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

UKAIT
AK (WHM, maximum 12 months work) Bangladesh [2007] UKAIT 00064 (12 July 2007)
[2007] UKAIT 00064 · 2007-07-12
[1]AK (WHM – maximum 12 months work) Bangladesh [2007] UKAIT 00064 ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 19 June 2007 Date Determination notified: 12 July 2007 Before Miss E Arfon-Jones DL Deputy President of the Asylum and Immigration Tribunal Senior Immigration Judge Freeman Between AK APPELLANT and ENTRY CLEARANCE OFFICER, DHAKA RESPONDENT For the Appellant: Mr A Burrett of Counsel, instructed by Charles Simmons, Solicitors For the Respondent: Mr W Khan, Home Office Presenting Officer DETERMINATION AND REASONS The restriction in paragraph 95(vi) to a maximum of twelve months' work applies whether the work is full time or part time. 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." "(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"."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." "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." "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." Decision E ARFON-JONES DL DEPUTY PRESIDENT Date:

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