AG (Working holidaymaker: ‘incidental’) India [2007] UKAIT 00033

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Heard at: Manchester                                                            Date of Hearing: 12 January 2007
Promulgated: 27 March 2007
Before:

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Designated Immigration Judge McClure
Immigration Judge P G J White

Between

Appellant
and

THE ENTRY CLEARANCE OFFICER, NEW DELHI
Respondent

Representation
For the Appellant:		Mr Yusuf, of Yusuf & Co. Solicitors
For the Respondent:		Mr O’Leary, Home Office Presenting Officer 

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.  

DETERMINATION AND REASONS

1.	The appellant, a citizen of India, applied for entry clearance to the United Kingdom as a working holiday-maker for a period of one year.  His application was refused on 10 February 2006.  He appealed to the Tribunal and, following a hearing before an Immigration Judge on 7 September 2006, his appeal was dismissed.  The appellant then applied for and was granted an order for reconsideration.  Thus the matter comes before us.  

2.	The relevant Immigration Rules are those contained in paragraph 95 of the Statement of Changes in Immigration Rules HC 395, which we do not need to set out in full.  It does, however, contain requirements that the applicant:

	“(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”.

3.	If the requirements of the Rules are otherwise met, entry clearance and accordingly leave to enter, will be for a limited period not exceeding two years.

4.	The Notice of Refusal issued to the appellant indicates that the respondent was not satisfied that the appellant met the requirements of sub-paragraphs (iv), (v), (vi) or (viii) of paragraph 95.  The Immigration Judge found at paragraph 11 of her determination that the appellant met the requirements of sub-paragraph (iv).  She also found that the sponsor, the appellant’s uncle, was willing and able to accommodate him during his stay:  that appears to be a finding that the appellant met the requirements of sub-paragraph (v).  We need to set out in full the part of her determination in which she deals with the other issues.  

	“15.	The real issue in this case in my view is whether the appellant intended to take employment only incidental to a holiday.  I do not find the answer easy because although the Rules say that a person may work for 12 months that work must still be incidental to the holiday and the IDI requires the holiday to be the main reason for coming here.

	16.	The sponsor stated that the appellant would work ‘as he needed’ and that this would be for personal expenses such as drinks.  He would not work for more than 15 to 25 hours per week.  He did not envisage that he would go off on his own other than to stay with family members.  The prospective employers state that the appellant would work for 15 hours per week, the times to be agreed.  Even if the appellant were to work for only 15 hours and paid the minimum wage as promised by the employer, he would earn £300 per month as opposed to the £62 he receives from his father.  If he worked for 25 hours he would earn £500 per month.  This seems to me to amount to far more than pocket money for incidentals and would allow him to acquire substantial savings by Indian standards.  The sponsor works full time and given that the appellant apparently had not plans to go off alone I find it far more likely than not that he planned to work for the full 25 hours per week throughout most of his stay here.

	17.	It is not clear from the Rules or the IDI whether a person who is not planning to stay for the full two years may nevertheless work for 12 months.  It seems to me that each case must depend on its own facts.  There are situations where the only way a person may visit another country for any length of time can do so only by funding the cost of the trip through working.  In this situation I would consider that even so the work was incidental because it supported the holiday.  This is not the position here however.  The appellant is not having to pay for board and lodging or family outings; at most he is having to pay for personal incidentals.

	18.	I accept it is important for the appellant to spent time with his family in the UK and I am sure that they will take him out and about here during their free time.  However I find in this case that the employment would not be incidental to the holiday.

	19.	I have considered whether the fact that the appellant would be able to take back substantial savings by the standards of his own country prejudices him compared with say an Australian where such sums would be irrelevant and would probably not be taken into consideration in one’s findings because there is not such a difference in earnings between the countries, but for that very reason such a situation is unlikely to arise.

	20.	I have also considered whether my findings prejudice the appellant because he has family here who are willing to support him, but I do not think that they do.  The situation is that the appellant does not have to work to fund his holiday.  He has not given any explanation how working for a friend of the family as a labourer would benefit him in cultural terms and I cannot see that it would.  Thus my view that he is coming here mainly to work is reinforced.  This in turn leads me to conclude that the appellant did not intend to leave the UK after 12 months.”

There is no other reference to the requirements of sub-paragraph (viii).  

5.	Before us Mr O’Leary on behalf of the respondent produced a skeleton argument dated the day before the hearing.  We shall have to return to some of its submissions in more detail, but we turn first to the part entitled “The issues for reconsideration”.  That part of the skeleton identifies two issues, the first by reference to sub-paragraphs (vi) and (viii).  The skeleton submits that even if it is accepted that the appellant met the requirements of sub-paragraph (vi), 

“7.	There are issues raised by the ECO in the refusal of 10 December 2006 as to whether the appellant intends to return to India at the end of his working holiday.  In particular, the ECO asserts 

(a)	The appellant is not essential requirement to the work of his father’s farm
(b)	The appellant has failed to satisfactorily explain the benefits of taking part in the Working Holidaymakers Scheme.  
(c)	The appellant’s account of his circumstances in India have not demonstrated on the balance of probabilities that he intends to return to India.  In particular, the fact that the appellant has given up his employment, he has little in the way of prospects or return, and that he intends to spend an unknown amount of money on his holiday.

 8.	It is submitted that the above amount to sufficient reasons as to why the appellant has failed to demonstrate that he will return to India at the end of his working holiday.”

6.	At the hearing we reminded Mr O’Leary of the terms of Rule 30.  He readily accepted that the skeleton argument was out of time insofar as it amounted to a notice under that Rule.  In our judgment, the items marked (a), (b) and (c) in paragraph 7 of the skeleton are new issues.  The only reason given in the determination for finding that the appellant does not meet the requirements of sub-paragraph (viii) are those relating to the Immigration Judge’s assessment of his compliance with sub-paragraph (vi).  The respondent having given no notice in time that he wished the Tribunal to uphold the determination for these additional reasons, we declined to allow him to argue them. 

7.	That takes us back to the question of whether the appellant intended to take employment only incidental to a holiday, which the Immigration Judge identified as “the real issue in this case”.  Before us the respondent sought to concede the appellant’s compliance with sub-paragraph (vi), on the following basis as set out in his skeleton:

	“3.	It is accepted on behalf of the Secretary of State that the Immigration Judge materially erred in law in his assessment of paragraph 95(vi), that is, whether the appellant ‘is intending to take employment incidental to the 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’.  The Immigration Judge’s concentration on the amount the appellant could potentially earn is not a matter that the Immigration Rules require to be assessed.  

	The correct approach to the meaning of ‘incidental’

	4.	It is submitted that the correct approach when deciding whether an applicant’s employment will be incidental to the holiday is to concentrate on whether the amount of time spent working exceeds the 12 month limit, as imposed by virtue of paragraph 95(vi).  It is submitted that it is the 12 month limitation which is the material consideration in deciding whether the employment is incidental.  On the current construction of the Rules as long as an applicant does not work in excess of 12 months then the amount of money he earns, or the amount of hours he works, are not matters which effect [sic] whether the employment is incidental.”

8.	Mr O’Leary confirmed that the concession was made on behalf of the respondent Entry Clearance Officer, not on behalf of the Secretary of State.  The reference to “the current construction of the Rules” ought not to be a reference to the Immigration Directorate’s Instructions, as indicated in the Immigration Judge’s determination, but to the Diplomatic Service Procedures, which are the equivalent of the IDIs for Entry Clearance Officers.  The relevant paragraph of the DSPs is as follows:

“Employment

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.

Entrants in the category may take most employment of their choice, including voluntary work. 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.

Particular restrictions are placed on the admission of sportspersons as Working Holidaymakers. Those who participate in sport as amateurs abroad and who wish to continue this activity for recreational purposes in the UK may do so. However, persons established as professionals or semi-professionals in sport who intend to continue such activities in the UK temporarily for payment or say they will do so for no pay, should be refused entry as WHMs and required to obtain work permits.”

The current version of the IDIs is in similar terms.

9.	It is clear that the interpretation advanced by the respondent’s behalf by Mr O’Leary goes considerably further than the DSPs.  Indeed, he told us in his submissions that he was instructed to advance the view than any working by a working holidaymaker was regarded to be incidental if it amounted, in total, to less than twelve months full-time work.  He agreed that that meant that a working holidaymaker intending to come to the United Kingdom for twelve months or less could work full-time for the whole of his visit.  We cannot accept a submission in that form, even by way of concession.  We are concerned in this appeal with the appellant’s claim that the decision to refuse him entry clearance was a decision which was not in accordance with the law, including the Immigration Rules.  Sub-paragraph (vi) of paragraph 95 makes it clear that an applicant is not entitled to entry clearance unless he “is intending only to take employment incidental to a holiday”.  The reference to “twelve months” towards the end of that sub-paragraph is preceded by the words “in any event”.  There can be no doubt that the primary requirement is that any employment taken will be “incidental” to the holiday.  

10.	That requirement was inserted into paragraph 95 by a Statement of Changes in Immigration Rules, HC 302, which came into effect on 8 February 2005.  The Immigration Rules, through their various amendments and changes, have Parliamentary authority under s3 of the 1971 Act.  Although no doubt it is open to the Secretary of State to adopt and indeed argue for interpretations of any ambiguous provisions, we cannot see that the Secretary of State is entitled to adopt a practice which is contrary to the clear meaning of the Immigration Rules, while claiming to be applying them.  If such a stance were adopted in the IDIs or the DSPs, a claimant might be able to succeed on the basis that a decision was “not otherwise in accordance with the law” on Abdi [1996] Imm AR 46 principles; that is, he would be claiming outside the Rules.  In the present case, it is clear that the DSPs, like the Immigration Rules themselves, require the employment to be incidental.  

11.	The appellant failed to satisfy the Immigration Judge that his intention was to take work only incidental to a holiday.  In those circumstances the Immigration Judge made no error of law in dismissing the appeal and we order that her determination shall stand.  

12.	In view of the way in which this appeal was argued on the respondent’s behalf before the Tribunal, Mr O’Leary agreed that his submissions amounted to an undertaking that the present appellant would be granted entry clearance as a working holidaymaker if the question whether his employment would be merely incidental was the only issue outstanding following his appeal.  As we have indicated, it is.  He will therefore receive his grant of entry clearance: but for the reasons we have given, his appeal remains dismissed.  

C M G OCKELTON
DEPUTY PRESIDENT
          Date: