KJ v The Entry Clearance Officer, New Delhi [2011] UKUT 34 (IAC)

[2011] UKUT 34 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Venue Heard at: Field House

On: 8 December 2010 Determination promulgated

Before

Mr Justice A F Wilkie

Senior Immigration Judge Gill

Between

KJRespondent

AppellantAndRespondent

Entry Clearance Officer, New DelhiRespondent

The Entry Clearance Officer, New DelhiRespondent

Appellant And

Entry Clearance Officer, New Delhi

Respondent

No appearance for Appellant

Mr. R. Hopkin, Home Office Presenting Officer for Respondent

The Secretary of State accepts that, following the judgment of the Supreme Court in Mahad v. Entry Clearance Officer[2009] UKSC 16, applicants for entry clearance as working holiday makers under the now defunct paragraph 95 of the Immigration Rules, may rely upon third party support in order to show that they satisfy the requirements of paragraph 95(v), which requires that: “(v) [the applicant] is able and intends to maintain and accommodate himself without recourse to public funds; …” However, it will still be necessary for Immigration Judges to determine whether, on the facts, any third party support relied upon will in fact be available and, if so, whether on the whole of the evidence, the applicant satisfies the requirement in paragraph 95(v).

DETERMINATION AND REASONS

Date 2010-12-08

[1]The Appellant, who is a national of India born on 28 April 1986, applied on 20 November 2008 for entry clearance as a working holiday maker. His application was refused by the Respondent on 17 March 2009.

[2]The Respondent was not satisfied that the following requirements of paragraph 95 of the Statement of Changes in the Immigration Rules HC 395 (as amended) (“the Immigration Rules”) were satisfied:(a) (para 95(v)) that the Appellant was able and intended to maintain and accommodate himself without recourse to public funds;

(b) (para 95(vi)) that the Appellant intended only to take employment which was incidental to a holiday; and

[3]The Respondent reached these conclusions for several reasons, including that the Appellant planned to take with him Rs. 5 lakh, the equivalent of £6250, which the Respondent considered was a large amount compared to his family’s circumstances. The Respondent noted that the Appellant's father earned Rs. 8279, the equivalent of about £103, a month. The Respondent did not consider it credible that the Appellant intended to spend his father’s income for five years and deplete the whole of his retirement fund and savings to pay for an extended holiday. The Respondent did not consider that these funds were genuinely available to the Appellant. The Respondent considered that the Appellant had not shown how his parents would support themselves in retirement, if their retirement funds were used to pay for his extended holiday.

[4]The Appellant’s appeal against the Respondent's decision was determined on the documentary evidence by Immigration Judge Peart. This was because the Appellant did not request an oral hearing. In a determination promulgated on 12 October 2009, the Immigration Judge dismissed the Appellant's appeal. The Immigration Judge referred to TS (working holiday maker: no third party support) India

[2008] UKAIT 00024

, KS (India) and JA (Bangladesh)

[2009] EWCA Civ 762

. He then said, at paragraphs 8 and 9 as follows:

“8. The Appellant clear [sic] in his application at 6.2.5 that his father and himself through part-time employment would pay for his travel to and around the United Kingdom and at 6.2.6, the Appellant said his father would pay his initial expenses such as accommodation and food. The Appellant said at 6.2.7 that Rs 5,00,000 would be available to him for the trip. I find the Appellant is dependent on third party support. In the circumstances, I find the Appellant does not satisfy TS, KS and JA such that the appeal must be dismissed for that reason. In any event, I do not accept that the Appellant's family’s socio-economic circumstances in India are consistent with the Appellant spending his father's retirement fund in order to pay for the working holiday. 9. Looking at the evidence in the round, I find it is the Appellant’s intention to come to the United Kingdom by whatever means and to remain here. For the reasons set out, I do not accept the Appellant is a genuine working holiday maker who intends returning to his own country.”

[5]In his grounds of application for permission to appeal, the Appellant contended (inter alia) that his father is not a third person and that the support of a family member does not amount to third party support. He said that, by Indian tradition, members of a family support each other. His father is employed at a sugar mill, having returned from the army. His father's earnings from the sugar mill are an extra source of income. Every source of income is available for the assistance of a family member.

[6]On 8 July 2010, Senior Immigration Judge Nichols granted permission to appeal. She considered it arguable that the Immigration Judge had erred on a point of law in finding that the Appellant could not rely on his father for financial support in order to undertake his working holiday in the United Kingdom. She considered that the Supreme Court had arguably decided otherwise in Mahad v Entry Clearance Officer

[2009] UKSC 16

[7]At the hearing on 8 December 2010, there was no appearance on behalf of the Appellant. This was not surprising since the Appellant did not have a representative in the United Kingdom or a UK-based sponsor. The Appellant was given notice of the hearing by way of the Notice of Hearing dated 9 November 2010. We were satisfied that the Notice of Hearing was properly served, as it was sent to the Appellant’s last-notified address. There was nothing to suggest that, if the hearing was adjourned, there would be representation on the Appellant's behalf on the next occasion. In the circumstances and having regard to rule 38 and the overriding objection in rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the Procedure Rules), we were satisfied that it was in the interests of justice to proceed with the hearing and we exercised our discretion to proceed with the hearing.

[8]Mr. Hopkin addressed us briefly. He appeared to have some sympathy for the argument that, following the judgment of the Supreme Court in Mahad, third party support may not fall foul of the requirements of paragraph 95. We did not hear full argument. We asked if the Secretary of State was prepared to concede that, following the judgment of the Supreme Court in Mahad, third party support was available to working holiday makers. Mr. Hopkin informed us that he would take instructions, for which purpose we allowed Mr. Hopkin a period of seven days.

[9]On 15 December 2010, the Upper Tribunal received by facsimile a letter of the same date from Mr. Hopkin. Paragraphs 3 and 4 of this letter read:

“3. I have had the opportunity to now take instructions and can confirm the position of the Secretary of State in respect of applications for entry clearance under the now defunct provision of Immigration Rule 95 and the use by those applicants of “third party support”, which is discussed in the authority Mahad v. Entry Clearance Officer [2009] UKSC 16. 4. It is accepted by the Secretary of State that such applicants are entitled to rely upon the financial support of third parties in establishing they discharge the burden of proof in meeting Immigration Rule 95(v), which requires: (v) [the applicant] is able and intends to maintain and accommodate himself without recourse to public funds; …”

Immigration Judges will be aware, of course, that they will still need to determine whether, on the facts, any third party support relied upon will in fact be available and, if so, whether on the whole of the evidence, the applicant satisfies the requirement in paragraph 95(v). (v) [the applicant] is able and intends to maintain and accommodate himself without recourse to public funds; …”

[10]On the basis of the letter from Mr. Hopkin, we are satisfied that the Immigration Judge misdirected himself in law by relying upon TS (India) and KS (India). However, the question is whether the error was material.

[11]In his letter, Mr. Hopkin confirmed his position at the hearing, that, on the facts of this case, the Appellant did not satisfy the requirements of paragraph 95(v). At the hearing, Mr. Hopkin submitted that the question of third party support was immaterial to the outcome, given the Immigration Judge’s finding that the retirement fund of the Appellant’s father was not genuinely available to pay for the Appellant's working holiday. Mr. Hopkin referred us to the Appellant's answer to question 6.2.7 of his application, where he said that he had available Rs. 5,00,000. There was a certificate from the Jalandhar Central Co-Op Bank Limited dated 12 November 2009 in the names of the Appellant's parents, which shows that the balance in their account at the close of business that day was about Rs. 1,89, 434. There was a certificate from the Employees’ Provident Fund Organisation dated 1 April 2009 which stated that the closing balance in the fund held in the name of the Appellant's father as at 31 March 2008 was Rs 3,05,607. A letter dated 6 April 2009 from the Nakodar Co-op. Sugar Mills Limited confirmed that the Appellant's father earned a monthly net salary of Rs. 10,064.

[12]We reserved our decision.

[13]Although the Respondent has conceded that third party support is available to a working holiday maker under paragraph 95 of the Immigration Rules, this issue is not material to the outcome in this particular appeal, for reasons which we will now give.

[14]The Immigration Judge's alternative finding in the final sentence of paragraph 8 of the determination is determinative of the appeal. In the Refusal Notice, the Respondent said that it was not considered credible that the Appellant would deplete the whole of his father’s retirement fund and savings in order to pay for his working holiday. In answer to question 6.2.5 of the application form, the Appellant stated that he intended to take with him Rs. 5,00,000. This sum represents the aggregate of the amount of Rs. 3,05,607, representing the entire value of his father’s retirement fund as at 31 March 2008 (as stated in the certificate dated 1 April 2009 from the Employees’ Provident Fund Organisation), and the amount of Rs. 1,89,434, representing the entire amount of his parents’ savings as at 12 November 2009 (as stated in the certificate from Jalandhar Central Co-Op Bank Limited). In other words, the Respondent was correct to say that the Appellant intended to deplete his father’s retirement fund and savings on a working holiday, leaving his parents with only a net monthly income of Rs. 10,064 (the equivalent of £103) from his father’s employment with Nakodar Co-op Sugar Mills Limited. This was strong evidence before the Immigration Judge that the funds in question were not genuinely available.

[15]The Appellant's explanation in his grounds of appeal was to say that the funds were available to him and that family members support each other. We were of the view that this explanation did not satisfactorily address the issue raised by the Respondent. In particular, the Appellant has not explained how his parents would support themselves in retirement if their retirement funds were used to pay for his extended holiday. This was a point specifically mentioned in the Refusal Notice. In our judgment, the Immigration Judge was fully entitled to find, on the evidence before him, that the financial circumstances of the Appellant's family were not consistent with the Appellant using his father’s retirement fund and savings in order to pay for his working holiday, that is, that the funds were not genuinely available. 16. Accordingly, the Immigration Judge’s misdirection on the issue of third party support did not affect his decision to dismiss the appeal.

Decision

[17]The decision of the Immigration Judge did not involve the making of an error on a point of law such that it falls to be set aside. The Immigration Judge's decision therefore stands. Senior Immigration Judge Gill Judge of the Upper Tribunal