AS, SS, (India) v Secretary of State for the Home Department [2012] EWCA Civ 229

Case No C5/2010/1964 and C5/2010/1968[2012] EWCA Civ 229
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
[Appeal No: OA/33381/2009]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 2 nd February 2012
Before
LORD JUSTICE TOULSONLORD JUSTICE MUMMERYLORD JUSTICE KITCHIN
Between
AS, SS, (India)AppellantsSecretary of StateRespondentfor the Home DepartmentRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Anawar Miah (instructed by Messrs A Bajwa and Co) appeared for Appellants.Mr M Barnes (instructed by Treasury Solicitor) appeared for Respondent.
Judgment
[1]The appellants are citizens of India. They each applied for entry clearance to the UK as working holidaymakers for a period of two years. The working holidaymakers scheme has since been replaced, but, under paragraph 95 (v) of the Immigration Rules as they then were, an applicant for entry clearance as a prospective working holidaymaker had to satisfy a number of requirements including that he "is able and intends to maintain himself without recourse to public funds": paragraph 95(v). The entry clearance officer (“ECO”) was not satisfied that either appellant met that requirement and he rejected their applications.[2]Each appealed unsuccessfully, first, to an Immigration Judge and then to the Upper Tribunal where their appeals were dismissed by Senior Immigration Judges.[3]They appeal to this court by leave of Laws LJ. In the case of AS the appeal is not opposed. The reason is this. Paragraph 95 (v) was at one time interpreted as requiring the applicant to be able to provide for his accommodation and keep out of his own resources and earnings without any other third party support. In Mahad [2009] UKSC 16 the Supreme Court held that third-party support could be taken into account in other cases where an applicant was required under the Immigration Rules to show an ability to maintain himself without recourse to third-party support and, in the light of that decision, the Secretary of State has accepted that the same approach should be taken to paragraph 95(v).[4]SS's application was accompanied by a sponsorship declaration. The sponsor, who lived in Hayes, described the appellant as a family friend and undertook to provide the appellant with financial support and accommodation and to pay for his repatriation. The Immigration Judge and Senior Immigration Judge regarded this evidence as irrelevant, applying the law as they understood it to be. It is accepted that they were wrong and the case should therefore be remitted to the Upper Tribunal for a fresh hearing of the appeal against the ECO's decision. The Secretary of State makes no such concession in the case of SS. His application was refused by the ECO on a number of grounds. His appeal to the Asylum and Immigration Tribunal was dismissed by Immigration Judge Andonian in a short determination dated 2 November 2009. The appellant sought and was granted an order for reconsideration. The matter came before Senior Immigration Judge Martin in the Upper Tribunal. In his determination dated 29 March 2010 he found that there were errors of law in the Immigration Judge's determination, but by agreement he proceeded to make his own decision on the evidence. He set aside the determination by the Immigration Judge but dismissed the appeal.[5]Laws LJ gave leave to appeal to this court on the ground that, although he considered SIJ Martin's findings to be impeccable as far as they went, there was an observation in his determination that the appellant was not entitled to rely on any prospect of third-party accommodation and maintenance for the purpose of establishing that he could maintain himself without recourse to public funds. The words used by the Senior Immigration Judge in paragraph 33 were: "I have to be satisfied therefore that an Appellant has, from his own resources, enough money to fund the entirety of his trip, taking into account any potential earnings.”[6]This self-directive involved an error of law, but the Secretary of State submits that the possibility of third party support had never been raised by this appellant, by contrast with AS, either before the Immigration Judge or before the Senior Immigration Judge and accordingly the error of law in paragraph 33 of the determination was not material to the outcome of the appeal.[7]It is undeniably the case that the appellant's grounds for seeking reconsideration of the Immigration Judge's decision made no mention of the possibility of the appellant receiving third party support. In his determination SIJ Martin said the following about the information provided by the appellant to the ECO. :"16. The Entry Clearance Officer noted that the appellant planned to take £3,000 with him, which he said seemed to be a large amount compared to his family circumstances. He had not shown that it was credible for him to use his family's entire savings to fund the working holiday nor did he show that it was credible for him to use those funds to pay for an extended holiday given that it was the first time that he had travelled outside India, especially to a country where he knows no one. The Entry Clearance Officer noted the appellant had not explained or shown that it was realistic for him to spend the savings on a working holiday and consequently the Entry Clearance Officer was not satisfied that the funds were genuinely available to him. On that basis he was not satisfied that the appellant planned only to take up temporary work or that he could maintain and accommodate himself without resource to public funds.17. The Entry Clearance Officer noted that the appellant knew no one in the UK, spoke little English and had no job offer and on that basis was not satisfied that he would be able to maintain employment which would enable him to maintain and accommodate himself without recourse to public funds”. It is to be noted therefore that the appellant had not suggested to the ECO that there was anybody in the UK who would provide him with support or that he would expect to have any more than £3,000 out of the family's savings.[8]The Senior Immigration Judge summarised the way in which the case was presented to him about how the appellant proposed to support himself as follows:"20. Mr Bajwa on the Appellant's behalf argued that the Appellant had in his own name in a bank account £3,522 of which he is only proposing to take £3,000 to the UK. He argued that sum would be enough for the initial two months in accordance with the IDIs. He submitted that it was not the entire family savings but rather his own money and crop receipts had been supplied to show the family's income. As the money is in the Appellant's account I therefore accept on a balance of probabilities that that money is available to the appellant for the purposes of a working holiday.21. However, I also have to be satisfied that the Appellant can maintain and accommodate himself for the entirety of his stay. Mr Bajwa argued that the appellant will be able to work 40 hours a week and therefore [be] able to earn £12,000. He argued that the Appellant does have English and therefore will be able to obtain employment at more than the minimum wage.22. I disagree with Mr Bajwa that the Appellant's skills are such that he will be able to obtain employment and a salary significantly higher than the minimum wage. The Appellant's lack of English is displayed by his reliance upon his representatives to complete his form. He finished high school in 2000, nine years earlier since when he has been working on the family farm. There is no evidence that he has language skills sufficient to enable him to secure employment in an English speaking environment.[9]That was the way in which the case was presented to the Senior Immigration Judge. In summary the appellant proposed to support himself in the UK by the £3,000 which he would bring with him and his prospective earnings, which he put at £12,000.[10]Having stated the law erroneously in the paragraph which I have already quoted, the Senior Immigration Judge then proceeded to consider the case presented on behalf of the appellant on the facts.[11]At paragraph 34 he calculated that a two-year working holiday would require the appellant to find £19,760. He derived that figure from calculations based on the Lonely Planet Destination Guide website. At paragraph 35 he calculated that to receive a net income of £19,760 a working holidaymaker would need to find a job paying a gross salary in the region of £26,000 per annum. At paragraph 36 he said:
"The appellant in this case was planning to bring £3,000 with him and claims to be able to earn £12,000. That of course will be subject to tax and National Insurance if indeed he could obtain employment at that level. Given his lack of English and other skills I do not find that he would be able to secure employment at anything other than the minimum wage which in 2009 was £5.82 per hour. Working a 40 hour week therefore will provide a gross income of £232 per week or £12,064 per annum. That is a gross figure and that together with the Appellant's £3,000 is significantly below the amount required for his maintenance and accommodation and sightseeing activities over the two-year period. It is of note that he claims to be intending (although I have acknowledged that those intentions are the words of his representative rather than his own) to be travelling throughout Europe as well as the British Isles on this working holiday. That is likely to increase further the amount of money that he requires. "
[12]The Senior Immigration Judge concluded that he was not satisfied that the appellant would be able to maintain and accommodate himself during the duration of the proposed working holiday and accordingly dismissed his appeal.[13]Mr Miah sought to argue that the misdirection as to the law in paragraph 33 was material, because, if the appellant had known that he might rely on third party support of an application for entry clearance, he would have been able to make out a case that more money would have been available to him by way of remittances from India out of his family savings. That is entirely hypothetical. The Senior Immigration Judge had to address the case which was in fact presented to him and decide whether the appellant had established on the facts which he had put before the tribunal that he would be able to support himself. For the reasons that were set out in his careful determination the Senior Immigration Judge was not satisfied with those matters and the appellant does not have leave to argue that the Senior Immigration Judge was wrong in that regard.[14]In those circumstances it seems to me plain that the error of law made by the Senior Immigration Judge in paragraph 33 was not material to the outcome. Put very shortly this was not a case in which the appellant had in fact ever sought to rely on the prospect of third party support. Therefore, whereas the error of law was material in the case of Mr AS, it was not material in the case of this appellant.[15]For those reasons I would allow the appeal on AS and make the order to which I have referred but I would dismiss the appeal of Mr SS.[16]I agree.[17]I agree.

Order

AS - Appeal allowed SS – Appeal dismissed