The Entry Clearance Officer, Lagos v Taiwo Apome Wusa [2011] UKUT 482 (IAC)

[2011] UKUT 00482 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Date 31 October 2011
THE IMMIGRATION ACTS
Before
Mr C M G Ockelton, Vice PresidentSenior Immigration Judge Macleman
Between
THE ENTRY CLEARANCE OFFICER, LAGOSAppellantTAIWO APOME WUSARespondentMr A Mullen, Senior Home Office Presenting Officer for AppellantMr Adetayo Ayodele Adeniyi, the appellant’s employer for RespondentThe requirement of a connection between employer and employee in paragraph 159A(ii) of the Immigration Rules, when it applies, is a requirement of a connection going beyond that of employment.DETERMINATION AND REASONS
[1]The Entry Clearance Officer, Lagos has permission to appeal to this Tribunal against the decision of Immigration Judge Kempton allowing the appeal of Ms Wusa, whom we shall call “the claimant”, against his decision on 12 November 2010 refusing her entry clearance to the United Kingdom as a domestic worker. Before us, as before the First-tier Tribunal, the claimant was represented by her employer, Mr Adeniyi, who was able to describe the relevant facts.[2]The claimant is employed as a domestic worker in a house in Nigeria which belonged to the father of Mr Adeniyi’s wife. His wife is the oldest of the family. Mr Adeniyi told us that her five siblings still live in the house. Mr Adeniyi’s wife came to the United Kingdom, and he followed her. That was in 2005, and that was the last time that either he or his wife lived in the house. They returned in 2006 for about two weeks, and in 2009 for about two weeks. In 2006 they took steps to employ a housekeeper, and they employed the claimant. They had not previously met her: the relationship is purely that of employer and employee. Mr Adeniyi now seeks to be able to have her as his domestic help in the United Kingdom, in particular because of the help she will be able to give while his son is growing up here; the claimant has not yet met his son.[3]In order to succeed in this appeal, the claimant needed to show that, at the date of the decision against which she appeals, she met the requirements of paragraph 159A of the Statement of Changes in Immigration Rules, HC 395:
“Requirements for leave to enter as a domestic worker in a private household 159A. The requirements to be met by a person seeking leave to enter the United Kingdom as a domestic worker in a private household are that he: (i). is aged 18-65 inclusive; (ii). has been employed as a domestic worker for one year or more immediately prior to application for entry clearance under the same roof as his employer or in a household that the employer uses for himself on a regular basis and where there is evidence that there is a connection between employer and employee; (iii). that he intends to travel to the United Kingdom in the company of his employer, his employer’s spouse [or civil partner] or his employer’s minor child; (iv). intends to work full time as a domestic worker under the same roof as his employer or in a household that the employer uses for himself on a regular basis and where there is evidence that there is a connection between employer and employee; (v). does not intend to take employment except within the terms of this paragraph; and (vi). can maintain and accommodate himself adequately without recourse to public funds; and (vii). holds a valid United Kingdom entry clearance for entry in this capacity.”
[4]The claimant’s difficulties centre on sub-paragraph (ii). There is no doubt that she had not been employed for a year “under the same roof” as her employer. The question is whether she had been employed for a year or more in a household that he (or he and his wife, because they are jointly her employer) uses for himself on a regular basis, and where there is evidence of a connection between employer and employee.[5]The Immigration Judge said that there was a connection “by virtue of the availability of the payslips”, that is to say the documents apparently evidencing the claimant’s pay as employee. So far as concerns the other requirement, the Immigration Judge ignored the various authorities on the meaning of this paragraph of the rules. She said “loosely, his [that is to say, the employer’s] use of the house has been regular and the intention is to be regular. The sponsor has been the employer for over four years and paid the appellant’s wages regularly. I consider that looking at the whole circumstances of this case, the appellant has been working in a household which the sponsor as employer uses regularly.”[6]The Entry Clearance Officer’s grounds of appeal set out the authorities on the meaning of “household” and “regularly”: he cited JF (Domestic Servant) Philippines [2008] UKAIT 00085, NG (Bulgaria)[2006] UKAIT 00020 and BO (Nigeria)[2007] UKAIT 00053.[7]Mr Adeniyi’s submission to us was that he regards the house in Nigeria as his household or one of his households. He is responsible for the people that live there. But although on that basis the claimant has been a member of his household for five years now, he was not able to tell us very much about her. In particular, he thought that she gave a lot of her 10,000 Naira per month wage to family members, whereas her application form says that she does not give any of her wage to family members; and, bearing in mind that, under her contract of employment, he provides her with accommodation and food, he was unable to say how her living expenses of 600 Naira per month, set out in her application form, arise.[8]As JF holds, “household” is not synonymous with “house”. The house in Nigeria may well belong to Mr Adeniyi and his wife: that does not mean that it is their household. There is a household there: but in our judgement it cannot be said that it is theirs or that they use it on a regular basis. They have slept there for only one month in total since they effectively settled in the United Kingdom five years ago. Their visits are neither reasonably frequent nor are they on the basis of habitual use. JF decided that the visits would need to have those characteristics in order to be “regular”. But even if “regular” meant “at precisely defined intervals”, their visits do not meet that requirement.[9]That is sufficient to dispose of this appeal, but we must say also something about the requirement that there be a “connection between employer and employee”. The Immigration Judge evidently thought that nothing more was required than the connection which was the employment. That cannot be right. Paragraph 159A is perfused with the requirement of employment: the connection between employer and employee must be something over and above that arising from the employment. The connection between employer and employee is not required where the employee has lived under the same roof as the employer for a period of at least one year, although, of course, employment still is. What clearly is required is some tie going further merely than the contractual one of employment, where a domestic worker seeks entry clearance other than on the basis of previous co-residence. We hesitate to give examples, for fear of prejudicing future cases, but clearly a person who has acted as nanny to one child of a particular employer might be able to show such a connection in relation to a subsequent child. What is clear is that no connection outside employment exists in the present case. That is a further reason why the claimant’s appeal cannot succeed.[10]Mr Adeniyi told us that he thought he and his wife had done everything that they ought to do in terms of the advice given on the UKBA’s website. We are concerned with applying the Immigration Rules, in order to determine whether the decision was, or was not in accordance with them. For the reasons we have given it is clear to us that the Entry Clearance Officer’s decision was in accordance with the Immigration Rules. The claimant’s application had to be refused, because she did not meet the requirements of those rules. The Immigration Judge erred in her approach to the Rules and to the meaning of the terms in paragraph 159A (ii). We set aside her determination. We re-make the Tribunal’s decision. The claimant’s appeal is dismissed. Signed C M G OCKELTON VICE PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER