United Kingdom Asylum and Immigration Tribunal

APPEAL No. [2004] UKIAT 00020 K (India)

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 23 January 2004

Date Determination notified: 12 February 2004

Before Mr N H Goldstein (Chairman) Mr N Kumar JP Mr F T Jamieson
Between

 

K	APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT	RESPONDENT

For the appellant: Mr A Bajwa, Counsel For the respondent: Miss C Hanrahan, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant, who is a citizen of India, has been given leave to appeal the determination of an Adjudicator (Mr J J Neyman) dismissing his appeal against the respondent's refusal of 20 May 2002 to grant her entry clearance as a working holidaymaker.
2. The respondent was not satisfied that the appellant was genuinely intending a working holiday in the United Kingdom after which she would leave. Further, that the financial requirements of the Immigration Rules had been met.
3. It is noteworthy that the Adjudicator accepted that the sponsor intended and was able to accommodate the appellant in the United Kingdom at his cost and also to maintain her in the United Kingdom. In so doing the appellant satisfied the requirements of Rule 95(v) of HC395.
4. The Adjudicator also accepted that the appellant had the means to pay for her return or onward journey, thus satisfying the requirements of Rule 95(iv).
5. The Adjudicator, however, concluded that he was not satisfied the appellant would return to India "or that she aspires to take employment there".
6. Further, the Adjudicator was not satisfied that the appellant intended to leave the United Kingdom at the end of her working holiday and therefore failed to satisfy the requirements of paragraph 95(viii).
7. The Adjudicator made it clear at paragraph 24 of his determination that indeed it was paragraph 95(viii) that had not been satisfied and thus led him to dismiss the appeal.
8. We have decided to allow the appeal.
9. It is apparent to us that the Adjudicator failed to take account of the decision of the Tribunal in Amir Shahazad [2002] UKIAT 03380 in which the Tribunal found (as was conceded in that case on behalf of the respondent) that a working holidaymaker need not be well settled in his own country. The kind of employment which the appellant had in mind in that case did not need a high level of English language, skills and his sponsor was earning a good income. It is right to say that under the old Rules HC251 paragraph 37 there was a requirement that a working holidaymaker should not have settled down in his own country. This requirement did not appear at paragraph 95 of HC395, although the working holidaymaker should not have commitments necessitating a regular income. Such commitments are of course often adduced in visitor cases, to show that the visitor has an incentive to return to his own country. They should not be expected in a working holiday case, to show that the appellant intends to leave the United Kingdom at the end of the holiday.
10. It would appear, not least upon a reading of paragraph 23 of the Adjudicator's determination, that he placed great store by the fact that the appellant had "no job to return to in India". With respect to the Adjudicator it is difficult to follow his reasoning in that regard, in that notwithstanding his acknowledgment that the appellant had only just completed her University Degree course, the Adjudicator concluded that as the appellant was prepared to spend:

"the next two years in the United Kingdom, (it) indicates to me that she has no plans formed on what she intends to do on return to India should she be allowed entry to the United Kingdom."

11. It is apparent to us that the appellant having successfully completed her degree course wished to take the opportunity to travel, not least to the United Kingdom, as a working holidaymaker before finally formulating plans for her future career. In any event, as we have made clear, it is not a requirement that a working holidaymaker needs to be well settled in her own country for the purposes of qualifying for a visa under paragraph 95 of HC 395.
12. It was noteworthy that Ms Hanrahan for the respondent briefly limited her remarks to explaining to us that having read all the papers she simply invited the Tribunal "to take a view". In the circumstances, and understandably, Mr Bajwa for the appellant did not feel it necessary to address us save to express his reliance on the grounds of appeal and the supporting documentation.
13. From the evidence placed before the Adjudicator and having considered the grounds and the documentation attached to them, we are satisfied that the appellant is able to meet all the requirements of paragraph 95 and the appeal should be allowed.
14. There is clearly no requirement the appellant be in a "well settled" situation in his or her own country prior to applying for a working holiday visa. Indeed, as the Tribunal observed in Shahazad the opposite would appear to be the case. In all other respects the Adjudicator was rightly satisfied that the appellant met all the necessary requirements.
15. We therefore reverse the Adjudicator's decision and allow this appeal.

N H Goldstein

Vice President