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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> DD (paragraph 159A: connection, employment) Sri Lanka [2008] UKAIT 00060 (25 July 2008) URL: https://www.bailii.org/uk/cases/UKIAT/2008/00060.html Cite as: [2008] UKAIT 00060, [2008] UKAIT 60 |
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DD (paragraph 159A: connection/employment) Sri Lanka [2008] UKAIT 00060
Date of hearing: 15 July 2008
Date Determination notified: 25 July 2008
DD |
APPELLANT |
and |
|
ENTRY CLEARANCE OFFICER, COLOMBO | RESPONDENT |
(1) The requirement in paragraph 159A(ii) of the immigration rules that there be evidence of a connection between the employer and the employee is of particular importance. It will be a question of fact in each case whether the requisite connection is proved. Although the connection will usually spring from the fact of employment in the employer's household, something more than a mere employer-employee relationship and presence in such a household is required.
(2) Paragraph 159A(ii) does not require the employee to have been continuously employed by the employer, provided that the totality of the periods of employment amounts to at least a year. It is, however, extremely unlikely that occasional or irregular employment will enable an employee to show a sufficient connection with the employer.
"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 [sic] 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."
."I am satisfied that the appellant has acted for a carer for the sponsor [employer] when he has been in Sri Lanka and that there is evidence of a connection between the sponsor and the appellant in this regard. The evidence falls short of meeting the [requirements of paragraph 159A] because the reality is that the evidence only proves, if I accept it which I am prepared to do, that the appellant has cared for the sponsor during his visits and has been paid for this time only. The proposal now is that the appellant should become a full-time carer paid every month once she arrives in the United Kingdom with the sponsor".
"… but goes to the flat to care for the sponsor when he is there and is paid during these periods. This does not equate to continuous employment even if I were to accept the submission made by Counsel for the appellant, Mr Fripp, that the payments amount to more than what a Sri Lankan carer would earn in a year. The issue is not how much the appellant is paid but whether the employment is continuous and sufficient in the circumstances to meet the above requirements".
"[this] requirement would scarcely be served if it were sufficient for the employer to use that household only on an infrequent basis. By way of example, it might be argued that attendance at the household on but a single occasion each year on 25 January to celebrate Burns Night could properly be describes as 'regular attendance', but only in the sense of being attendance which recurred at a fixed interval, and clearly not in the sense of being attendance for habitual or customary use. In the context of paragraph 159A(ii), it is plainly the latter sense in which the term is being used" (paragraph 15).
"8. In considering these submissions, we would first observe that there is no justification in the wording of the Rule to limit consideration of the use by the Sponsor of her home inNigeria to a short period before the application, such as to the hiatus in June 2006 due to pregnancy, as Mr Ouseley has sought to do. The purpose of the Rule is to enable an employer who has employed a domestic worker for at least a year in a home overseas which he/she uses on a regular basis, to bring that employee to the UK to work for him/her here. The Tribunal in NG was concerned with a potential ambiguity in the meaning of 'regular', as to whether it could embrace the infrequent occupation of a home but in a regular pattern. It correctly concluded that it did not. That clearly reflects the purpose of the Rule. It is not about property rights but about the establishment of a connection between the employer and the employee, and it says so expressly in sub-paragraph (ii).
9. To establish the evidence of such a connection, sub-paragraph (ii) requires that the employee should have been employed by the employer for one year or more immediately prior to the application for entry clearance. To assess whether an adequate connection has been made, an immigration judge should therefore look at least at the final year of the relationship but may also take into account a longer period to ascertain the extent of the connection, and should do so if there is some temporary aberration in the final year from the established long-term pattern".
Decision
(1) The appeal under the immigration rules is allowed.
(2) We direct the issue of entry clearance to the appellant under paragraph 159A of the immigration rules.
Signed Date
Senior Immigration Judge P R Lane