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JF (Domestic Servant) Philippines  UKAIT 00085
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 13 May 2008
Date Determination notified: 18 August 2008
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Batiste
For the Appellant: Mr M Mullen, instructed by Messrs Lee & Tallamy
For the Respondent: Mr S Ouseley, Home Office Presenting Officer
DETERMINATION AND REASONS
|ENTRY CLEARANCE OFFICER, MANILA
1. The essential ingredients of a "household" are a property element, a family element and a living (ie home) element.
2. The essential common feature for all types of "domestic worker" is that the service provided by the employee has to be within a private household and to be personal to the employer or through him for another member of his household.
3. "Use of a household for himself on a regular basis" must require frequent or habitual use of those premises by the employer himself. Also, "use" in the context of a "household" requires that the employer lives in the premises at least for part of his time. Meeting this condition requires considerably more than the employee being the caretaker of a property owned by the employer, which he might intermittently visit, even if the property is one occupied more regularly by other members of his household.
4. A family coming to the UK can bring with them a domestic worker who has been employed by them for over a year as part of their household, whether it is a visit or is part of a one-step or phased migration. There could be some limited delay, if properly explained. It would however exclude a domestic worker who, after the family has migrated to the UK, remains in the overseas home beyond a short and properly explained time lapse, unless the property continues to be a household used by the employer for himself on a regular basis; the other requirements of the Rule have been met: and the employee will be travelling with the employer or another member of his household. [As to the significance of the connection between employer and employee see DD (paragraph 159A: connection/employment) Sri Lanka  UKAIT 00060].
- The Appellant is a citizen of the Philippines. The Respondent obtained an order for reconsideration of the determination of Immigration Judge Gillespie, who allowed the Appellant's appeal against the Respondent's decision on 30 August 2007 to refuse the Appellant entry clearance as a domestic worker in a private household pursuant to paragraph 159A of the Immigration Rules.
- The material facts are not in dispute and can be summarised as follows. The Appellant was born in the Philippines in 1983. The Sponsor and her husband, who is a British citizen, were married in the Philippines in 1997 and subsequently had two children. In 2001 the Sponsor's husband came to the UK to work in the National Health Service. At that time the Sponsor rented a home in Baguio City, where she lived with the children until 2002. In 2002 she came to the UK to join her husband and began working in the same hospital as him. The two children remained in the house in the Philippines. In February 2004 the Sponsor and her husband employed the Appellant to take care of their children and to keep the house.
- In April or May 2005, the Sponsor returned to the Philippines for two months to make arrangements to bring the two children to the UK to live here with her and her husband. An application for entry clearance was made for the children and also for the Appellant to accompany them as a domestic worker. The application by the Appellant was refused by the Respondent without any appeal being made against this decision. After the children had gone to the UK with the Sponsor, the Appellant remained in the Philippines to look after the house, which is also used since 2005 by the Sponsor's parents, when they are not in the provinces where her father is a village councillor.
- In early August 2007, the Sponsor returned to the Philippines and a new application was made on 8 August 2007, soon after her arrival, to bring the Appellant to the UK as a domestic worker under paragraph 159A. The Sponsor considered that the Rule required her to accompany the Appellant on her journey to the UK and this she intended to do. In the event the Sponsor remained in the Philippines for some three months before returning to the UK.
- As stated above, this application was refused by the Respondent on 30 August 2007 giving rise to the present appeal. The Respondent was not satisfied that the Appellant met the requirements of paragraph 159A, specifically because:-
"You state that since 2005 you have been employed by your UK employer's father. I note that your UK employer has been in the UK for a considerable amount of time and their children went to the UK in 2005. Therefore I am not satisfied that you have been employed by your UK employer for the past 12 months in a household used by them on a regular basis."
- The actual terms of paragraph 159A are as follows.
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.
The Judge's Determination
- The Judge, having heard oral evidence from the Sponsor, reached the following material conclusions.
"(b) Rule 159(ii)
The Appellant has been employed as a domestic worker for one year or more immediately prior to the application in the household, meeting the provisions of this Rule. The following requirements are essential elements of this Rule.
(i) Employed as a domestic worker.
I accept the evidence of the Sponsor who is a thoughtful and respectable person. I have no doubt that her evidence is the truth. The entry clearance officer found cause to doubt the word of the Appellant and the intentions of the Sponsor. This finding is premised upon certain portions of the Appellant's application form, which suggests that the Appellant was employed by the Sponsor's father since 2005. I am satisfied however that these reflect the practical perception of the Appellant, an unlettered person, that she was from the time the Sponsor left the Philippines employed by her father. This perception was no doubt and in all probability born of the circumstance that her wages came frequently from the hand of the father and that she was keeping house for the father and his wife. The fact remains however as the Sponsor has credibly and satisfactory described that she was responsible for the payment of wages, for rental of the household and for the continued employment of the Appellant, having previously engaged her herself as a childminder and housekeeper. On this evidence the Appellant is and has been employed by the Sponsor in United Kingdom as a domestic worker since 2004.
(ii) For one year or more immediately prior to the application.
On the evidence of the Sponsor, which I accept, the Appellant has been employed for one year or more immediately prior to the application. She was in fact employed by the Appellant [sic] for some years prior to the application.
(iii) Under the same roof as the employer
This requirement is not met - the Sponsor did not live in the household where the Appellant is employed at any time, save during periods when she might have been visiting the Philippines.
(iv) Or in a household that the employer uses for himself on a regular basis and where there is evidence of a connection between employer and employee.
This requirement is enacted disjunctively to and as an alternative to that in (iii) above and is considerably wider in ambit. Treating it purely semantically, there are two rungs to the requirement.
A. That the Appellant is employed in a household that the employer uses for himself on a regular basis. The evidence shows that the Sponsor has used this house for herself or her purposes continuously since 2001. She has rented it herself, in her own name, since 2001. She has lived in it between 2001 and 2002. She has housed her children in it between 2002 and 2005. She has employed the Appellant in it as childminder, between 2004 and 2005. She has visited it and stayed in it over a period of months in 2005 and 2007. She has maintained it when she has not been present throughout the period since 2005 using the Appellant as a housekeeper. She has used it for her purposes providing it as a home for her parents since 2004. She has on this evidence used it for herself on a regular basis since 2001 which shows a period of well over a year prior to the date of the application.
B. That there is evidence of a connection between the Sponsor in the Appellant. There is irrefutable evidence from the Sponsor of such a connection, which I accept. The connection is strong and is reflected in the foregoing summary.
I therefore hold of the two rungs of subparagraph (iv), namely that the Sponsor uses the household for herself on a regular basis and that there is connection between the employer and employee, have been met.
(c) Rule 159A(iii)
The Appellant intends to travel to the United Kingdom in the company of the employer, the employer's spouse, or the employer's minor child. The Sponsor has explained in evidence that she is aware of this specific requirement. She travelled to the Philippines in 2005 and in 2007 in order that the Appellant might travel to the United Kingdom in her company. It was clearly the intention at the time of the decision that the Appellant would travel to the United Kingdom in the company of the employer."
- It is not disputed that all the other requirements of paragraph 159A apart from these two subparagraphs were met by the Appellant. Thus the Judge allowed the appeal. The order for reconsideration was made on the basis of the Respondent's grounds of application, which were that the Judge had misdirected himself in law as to the proper meaning of the requirements of subparagraph 159A(ii).
- It was argued in the Respondent's grounds and by Mr Ousley before us that the Sponsor had stopped using the house in the Philippines for herself on a regular basis when she left in 2002. Her children had lived there up until 2005. She only visited the house once after her visit in 2005 (when she arranged to take the children to live in the UK) and that was in 2007 when a few days after her arrival the Appellant made her second application for entry clearance. In those circumstances it could not be said by a Judge properly directing himself as to the meaning of Rule 159A that the Appellant was "employed for one year or more immediately prior to the application for entry clearance as a domestic worker in a household that the employer uses for herself on a regular basis". Mr Ousley maintained that it cannot be correct to say that housing other adults thereafter in that house who are not part of the Sponsor's own household is tantamount to using those premises for herself. Thus in letting her parents use the house, however frequently, the Sponsor was not using the house for herself. The Immigration Judge had misinterpreted the Rule and had not properly considered the significance of the words "uses for himself" in sub-paragraph 159A(ii). The purpose of the Rule is to enable a family household to travel to the UK accompanied by genuine domestic workers. That explained the requirement for evidence of not less than one year of employment by the domestic worker in the Sponsor's household and additionally that the Sponsor must use the household regularly for himself. It also explains subparagraph (iii) of the Rule, which requires that the domestic worker should travel to the UK with her employer or spouse or minor child. In the year prior to the application and indeed in the year prior to that also the Appellant was employed simply as the caretaker of a property which was barely used at all by the Sponsor. Mr Ousley invited the Tribunal to conclude that the Judge had made a material error of law in his understanding of requirements of the Rule. As there was no dispute over the facts, the Tribunal should reach its own conclusions on the proper interpretation of those requirements and their application to the facts. He submitted that the Appellant's appeal against the Respondent's decision should be dismissed.
- Mr Mullen, in response, very helpfully provided us with his skeleton argument, which he expanded in his oral submissions to us. He also pointed us to section 12 of chapter 5 of the IDI, in which the purpose of the various aspects of the Rule is explained in the following terms.
"2.2 …… The purpose of the minimum period of previous employment with the employer (or with the employer's spouse or minor child forming part of the same household) is to ensure that there is a genuine existing employer/employee relationship and to prevent the recruitment of overseas domestic workers by people in the UK. A short gap in the 12 months does not necessarily disqualify the applicant unless it indicates the lack of a genuine existing employer/employee relationship.
2.3 Prior to coming to the UK a domestic worker must have been carrying out duties in a private household, i.e. under the same roof of the person receiving the services or working in a household that the employer uses himself on a regular basis and where there is evidence that there is a connection between the employer and employee.
2.4 …. Overseas domestic workers may include cleaners, chauffeurs, gardeners, cooks, those carrying out personal care for the employer or a member of the employer's family and nannies if they are providing a personal service relating to the running of the employer's household.
2.5 The domestic worker is expected to travel with the employer, his employer's spouse or his employer's minor child. However a domestic worker may be admitted if travelling independently, provided that there is no excessive time lapse and provided satisfactory evidence, e.g. a letter from the employer, is produced, explaining why he is travelling alone.
- With regard to what was meant by "used on a regular basis " Mr Mullen referred us to NG Bulgaria  UKAIT 00020 where it was said that it meant "habitually or customarily used" and was intended to ensure that there was a genuine connection between the household in which the relevant applicant was employed and his employer. He maintained that the established facts satisfied this requirement.
- Mr Mullen also referred us to the case of BO (Nigeria)  UKAIT 00053 to support his submission that if there had been a break in an established pattern of visits within the last year prior to the application for entry clearance because of a hiatus or aberration for which there was a good reason, it was legitimate to overlook it.
- With regard to "using the household for himself" he maintained that a "household" can apply to the bricks and mortar, and the IDI indicated this could cover the situation where the Sponsor was using the "employer's household" for her minor children and for her parents.
- Thus he submitted that since the Appellant was looking after the Sponsor's children during 2004-5 and her parents thereafter, it was reasonable to consider that this fell within the spirit of the Rule. When one combined this with the visits of two to three months in 2005 and again in 2007, it was plain that the Sponsor had used the property regularly for herself since employing the Appellant. There was a hiatus in her visits in 2006 but this was because of the need to take professional qualifications in the UK. However the length of the two visits in 2005 and 2007 represented a pattern of personal use that should be regarded as comparable to more numerous visits for shorter periods of time.
- Thus the Appellant satisfied the requirements of the Rule and Mr Mullen urged us to find that there was no material error of law in the Judge's determination which should be upheld.
The Interpretation of the Rule
- Essentially the two representatives disagree about the interpretation of the relevant parts of the Rule, in particular subparagraphs (ii) - and to an extent sub-paragraph (iii) to which we shall come later - and how they relate to the unchallenged facts. It is therefore to the meaning of these subparagraphs and the words and phrases used in them that we now turn. In this task we are now assisted by the guidance of the Court of Appeal in MB (Somalia)  EWCA Civ 102 as to the correct approach, which is as follows.
23. Should the plain and ordinary meaning of the rule be modified in order to give effect to a purposive construction? I accept that any rule, like any other instrument, should be construed so as to further its purpose. That purpose can usually be identified from the terms of the instrument itself. An example of a rule whose purpose can be so identified is para 289A(iv) of HC 395 which was considered by this court in Ishtiaq v Secretary of State for the Home Department  EWCA Civ 386: see para 31 of my judgment. But the purpose of para 317 is to state the requirements for indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom. Fixing those requirements involves policy questions as to which class of dependent relative should be included and on what terms. It involves striking a balance between (i) the interests of families in circumstances where dependent relatives want to join those on whom they are dependent and who are present and settled in this country and (ii) the need for an effective system of immigration control. Where that balance is struck is a matter for the Secretary of State. His judgment as to how to balance the competing interests forms the basis of the policy which finds its expression in the rules and IDIs that he publishes. The court will not interfere unless the policy is unlawful (for example because it is irrational) or its application in an individual case violates the individual's rights under the Convention.
24. There is a difficulty with the observations of Collins J in Arman Ali. The purposive construction to which he refers is a construction which avoids imposing a "greater impediment than necessary to the ability of those settled in this country to enjoy family life here". It seems to me that this fails to recognise that, although they are subject to a negative resolution by either House of Parliament, the rules are laid down by the Secretary of State "as to the practice to be followed in the administration of this Act": see section 3(2) of the Immigration Act 1971. They are statements of policy: see MO (Nigeria) v Secretary of State for the Home Department  UKAIT 00057 para 14. To say that a rule should not be construed as imposing a greater impediment to family life than is necessary simply begs the question whether an impediment is necessary. Whether it is necessary involves the policy questions to which I have referred and which are for the Secretary of State to determine. For similar reasons, I do not find the statement by Dillon LJ that the rule is one of broad humanity points the way, because that raises the question: how humane is the rule? That question too raises the policy questions to which I have referred.
25. That is not to say that, if the plain and ordinary meaning yields an absurd result, the court should not strain to avoid it. This is what Kennedy J did in Zainib Bibi. It is to be noted, however, that he assimilated the 62 year old separated mother to the class of [other] people below the age of 65, rather than to the class of widowed mothers aged 65 or over. This meant that she had to meet the stringent "most exceptional compassionate circumstances" requirement….
59. The first concerns the reasoning of Collins J in Arman Ali  INLR 89 at 102B, cited by Dyson LJ at paragraph 18. Like Dyson LJ (paragraph 24) I disagree with Collins J's insistence on a purposive construction of the Immigration Rule, if it is thought that such an approach would produce a result in any way different from the application of the Rule's ordinary language. As Dyson LJ indicates, the purpose of the Rules generally is to state the Secretary of State's policy with regard to immigration. The Secretary of State is thus concerned to articulate the balance to be struck, as a matter of policy, between the requirements of immigration control on the one hand and on the other the claims of aliens, or classes of aliens, to enter the United Kingdom on this or that particular basis. Subject to the public law imperatives of reason and fair procedure, and the statutory imperatives of the Human Rights Act 1998, there can be no a priori bias which tilts the policy in a liberal, or a restrictive direction. The policy's direction is entirely for the Secretary of State, subject to Parliament's approval by the negative procedure provided for by the legislation. It follows that the purpose of the Rule (barring a verbal mistake or an eccentric use of language) is necessarily satisfied by the ordinary meaning of its words. Any other conclusion must constitute a qualification by the court, on merits grounds, of the Secretary of State's policy; and that would be unprincipled.
- In line with this guidance and in seeking to establish the ordinary meaning of the words in the Rules, we must also bear in mind two further points. First, although we may have to examine individual words and phrases separately in the first instance to ascertain their ordinary meaning, they are all integral parts of a coherent whole and in the final analysis must be interpreted together and in the round, that is to say in their context in the Rule and indeed the Rules as a whole. Second, subparagraphs (ii) and (iii) are intended to cover a variety of different scenarios, as we shall describe. In that context whilst all the stated requirements have to be satisfied by an applicant in every case, some of those requirements would appear to have more obvious relevance to some of the scenarios than others.
Employed as a domestic worker
- The term "domestic worker" is not defined in the Rules but paragraph 2.4 of the IDI explains what the Respondent means by it in the context of this Rule. It is a relatively broad definition, which may include for example cleaners, cooks, those carrying out personal care for the employer or a member of the employer's family, and nannies if they are providing a personal service to the employer's private household. The list given is not intended to be comprehensive, but the essential common feature for all types of "domestic worker", in line with what we would understand to be the ordinary meaning of the expression, is that the service provided by the employee has to be within a private household and to be personal to the employer or through him for another member of his household. This latter extension is implicit in for example the inclusion in the list of a "nanny" whose services necessarily will be personal to a minor child of the employer in his household rather than directly to the employer himself. We shall come later to what is meant by "employer's household".
Employed for one year or more immediately prior to application for entry clearance
- The words themselves are clear and the IDI illuminates the Respondent's purpose in requiring a minimum period of this kind. Paragraph 2.2 states that the minimum period of previous employment as a domestic worker with the employer (or with the employer's spouse or minor child forming part of the same household) is to ensure that there is a genuine existing employer/employee relationship and to prevent recruitment of overseas domestic workers by people in the UK. That also is clear and informative. So too, from the terms of the Rule itself, is the requirement that the assessment must focus upon the period of one year running backwards from the date of the submission of the entry clearance application, or further if it is necessary. There is also a limited concession outside the Rules that employment with other defined members of the household of the employer (as at the time of the application) can be aggregated together in order the make up the year. This reinforces our earlier conclusion that the personal services provided by the domestic worker can be for the employer or to another member of his household.
Employed under the same roof as his employer
- The most straightforward range of scenarios to which the Rule applies is where an employer lives overseas with his household and his domestic worker but wishes to travel with them all en bloc to the UK. At one end of this spectrum this may simply be for a visit to the UK with no intention of anyone remaining here long-term. At the other end of the spectrum, it may be as part of a permanent one-step migration to the UK by the family together with its domestic worker. In these circumstances the domestic worker will have had to be working at all material times under the same roof as the employer and the service provided by the employee to the employer or to other members of his household during the course of employment must be of the personal nature implicit in the meaning of domestic worker as described above. There is therefore no need, given the purpose of the Rule, to provide for any further conditions beyond the minimum one year qualification period in subparagraph (ii), and the need for the employee to travel at the same time as the employer or another member of his household as per subparagraph (iii) – and the Rule does not do so.
Employed in a household that the employer uses for himself on a regular basis
- This is an alternative requirement to that of being employed under the same roof as the employer, and it is there in the Rule to enable entry into the UK for a domestic worker in other scenarios than those described in paragraph 20 above. For example, there could be a phased migration by a family to the UK, where one family member comes on his own first, to get established here, and then is joined in due course by other members of the family together with their domestic worker who has been looking after them. Another example is where the employer's whole family is resident in a household in the UK but he maintains a home overseas which is used regularly by them and where the domestic worker is employed to look after the employer and the members of his household when they are there. Another scenario is where (in a country where polygamy is legal) a sponsor may have two wives and their respective children, each living in separate homes, one in the UK and the other overseas, with the Sponsor moving between them. These examples are not intended as a comprehensive list but describe situations with which we are commonly faced in our jurisdiction. For these scenarios, subparagraph 159A(ii) introduces additional safeguards to ensure that the Rule is not misused by persons living in the UK in order simply to recruit overseas domestic workers thereby circumventing other parts of the Immigration Rules.
- These additional safeguards comprise two separate components, both of which must be satisfied. The first is the domestic worker must be employed in a "household of the employer", which, as it is distinguished from working "under the same roof as the employer", necessarily implies that an employer's household may embrace two separate properties. The second is that the employer must use his household in which the domestic worker is employed "for himself on a regular basis". This can only, in its ordinary meaning, be in distinction from working in a property which is part of the employer's household but is not used regularly by the employer for himself, even though it may be used by other members of his household.
- At this point we need to be clear about what is meant by the term "household". It is not defined in the Rules. So what is its ordinary meaning? The Oxford English Dictionary describes it "as the people living in a house, especially a family." This definition could potentially extend to employees who live with and look after the family who live in the house. However the property element, the family element and the living (ie home) element are the essential ingredients in the meaning of a "household" for the purpose of this Rule. Thus an employee who works for the family but lives elsewhere is not a part of their household. Nor can the term "household" apply to the bricks and mortar alone. It is a family living a property that creates the nucleus of a household.
- In relation to the family element, it means members of the employer's family who normally live together. Thus the household of an employer could embrace the employer, his spouse and the children who are part of the same family unit (i.e. not divorced, separated or living independently). It may embrace them even if some of them may from time to time live away from the main house used by the employer, e.g. where children are at a boarding school, or where some family members are still living abroad as part of the process of a phased migration. It could also embrace a situation where an employer has two separate households in different countries with (in countries where polygamy is permitted) wives and children in each. It does not exclude the possibility of other family members being part of the employer's household, provided they are part of the family unit that normally lives together and they do not form a separate household of their own.
- This definition as described above is the ordinary meaning in which the word "household" is used in the Rule.
- There is however an additional and important safeguard to achieve the purpose of the Rule. The domestic worker, if he does not work under the same roof as his employer, must be employed in a household which the employer uses for himself on a regular basis. Mr Mullen referred us to paragraph 2.2 of the IDI where there is talk of the employer, or his spouse, or his minor child "if they form part of the same household", and argued that this implied that services provided regularly by a domestic worker to any member of the employer's household can be counted as regular use of those services by the employer himself. However the reference in the IDI is only in the context of being able to take into account previous employment with another member of that household, and is in any event a concession outside the Rules. There is nothing in this Rule to suggest, as Mr Mullen has submitted, that other family members, be they members of the employer's household or otherwise, can be substituted for the employer in satisfying the ordinary meaning of the unambiguously stated qualification that the employer must use the household "for himself" on a regular basis.
- Moving on then to what is meant by use on a "regular basis", we have been assisted by the Tribunal's guidance in the two cases to which we were referred by Mr Mullen.
- In NG Bulgaria, the Tribunal held as follows.
12. The term "regular" which appears in paragraph 159A(ii) is not defined in the Immigration Rules. It does not appear in the interpretation section at paragraph 6 of the Rules. It is therefore to be interpreted in accordance with its ordinary dictionary meaning, giving the Immigration Rules a purposive interpretation, rather than seeking to interpret them with the strictness that might apply if they were statutory provisions. In this regard, we have given consideration to the definition of the word "regular" which appears in the current edition of the New Shorter Oxford English Dictionary. The dictionary definition sets out a range of different meanings, but for present purposes the only meanings which are arguably relevant are those which appear in paragraphs 3 and 4 of the definition respectively. At paragraph 3, the following definition appears:
"Recurring or repeated at fixed intervals, recurring at short uniform intervals. Habitually or customarily used, received or observed; habitual, constant".
At paragraph 4, "regular" is defined as meaning:
"Observing fixed times for or never failing in the performance of certain actions or duties."
13. Stated shortly, Mr Stanage's submission was that for the purposes of paragraph 159A(ii), use of a household "on a regular basis" did not require that such use should be frequent. He did not offer any suggestion as to what else the expression might be intended to mean in this particular context. Mrs Petterson, on the other hand, adopted the opposite submission, namely that in this context, "regular" implied frequent or habitual.
14. We have little (if any) hesitation in preferring the latter submission. In some contexts, an event may properly be described as happening "regularly", even though it happens infrequently. To adopt the example which was raised during the course of argument before us, Halley's Comet comes close to the Earth once in every 76 years. The reappearance of the Comet is an event which can be predicted with a high degree of accuracy many decades, indeed centuries, in advance. To that extent, the appearance of the Comet may fairly be described as one which takes place "on a regular basis".
15. However, that is plainly not the meaning that the expression "on a regular basis" is intended to bear in the context of paragraph 159A(ii). On the contrary, it is clearly intended to bear the alternative meaning contained in paragraph 4 of the dictionary definition set out above, namely "habitually or customarily used". That was the view adopted by the Designated Immigration Judge, albeit not in precisely those terms. It is a view which in our opinion he was right to adopt. The purpose of the reference to "on a regular basis" in paragraph 159A(ii) is to ensure that there is a genuine connection between the household in which the relevant applicant is employed as a domestic worker and his employer. That 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 described 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.
- We agree. Thus, to satisfy "use of a household for himself on a regular basis" must require frequent or habitual use of those premises by the employer himself. Also, as indicated in paragraph 23 above, "use" in the context of a "household" requires that the employer lives in the premises at least for part of his time. Meeting this condition requires considerably more than the employee being the caretaker of a property owned by the employer, which he might intermittently visit, even if the property is one occupied more regularly by other members of his household. Nor would it extend for example to an employee who works for an employer as a cleaner in a block of flats which the employer lets out for money. It requires in plain terms the regular (i.e. habitual and customary) use of a home by the employer personally. It is that which establishes the connection between the employer and the employee and which provides a significant protection against the abuse of this Rule by those in the UK who wish to employ a foreign domestic worker in circumvention of other Rules. Mr Mullen submitted that less frequent but longer stays should be given at least equal if not more weight than more frequent but shorter trips. We would not be prescriptive. The proper approach is to assess whether on the evidence in any particular case the personal presence of the employer in that household can properly be described as regular.
- This approach was adopted and developed in BO Nigeria to cover the separate problem, which might arise if in the year immediately prior to the application for entry clearance there was for a good reason a temporary and untypical interruption in the frequent or habitual use of the premises by the employer. The Tribunal said as follows.
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 in Nigeria to a short period before the application, such as to the hiatus in June 2006 due to pregnancy, as Mr Ousley 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, subparagraph (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.
10. In this case the Appellant made her application on 16 June 2006 and her employment with the Sponsor began at some unspecified date in 2004. The Immigration Judge, in paragraph 5(e) of the determination assessed the evidence before him of the Sponsor's visits in the 16 month period from March 2005 to June 2006 as follows. There was one month from March 2005. There were two months between July and September 2005. There was a further month from December 2005 to January 2006. Finally, in May 2006, there was a one month visit until June 2006. Thus in the period of 16 months from the beginning of 2005 until June 2006 the Sponsor had spent a total of five months at her home in Nigeria, where the Appellant was employed and included in that period was a temporary hiatus when the Sponsor was pregnant.
- Again we agree. There is nothing in this approach which diminishes the fundamental importance of there being a minimum period of one year's employment in the employer's household immediately prior to the application for entry clearance, and of the need for regular use of that household by the employer himself. Having said that however, even here the Respondent has in paragraph 2.2 of the IDI allowed for a little discretionary flexibility outside the Rules consistent with his overall purpose if there is a short break in the period of employment which overall exceeds one year.
And where there is evidence that there is a connection between employer and employee.
- This is the final aspect of sub-paragraph (ii) and there may be a superficial ambiguity in what it means. After all, if there is an employment contract, oral or written, between an employer and an employee there must by definition be some connection between them. The employee at the least will provide the services specified by the employment contract and in return the employer will pay wages to the employee. However this limited interpretation would make these words in the Rule entirely superfluous, which would be unlikely. The ordinary meaning of this requirement is to stress the need in cases under this Rule for clear evidence of the connection between the employer and the employee, having regard to all the matters that we have described above.
- That then is our assessment of the ordinary meaning of sub-paragraph 159A(ii) and how it should be interpreted when considering the facts in any individual case.
- Sub-paragraph (iii) was not raised in the Respondent's grounds and will not therefore form any part of our assessment of whether the Judge erred materially in law in his determination. However it will be relevant if we conclude that the Judge did so err and we have to reach our own assessment. It was therefore canvassed with the representatives in the course of their submissions.
Intends to travel to the UK in the company of his employer, his employer's spouse or civil partner or his employer's minor child
- This requirement is potentially ambiguous. On the one hand it could mean that the domestic worker when first coming to the UK must travel with a member or members of the employer's household at the same time as they visit or migrate to the UK. On the other hand it could simply mean that a member of the employer's household must accompany the domestic worker when first coming to the UK, as the Sponsor believed and Mr Mullen has urged upon us.
- The purpose of the Rule, as we have described, is to prevent the recruitment of overseas domestic workers by people in the UK in circumvention of other Rules. When this requirement is applied for example to temporary visits by an overseas resident and his family to the UK with his domestic worker, its importance is obvious. It is visible evidence of the connection between the employer and the employee. It will also serve, in this and other scenarios, to enable the authorities at the point of entry establish more readily and reliably the entitlement of an individual domestic worker to enter the UK under Rule 159A. This is why it only applies on the first visit. In effect it is a reinforcement of the demand in subparagraph (ii) for good evidence of the relationship.
- The IDI in paragraph 2.5 confirms our understanding of what is meant. It re-states that the domestic worker when first coming to the UK is expected to travel with members of the employer's household. It offers a concessionary relaxation outside the Rule that the domestic worker may be admitted if travelling independently. Then it introduces two important qualifications. The first is that the domestic worker must produce satisfactory evidence from the employer explaining why he is travelling alone. That is neutral to the ambiguity and could apply equally on either interpretation. The second qualification is that "there is no excessive time lapse". That can only mean in context a lapse of time after the relevant member of the employer's household has come to the UK.
- This means that a family coming to the UK can bring with them a domestic worker who has been employed by them for over a year as part of their household, whether it is a visit or is part of a one-step or phased migration. There could be some limited delay, if properly explained. It would however exclude a domestic worker who remains in the overseas home beyond a short and properly explained time lapse after the family have left for the UK. Thus a person who, after a family has migrated to the UK, becomes effectively a caretaker of the property for a period of time cannot take continue to advantage of the Rule unless it can be demonstrated that the property continues to be a "household" which the employer has continued to use for himself on a regular basis after the migration; that all the other requirements of the Rule have been met; and that the employee will be travelling with the employer or another member of his household to the UK on a separate occasion.
- This interpretation of sub-paragraph (iii) is consistent with that of sub-paragraph (ii) in the sense that the interpretation of the words of sub-paragraph (iii) help to see that sub-paragraph (ii) means what we say. The employee who does not (need to) travel with the employer is perhaps unlikely to be a member of a relevant household of the employer. It is on this basis that we now go on to assess whether the Immigration Judge erred materially in law in the determination.
Material Error of Law
- Mr Mullen accepted, when asked by us, that the Appellant was employed from February 2004 until April/May 2005 to take care of the Sponsor's two children and to keep the house in the Philippines, but thereafter, when the children had moved to the UK, the Sponsor only kept the house. It had been the intention of the Sponsor to bring the Appellant to the UK with the children in 2005 but this was thwarted by the refusal of the Respondent of her application for entry clearance. We do not know the reason for this refusal but that is not material. What matters is that there was no appeal against this decision. This is material because the Appellant's position in terms of her employment changed significantly from that point onwards.
- In April/May 2005 the Appellant was looking after the Sponsor's and her husband's two minor children for them. The Sponsor and her husband had continuing joint custody and control of those children, and organised and financed the arrangements for them. The minor children were a part of the Sponsor's household even if they were temporarily living apart from the Sponsor and her husband, as a consequence of the three-stage phased migration of the family to the UK. The Appellant had been recruited by the Sponsor in 2004 and the Sponsor herself stayed at the home in the Philippines for two months in 2005. Thus it may be that at that time (i.e. in April/May 2005) the Appellant had been employed for one year or more as a domestic worker in a household which the sponsor used for herself on a regular basis and where there is evidence that there is a connection between the Sponsor and the Appellant.
- However, as we have said, the Appellant did not appeal against the refusal of her entry clearance application in 2005. She remained to look after the house in the Philippines, whose main users then were the Sponsor's parents, who have their own household, a separate family unit from that of the Sponsor, in the provinces. The Judge was required to look at the situation as it was in August 2007, by which time over two years had passed since the earlier decision.
- The Judge's analysis is contained in paragraph 5 of the determination. He accepted that there was a contract of employment for more than one year immediately prior to the application for entry clearance. His reasoning in subparagraph 5(b)(iv)A was that the Sponsor had used the house for herself or her purposes continuously since 2001. It was rented in her name. She lived in it between 2001 and 2002. She had her children in it between 2002 and 2005. She employed the Appellant as a childminder between 2004 and 2005. She visited it in 2005 and 2007. She maintained it when she was not present, using the Appellant as a housekeeper. She used it for her purposes, providing it as a home for her parents since 2004. On this evidence she used it for herself on a regular basis since 2001 and this usage shows a connection between the Sponsor and the Appellant. On this reasoning, he concluded that the Appellant has satisfied the requirements of subparagraph (ii) of the Rule.
- Essentially we agree with Mr Ousley that this reasoning by the Judge is inadequate and reveals material errors of law for the following reasons.
1. The Judge's analysis of the facts described above misses out important elements that should have been factored into his assessment. In particular he overlooked the context that many of the events relied upon by him to establish a pattern of usage by the Sponsor were part of a phased migration to the UK by the Sponsor's family which began in 2001, when the Sponsor's husband left for the UK (at which point the Sponsor rented property in which she and children lived until the migration was complete) and ended in 2005. The Sponsor herself left for the UK in 2002 to join her husband. She returned in 2005 in order to bring her children to the UK and thus complete the family migration. The Appellant did not accompany the family on its migration in 2005 and the two years that passed until the second application for entry clearance is plainly an excessive time lapse to enable her in 2007 to claim to be a part of that migration under subparagraph (iii) of the Rule.
2. The Appellant can therefore only succeed if she can show that in the year immediately prior to her second application in August 2007 she was employed as a domestic worker in a household which the employer used for herself on a regular basis. The usage of the property prior to the departure of the children in 2005 is clearly not reliable evidence of the Sponsor's pattern of usage of the property after the migration was complete. The nature of the Appellant's contract of employment altered materially after the children left for the UK in 2005. Prior to that her primary responsibility was to look after the Sponsor's children in a household of the Sponsor. After 2005 the house was used by the Sponsor's parents when they were in the city. But they were not members of the Sponsor's household. They had their own separate household in the provinces where the father was a councillor. Indeed, although the Judge was entitled to conclude in sub-paragraph 5(b)(i) of the determination that the Appellant was in fact always employed by the Sponsor from the UK, it is nevertheless instructive that the Appellant herself considered she was employed by the Sponsor's father. The Judge said that this reflected the practical perception of the Appellant. Quite so! This perception as to the nature of her work reflects the reality of her role. A reasoned assessment was required from the Judge as to whether the property in the Philippines could, on the ordinary meaning of the Rule, even constitute a household of the Sponsor after her children had left it, as opposed to being only a property owned by the Sponsor for the benefit of her parents. There was no such analysis.
3. The Judge also failed to take into account in his reasoning the important fact that the Sponsor left the Philippines in 2005 with her children on completion of the family migration to the UK, and did not return until August 2007, some two years later, when within a few days the Appellant's second application for entry clearance was made. Thus the Sponsor used the property for herself for less than a week in the two years prior to the submission of the second entry clearance application and even then the last use was not part of any regular pattern, but was for the purpose of bringing the Appellant to the UK. It is difficult to see how, in the absence of clear findings of fact to explain this lengthy and unbroken absence, this very limited usage is consistent with "use by the Sponsor for herself on a regular basis". It is suggested to us by Mr Mullen that this was some hiatus caused by the need to take qualifications in the UK in 2006. That may be so, but there are no findings of fact or conclusions by the Judge in the determination on this point, and it is a very material omission.
- For these reasons we consider that the Judge erred materially in law and that his decision must be set aside, though his findings of fact, which are unchallenged, can be maintained.
- Given the established findings of fact, we are now in a position to be able to cure the errors of law in the determination by reaching our own conclusions on the basis of the interpretation of the Rule which we have set out above.
- As we have said, we are not assessing the position as it was in 2005 when the first application for entry clearance was made. It may be that at that time the Appellant may have been employed for just over a year as a domestic worker in a household which the Sponsor used for herself on a regular basis and where there was evidence of a connection between the two of them sufficient to satisfy subparagraph (ii) of the Rule. It may be that there were other factors leading to the refusal and the Appellant's decision not to appeal against it. We do not know the basis of the refusal at that time and we cannot speculate either about the reason for it, or why the Appellant did not then appeal. We have to looking at the position as it was in August 2007 when the second application for entry clearance and the Respondent's decision on it were made.
- The lapse of time since the family migration in 2005 is far too excessive to enable the Appellant to be considered as a part of that migration. The last members of the sponsor's family to migrate to the UK did so in 2005. The Appellant did not accompany them. There is no satisfactory explanation for the two-year time lapse in making the second entry clearance application.
- The Appellant was employed in 2004 in the final year of a four year process of phased immigration to the UK by the Sponsor, her husband and their minor children. She was then employed to work in a house owned by the Sponsor to look after the children after the parents had left for the UK. It could then have been described as a part of the Sponsor's household. The Appellant worked there in that capacity for just over 12 months, at which time the children left to join their parents in the UK. Thereafter, the nature of the Appellant's contract of employment was quite different. She was no longer a nanny to the sponsor's children. The services she provided on a personal basis were to the Sponsor's parents, who were not members of the Sponsor's household. Even though the Appellant continued to be paid by the Sponsor, the Appellant was in reality from 2005 the caretaker of a property owned by the Sponsor but used by her parents, rather than being a domestic worker in a household used by the Sponsor herself on a regular basis. In the two years prior to the submission of the application in 2007, the Sponsor lived in the property for only a few days right at the end and in that time was engaged in helping the Appellant, who is herself, unlettered, to make her application. This does not in our view constitute frequent and habitual use by the Sponsor, but was in reality an attempt by people whose lives and family were by then focused in the UK to recruit an overseas domestic worker in circumvention of the Rules.
- It may be, as submitted by Mr Mullen, that during 2006 the Sponsor and her husband were engaged in taking professional qualifications in the UK. However this in our judgement reflected the changed reality in their circumstances following the migration of their family here. Their family focus and interests had changed and were thereafter based in the UK. This in our assessment explains why in the two years they did not visit the Philippines for even a short time consistent with their studies. This falls far short of showing that the house in the Philippines was part of the sponsor's private household, which the Sponsor used on a regular basis for herself in the one year or more prior to the application for entry clearance in 2007, as required by the Rule.
- So far as sub-paragraph (iii) of the Rule we accept that the Sponsor intended to travel to the UK with the Appellant in 2007, but this does not avail her given our findings in relation to subparagraph (ii).
- We therefore conclude that the Appellant has failed on a balance of probabilities to discharge her burden of proof that she meets all the requirements of paragraph 159A of the Immigration Rules.
- Thus we have decided to dismiss the Appellant's appeal against the Respondent's decision of 30 August 2007.
The Immigration Judge made a material error of law. The following decision is accordingly substituted:
"The Appellant's appeal against the Respondent's decision of 30 August 2007 to refuse entry clearance is dismissed."
Signed Dated 12 August 2008
Senior Immigration Judge Batiste
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Heard at Field House
On 13 May 2008
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Batiste
ENTRY CLEARANCE OFFICER, MANILA
The Tribunal is satisfied, in view of the Appellant's success before the Immigration Judge, that her costs in respect of the application for reconsideration by the Respondent, the preparation for reconsideration and the reconsideration are to be paid out of the relevant fund, as defined in Rule 33 of the Asylum and Immigration Tribunal (Procedure) Rules 2005
Signed Dated 12 August 2008
Senior Immigration Judge Batiste
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