  In paragraph 9 he said his motive was to see his cousin, sister and family and to work part-time and also visit the fascinating sights around the country.  But he added in paragraph 10 that the ECO questioned his intentions to work part-time during his two year’s stay.  The appellant went on:

“I only intend to work part-time so I will get money to cover my expenses and will not be a burden on anyone.  I will not work full-time because I wish to benefit from my working holiday by seeing sights, meeting new people and tasting the UK culture and lifestyle”.
	
These remarks I consider are significant.  They are made to emphasise that he will not work full time – not that he acknowledges he will take work incidental to the holiday.  I consider this remark seriously damages the appellant’s motives to work within the spirit of the WHM scheme.  Paragraph (vi) makes it clear that the appellant must intend to take employment incidental to his holiday and not to engage in business… and in any event not to work for more than twelve months during his stay.  I looked in vain for evidence from this appellant that he understood that this was a core feature of the application.  There was no evidence to be found that the appellant understood and acknowledged that he was not going to work for more than twelve months.  That issue I considered was fatally damaging to the success of this appeal.

12.	I heard evidence from the appellant’s sponsor who I found a wholly credible and reliable witness so far as his commitments to sponsorship was concerned.  He said that he would host the appellant at 20 Langmore House.  I was satisfied on the evidence that when he said he was prepared to sponsor the appellant he would be able to do that.  On the other hand he acknowledged that his income was as shown in payslips on the file.  He was employed at Thistle Hotels Ltd.  His income I calculated to be in the order of £165 net per week.  Gross pay amounted to about £9,700.  He gave evidence to say that he was in receipt of state benefits, he had tax credits and child tax credits.  He had child benefit in respect of his two children.  Whilst he had savings his bank statements were not produced for my scrutiny.  At the date of decision I considered there was a sum of about £5,420 outstanding to the account’s credit.  That was a reasonable sum for savings.  There was no evidence to say that any of the other family members were working.  The sponsor lived with his wife and two small children and his father.  I considered the sponsor’s income together with the sums that were in credit in his bank account at the date of decision were tight.  He conceded that at the end of twelve months if the appellant was not able to work he may well return home.  He would do his best to make sure that he was properly provided for.  I believed him when he said this.  But I was not persuaded to the civil standard that there was sufficient funding available to this appellant for his two-year stay if he was restricted to twelve months part-time working as he must be at the end of twelve months I considered the money would not be available for him.
 
[There is no paragraph 13]

14.	For these reasons I am not satisfied that the appellant has met the requirements of paragraph (v) and (vi).  I am satisfied that there was fully adequate accommodation for the appellant and his sponsor.  There were doubts that the appellant had the means to pay for his return or onward journey and consequential doubts that the appellant intended to leave the UK at the end of his working holiday.”
	
7.	At the hearing before us at Field House on 19 June 2007 Mr Burrett of Counsel produced the relevant Immigration Directorate’s Instructions (IDIs).  In drawing to our attention paragraph 10 of the Immigration Judge’s determination, he invited us to note the Immigration Judge’s finding that the evidence demonstrated that “the appellant was a person who was prepared to work within the working holidaymaker framework for the whole period”.  It was the appellant’s intention to work on a part-time basis in order to earn funds to sightsee within the United Kingdom.  Mr Burrett emphasised that “incidental” was at the very heart of the Immigration Rule and as such should be given priority when focusing on whether or not the appellant had met the requirements of the rule.  The appellant had established that he intended to spend more time holidaying than working and that by working he hoped to fund his stay.  There was no intention whatsoever to work more than 15 hours a week, significantly less than full-time employment.  It was therefore clear that his intentions with regard to employment were to be incidental to his holidaymaking.  Mr Khan on behalf of the respondent reminded us of what the appellant had said in his witness statement on the basis of which the Immigration Judge had concluded that there was no evidence “to be found that the appellant understood and acknowledged that he was not going to work for more than 12 months.”  Mr Khan submitted that the conclusion drawn from the evidence by the Immigration Judge that the fact that the appellant intended to work over the whole two year period was fatally damaging to the appeal.  He submitted that there was indeed no error of law.  In acknowledging that the 12 months’ work could be split in any way in that it did not need to be consecutive periods of work, he urged us to accept that the Immigration Rule specified with clarity that the overall time spent in work could not exceed 12 months.

8.	Mr Burrett invited us to conclude that interpreting the Immigration Rule to mean that one could not work in whatever pattern of work one chose but in any event for no more than 12 months over the two year period was absurd.  For example if an appellant were to work one hour per week over the two year period, he would not meet the requirements of the rule although he would de facto be in employment for considerably less than others who might well satisfy the requirements of the rule.

9.	At the heart of this appeal is the construction of the provision set out in paragraph 95(vi) – “and in any event not to work for more than 12 months during his stay”.  The IDIs at paragraph 2.2 thereof under the heading of “Work Incidental to a Working Holiday” provide that:-

“Working holidaymakers are expected to intend to take work in the United Kingdom as an incidental part of their working holiday.  Those wishing to enter in the category should treat the work that they do as a purely incidental part of their holiday (which should be their primary reason for being here) rather than being the reason for which they have sought entry to the United Kingdom.  Accordingly, working holidaymakers must not intend to spend more than 12 months of their stay in employment, and must intend to spend the rest of their stay holidaying. … However, they may not engage in business or provide services as a professional sportsperson, and they may only engage in work for a maximum period of 12 months in total throughout their stay.  They may choose when to work and when to take their holiday breaks as they wish, but those who exceed the maximum 12 month period of work permitted will be in breach of their conditions.”

10.	We were referred to AG (Working holidaymaker: ‘incidental’) India [2007] UKAIT 00033.  Here there was a different question to be answered: did the reference to “12 months” in the rule entitle someone who was only staying that long in this country to work the whole time?  The answer was no, despite a concession to that effect from the presenting officer, because (to quote the judicial head-note in full:

“The word ‘incidental’ in paragraph 95(vi) of HC 395 means what it says, and embodies a requirement of the Rules.  The Secretary of State may grant leave to enter outside the Rules, but it is not open to the Secretary of State to purport to adopt a meaning of the Rules that is contrary to their clear words.”

11.	Mr Burrett’s argument was based not on the plain words of the rule, but on what he urged us to regard as its sensible meaning.  While we recognise that the Rules are not to be construed like a statute, the purpose of this one, if not clear already, was in our view made clear in AG.

12.	While Mr Burrett argued that working part-time for the whole of a 24-month visit might amount to no more than 12 months at work, we cannot accept that this agrees with the purpose of the rule.  First, in a working holiday which depended on being able to work part-time for the whole of one’s stay, one’s employment could not sensibly be described as “incidental to the holiday”.  What is more, the draftsman of the proviso has chosen to express the period allowed in any event in terms of months, and we have no doubt that was deliberate.  Decision-makers are not required to add up each day to be worked to see if the total is likely to reach 12 months’ work during the visit as a whole: they cannot have been expected to form their own rules, without any further guidance, as to what a working month, or even week was to be.  All they need to do is to decide whether a would-be working holidaymaker will need to work for any part of a period (or periods, in line with Mr Khan’s concession) exceeding 12 calendar months during his whole stay.  If so, then following AG, his employment cannot be regarded as “incidental to the holiday”, and the application must fail under the rule.

13.	It is clear to us that sub-paragraph (vi) of paragraph 95 should be given its ordinary meaning.  The correct interpretation is that an applicant is not entitled to entry clearance unless he is “intending only to take employment incidental to a holiday” and the reference “12 months” at the end of the sub-paragraph is significantly in our view preceded by the words “in any event”.  There can be no doubt it seems to us that the primary requirement is that the employment will be incidental to the holiday and that any period of employment will not exceed 12 months in total.

14.	The Immigration Judge found no evidence that the appellant “understood and acknowledged that he was not going to work for more than the 12 months.  That issue I considered was fatally damaging to the success of this appeal”.

15.	We agree entirely with the conclusion reached by the Immigration Judge.  Accordingly, the Immigration Judge made no error of law in dismissing the appeal and we order that the determination stands.

Decision

16.	The appeal is dismissed.     

E ARFON-JONES DL
DEPUTY PRESIDENT
          Date: