United Kingdom Asylum and Immigration Tribunal

AA and Others (Sectors Based Work: general principles) Bangladesh [2006] UKAIT 00026

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 31 January 2006

Date Determination notified: 08 March 2006

Before

Mr C M G Ockelton (Deputy President) Mr G Warr (Senior Immigration Judge)

Between

AA	APPELLANT
and
ENTRY CLEARANCE OFFICER, DHAKA	RESPONDENT
second	APPELLANT
and
ENTRY CLEARANCE OFFICER, DHAKA	RESPONDENT
third	APPELLANT
and
ENTRY CLEARANCE OFFICER, ISLAMABAD	RESPONDENT
fourth	APPELLANT
and
ENTRY CLEARANCE OFFICER, DHAKA	RESPONDENT

For the first Appellant: Mr T Shah, of Taj Shah & Co For the second Appellant: Mr S Rossier, of IAS For the third Appellant: Ms R Chowdhury, instructed by Cranbrook Solicitors For the fourth Appellant: No appearance For the Respondent: Mr M Vale, Home Office Presenting Officer

DETERMINATION AND REASONS

In an appeal under paragraph 135I of HC 395 (Sectors-Based Work Permits) where no reliance is placed on paragraph 320:

(1) Neither the ECO nor the Tribunal is concerned with whether the Work Permit should have been issued;

(2) it is not open to the ECO to base a refusal purely on generalities applicable to the Scheme as a whole;

(3) the burden of proof remains on the applicant even though he has a work permit;

(4) his intention to return is to be distinguished from motive or incentive to return;

(5) an applicant who fails to give a coherent or consistent account of his proposed employment and circumstances in the UK may be found to have failed to discharge the burden of proof.

1. We have before us for reconsideration four appeals by Appellants who, having obtained work permits under the Sectors-Based Scheme, sought, and were refused, entry clearance to the United Kingdom.

The Appellants

2. The first Appellant (AA) presented to the Entry Clearance Officer, Dhaka, a work permit relating to proposed employment as a fish filleter in East India Cash and Carry Limited. His application for entry clearance was refused on the ground that the Entry Clearance Officer was not satisfied that he intended to leave the United Kingdom at the end of his approved employment, because:

"You have not shown that you have, on the balance of probabilities, sufficiently strong family, social or economic ties in Bangladesh to satisfy me that you intend to leave the United Kingdom on completion of your twelve months employment because you are in unpaid employment, have no savings and no employment arranged for your return."

3. The explanatory statement, prepared as usual after the notice of appeal was received, reads, so far as relevant, as follows:

"I have considered all of the grounds given within the notice of appeal. I note that no further documents have been presented in support of the appeal. The Appellant stated that he has strong economical and social ties in Bangladesh. However, the Appellant is an unemployed single man with no income, assets or savings. He did not complete the employment details on the application form, but stated during his interview that he helped his father in his fishery. He presented no evidence of this. He is financially supported by his father and lives with his parents, four sisters and three brothers. He lives in a tin walled house with a tin roof and concrete floor. He has no commitments or ties in Bangladesh. The Entry Clearance Officer considered that the Appellant was aware of the ability to support his family from his significantly higher income in the UK. The Entry Clearance Officer could not be satisfied that the Appellant would leave the United Kingdom after his one year stay and all the financial benefits and ability to support his family that would come with working there."

4. The Adjudicator, Mr N Paul, heard oral evidence from the sponsor, the Appellant's proposed employer. After hearing submissions, he set out his task, as he saw it, in his determination as follows:

"This is a case where the ECO based in Dhaka was in a good position to make an assessment as to the bona fides of the application. However, as Mr Ahmed pointed out, mere suspicion is not sufficient. The question is what is the evidence to support this application and has the Appellant demonstrated on a balance of probabilities that he is genuinely intending to return to Bangladesh at the end of twelve months. Whilst I respect the ECO's decision, I can review it if I am satisfied that he has either misdirected himself or there is fresh material not before him which casts light and substantiates the application."

5. The Adjudicator went on to say that he was not persuaded by the sponsor's evidence.

"In this case, I have to say that I am not satisfied by the evidence provided by the sponsor. First of all, no documents were produced to show that he had placed advertisements in local newspapers and I found it amazing that the solicitor instructed to attend did not have the file with him, bearing in mind that it would clearly have demonstrated the sponsor's bona fides. Furthermore, neither in the sponsor's statement or in the Appellant's statement is there any information provided as to accommodation. The first time this was raised was when the sponsor said that accommodation would be provided free in the business premises. There was no contract of employment. There was no business plan with regard to how much the Appellant expected to earn and be able to send back to Bangladesh. There was no statement as to the cost of the trip and how that would be funded.

As indicated above, the sponsor did not convince me that this application was genuine. In particular, I was not satisfied as to his assertion that the hours were long and hard and that no British citizens would take up this kind of employment. When asked about the hours, he said it was forty hours which is the national standard. Extra hours would be required as and when necessary. There was nothing exceptional about that. Furthermore, there was nothing intrinsically unsatisfactory about the job that would mean that local Asian people would not apply for it. It is well known that in the East End of London with the large businesses involved in catering, that many people work in that type of industry and there is nothing special about this type of job to indicate that people working generally in the catering industry would not apply for this type of work."

He concluded as follows:

"Therefore, having regard to the matters considered by the ECO and the matters I reviewed above, I am not satisfied on the balance of probabilities that the Appellant has demonstrated that he will comply with the requirements of the Immigration Rules."

6. Thus he dismissed the appeal.
7. The grounds for reconsideration assert that the Adjudicator erred in the approach that he took to the appeal, and that his determination went well beyond a consideration of the Appellant's intention to leave the United Kingdom at the end of the approved employment, which was the only issue before him.
8. The second Appellant (MFU) presented to the Entry Clearance Officer a work permit relating to proposed employment as a cleaner for Raj Mahal Royal Indian Takeaway in Northolt. His entry clearance was refused in terms that are substantially identical to those in the case of the first Appellant, save that in his case the reference to "unpaid employment" was replaced by "low paid employment" and the Entry Clearance Officer added that the Appellant had no qualifications. The explanatory statement adds the following:

"It is a requirement of the Immigration Rules that a Sector Based Work Permit Holder 'intends to leave the United Kingdom at the end of his work permit'. This is also a requirement of paragraph 17(e) of the conditions governing the issue of the work permit. I am aware that given the lack of ability of the authorising officer to accurately assess this in the UK, then this task falls to the ECO at post.

The Appellant's monthly income in the UK would be @ £717.60 before stoppages (78,936 taka) [exchange rate of 110 Taka = £1] which is 44 times the average income of 1,800 taka that the Appellant claims to earn in Bangladesh. Bearing in mind the circumstances of the Appellant, in Bangladesh, my colleague could not be satisfied that the Appellant would leave the UK, at the end of his work permit with the significant higher income to return to Bangladesh and a life close to the poverty limit. Clearly the personal circumstances of an individual is an important aspect of any application to consider whether it is probable that they would leave the UK and return to their life from where they had come.

Migratory pressures on persons from Bangladesh are more severe than those from a lot of other countries. Bangladesh is a desperately poor country with political instability and very limited opportunities for those who do not belong to the ruling or business elite. Almost 50% of the population live below the national poverty line (UNDP Human Development Report 2004). When considering applications of this nature, ECOs have to be satisfied that, on completion of the work permit, the applicant will leave the UK. An ECO has to be satisfied that the applicant has sufficient incentive to leave the UK at the end of time limit so in this respect, the situation in Bangladesh is very relevant to the ECO's deliberations."

9. The Appellant's appeal against that decision was heard by an Immigration Judge, Dr K F Walters, on 2 August 2005. He heard oral evidence from the sponsor. He also had before him a statement by the Appellant, which reads, in part, as follows:

"It is obviously true that I am in low paid employment but it does not mean that as I am in low paid employment there is no possibility of my returning in Bangladesh at the end of approved employment. If my financial condition were good, it is not necessary to go abroad to earn money by hard labour. However, I have inheritance on my father's huge properties, two houses on 1.2 acres and 5.8 acres arable land, two fisheries etc. If I get the visa, there is a possibility to earn more than 8,000 pounds which is equivalent to more than 800,000 taka. As my employer has declared that he will provide my accommodation and food I will be able to save my earned money. I have a future plan to set up a restaurant. I will set up a business with the saved money and I am confident that I will be able to maintain my family with the income of my business. So I do not need to breach the immigration rules to maintain my family. The ECO raised the question on my ties in Bangladesh and my opinion on the remark is that I have all my family members in Bangladesh and no one of my close relative lives in the UK. So I have not any reason and way to stay there illegally. My father and mother are in elderly age and I have also responsibility to look after them. Above all, the bond of love in Bangladeshi family is the main reason to stay jointly. And we live in a joint family. And I have no intention to stay permanently in abroad without my family members."

10. The Immigration Judge reached the conclusion that the Appellant's circumstances must be described as modest. He regarded the sponsor as credible but noted that he knew little or nothing of the Appellant other than from one telephone conversation. He concluded his determination as follows:

"It is against such a backcloth that the Appellant seeks employment in the United Kingdom, as a cleaner, in a takeaway restaurant, where he would earn significantly more money than is possible for him in Bangladesh. According to the Appellant, and his sponsor, with the provision of free food and accommodation in the United Kingdom, the Appellant would be able to save much of the money earned by him in the United Kingdom and, upon return to Bangladesh, could open his own small business. However, upon his own admission, the Appellant has no business experience, much of his experience to date, and for the immediate future, centring upon his ability to clean business premises. I have concluded that the Appellant's claimed aspirations are wholly unrealistic and lack credibility.

Taken in the round, I do not consider this Appellant has demonstrated that, having regard to all the circumstances set out herein, there is any incentive for him to return to Bangladesh on completion of sector based employment.

The burden of proof remains upon the Appellant. Applying the relevant law to the established facts, and on the totality of the evidence adduced before me, I find that the Appellant has not discharged the burden of proof and reasons given by the Respondent do justify the refusal. The Respondent's decision is in accordance with the law and the Rules, and the appeal is accordingly dismissed."

11. The grounds for reconsideration assert that the Immigration Judge placed too much emphasis on incentives to return and failed to consider properly the Appellant's intention. They point out that at his interview (as distinct from his statement which we have set out above) the Appellant said that his intention on return was to open a grocery shop in the local market, which would not be an unrealistic proposition. Further, the grounds assert that the Immigration Judge failed to note the overwhelming family ties that the Appellant has in Bangladesh.
12. The third Appellant (NM) presented a work permit relating to proposed employment as a kitchen assistant at K2 Takeaway in Bolton. He was refused entry clearance on the ground that the Respondent was not satisfied that he was capable of undertaking the employment stated on the work permit, that he did not intend to take other employment, that he would be able to maintain and accommodation himself, or that he intended to leave the United Kingdom at the end of his approved employment. The reasons are stated in the notice of decision as follows:

"I accept that you have been issued an immigration employment document by Work Permits UK under the Sector Based Scheme. However, you could not even give me a credible account of how you obtained the job. I would expect anyone proposing to move abroad to work to have at least some knowledge about their future employment. Your failure to take any interest in your claimed employment leads me to conclude that you have obtained a work permit to secure your entry to the UK and as a result, I am not satisfied that you intend to take employment as specified on your work permit as required by Rule 135I(iv) of HC 395. I am therefore not satisfied that you will be able to maintain and accommodate yourself in the UK without have recourse to public funds as required by Rule 135I(v) of HC 395.

You are in very low paid employment earning only 5,000 Rupees a month. You own no land, savings or assets in your own right. You are an unmarried male of marriageable age and I am not satisfied that you are settled or established here at this time, or that you have shown sufficiently strong family, social or economic ties to Pakistan. Coupled with this, in view of the substantial economic benefits that you can expect in the UK, I am not satisfied that you intend to leave the UK after the year specified on your sector based work permit as required by Rule 135I(vi) of HC 395."

13. There are extensive grounds of appeal, to which the explanatory statement responds by reasserting the reasons for refusal in the following terms:

"The Appellant has failed to address the issues raised in the APP 200 and although I accept that no previous experience is required to do the work involved I am not satisfied that the Appellant will not take work other than that specified on his work permit. Nor am I satisfied that the Appellant will be able to maintain and accommodate himself without recourse to public funds or that he will leave the UK at the end of the period specified in his work permit."

14. The Appellant's appeal was heard by an Immigration Judge, Miss Jane Plumptre, on 7 September 2005. She considered the documentary evidence. She heard no oral evidence. The Home Office Presenting Officer before her made a submission that it was unfortunate that the Appellant's proposed employer did not attend to give oral evidence because he would have been able to explain the terms of employment, his reason for choosing the Appellant as his employee, and any financial arrangements for the Appellant's return to Pakistan. In her consideration of the evidence and of Mrs Chowdhury's submissions, the Immigration Judge noted the terms of the employer's statement as well as the documents emanating from the Appellant. She observed that there was a discrepancy in the arrangements for accommodation, in that the Appellant said that his employer would give him four weeks residence and accommodation, whereas his employer said that he would give the Appellant one week's paid leave in order to find accommodation. The Immigration Judge said that in view of what the employer had said, there was no satisfactory evidence before her about where the Appellant would live on his arrival in the United Kingdom: she thought that he would have difficulty finding accommodation in Bolton as he spoke only Punjabi.
15. The Immigration Judge went on to make a finding that the employer did not take any steps to satisfy himself that the Appellant was capable of undertaking the job of kitchen assistant, a job about which the Appellant evidently knew rather little. After consideration of the arrangements leading up to the issue of the work permit, she wrote:

"In all the circumstances, I find that the Appellant has himself initiated arrangements with the help of his brother to obtain a work permit in order to gain entry to the United Kingdom and not because he intends to take employment specified in the work permit as required by Rule 135I(iv) of the Immigration Rules."

16. Referring to the document produced on behalf of the Appellant as evidence of his employment in Pakistan, the Immigration Judge took the view that the restaurant in question was "a family concern" because the proprietor and managing director had, like the Appellant, the name "Mehmood". She noted that there appeared to have been no contact between that restaurant and the Appellant's prospective employer in the United Kingdom and that the letter made no reference to the Appellant's earnings. She added that there was no evidence about how the Appellant's return fare would be paid. She noted that the absence of the employer indicated that he was not willing to attend in order to confirm what he said in his witness statement, in particular relating to accommodation. Furthermore, the Immigration Judge could find no evidence of any proposed employment on the Appellant's return and finally noted that his income in Pakistan was so modest that he required financial assistance from his father and brother.
17. For these reasons, the Immigration Judge found that the Appellant had not met the requirements of the Immigration Rules and so dismissed the Appellant's appeal.
18. The grounds for reconsideration assert that the inconsistency relating to employment, the lack of previous experience, the arrangements made by his brother to obtain the employment, the absence of the proposed employer and the absence of evidence relating to the return fare are all irrelevant and that the Immigration Judge had failed to direct her mind to the true issues between the Appellant and the Respondent.
19. The fourth Appellant (MMAC) presented a work permit relating to proposed employment at Indian Summer, a restaurant in Newquay, Cornwall. His application was refused on the ground that the Entry Clearance Officer was not satisfied that he met the requirements of paragraph 135I, in particular that he intended to leave the United Kingdom at the end of his approved employment, because:

"You claim to have been employed for almost 1½ years as an office clerk with an income of 4000 taka (£40 using 100 taka to the £ exchange rate) per month. You live in a brick built house, tin roof and water from a motor. Your circumstances in Bangladesh appear to be modest if not poor. However, you have passed your SC and you have a job, which would allow your progression. You were unable to inform me which experiences as a bar man would assist you on your return to Bangladesh. You must also be aware of the ability to support your family from your income in the UK. I cannot be satisfied that you will leave the United Kingdom after your 1 year stay and all the financial benefits that would come with working there.

Your monthly income in the UK would be £650 (63,000 taka) which is 16 times your present claimed monthly wage. I could not be satisfied that you would leave the UK with the significant higher income to return to Bangladesh to return to your present employment. I am also not satisfied that your employer will leave your position vacant for 12 months until your return.

You claimed that the main reason for going to the UK was to earn money. However, you were unaware what your income would be per week or per month only the hourly rate of £4.50, which had been written on the papers. It does not seem credible that you would not have calculated your financial benefits from this trip given the only reason was financial."

20. The explanatory statement adds the following:

"… no further documents have been presented in support of the appeal. the representatives of the Appellant stated that the Appellant's circumstances should not be considered when considering such a case. However, they have failed to draw any attention to the Immigration Rules Paragraph 135I(vi), which it clearly states that 'you intend to leave the United Kingdom at the end of your approved employment'. The Appellant claimed to be employed as an officer clerk since August 2002 and receiving an income equivalent to £37 per month. The Appellant stated that he would return to his current employment after his one-year of employment. The Appellant presented no evidence of any employment, income or proof that his employer will re-employ him on his return. The Appellant lives with his parents and brother and the Appellant is a single man with no savings, assets or commitments in Bangladesh. The Entry Clearance Officer considered that the Appellant was aware of the ability to support his family from his significantly higher income in the UK. The Entry Clearance Officer could not be satisfied that the Appellant would leave the United Kingdom after his one year stay and all the financial benefits and ability to support his family, that would come with working there. Furthermore, the Entry Clearance Officer could not be satisfied that the Appellant would leave the UK with the significant higher income to return to Bangladesh to further low wages and poor living conditions.

The representatives have stated that Work Permits (UK) have authorised the work permit having already vetted the application for a work permit. However, Work Permits (UK) do not consider the Immigration Rules when vetting any work permit application and in particular applicants intentions to leave the UK at the end of one year. This is the job of the Entry Clearance Officer, at the post overseas. Therefore, Work Permits vetting and issue of a work permit does not give an automatic right to enter the UK. The applicant in this case has to satisfy the Immigration Rules.

The representatives have also stated or implied that as of 1^st May 2004 with the change in rules that employers would no longer employ a person aged 16 and over due to it being a criminal offence and a £5000 fine payable if the person was 'subject to immigration control'. To imagine that as from 1^st May 2004 that there is no potential or there is no longer persons working illegally in breach of their immigration conditions appears to me to be naïve in the extreme."

21. The Appellant's appeal was heard by an Immigration Judge, Mr I S Kulatilake, on 26 September 2005. He noted the material before him, in particular the submission by the Appellant's representative that the Entry Clearance Officer's decision was based on suspicion. He rejected that submission, writing as follows:

"However, the ECO's concerns were not entirely based on suspicion, and he was right to consider how his employment in the UK would assist him on his return to Bangladesh. Mrs Haroon submitted, that the bar skills he would learn, in the UK would be readily marketable in the 'star grade hotels in Bangladesh'. However, when the Appellant was questioned at interview he stated his experience in the UK, would assist him on his return to his present employment as an office clerk in an auto business. And if the Appellant as Mrs Haroon submitted was to use his experience in the UK as a barman, to obtain employment in that field in a hotel on his return, he should have said so. He did not, and neither was he able to explain how his experience in the UK would assist him to better himself in his current employment, if he was not returning to his current employment.

I find in the circumstances the ECO was entitled to draw the inference, that the Appellant is not being honest as to his reasons for applying under the SBS, and accordingly doubt that the Appellant does intend to leave the UK at the end of the year's employment.

It is also to be observed from his interview, the Appellant has an uncle in the UK. Mrs Haroon was unable to assist me as to the uncle's circumstances in the UK. For example how he gained entry to the UK, as to how long he has been in the UK etcetera.

I accept Mr Choudhury, the proprietor of the restaurant, when he expresses, that he would do everything that is possible to ensure the Appellant will return to Bangladesh at the end of the year. Nevertheless it appears, the Appellant has not been entirely transparent with him, when he stated, that he is coming to the UK to acquire new skills and experience. As I observed earlier when the skills he would acquire and the experience as a barman he would gain in the UK will not be of assistance if he expecting to return to his job as a clerk."

22. Thus the Immigration Judge dismissed the appeal. The grounds for reconsideration assert that the Immigration Judge erred in placing emphasis on whether the Appellant would, on his return, have any real use for skills learnt in the United Kingdom, in identifying a discrepancy in the evidence relating to the use the Appellant would make of his new skills (because the discrepancy, if any, arose from the oratory of his representative) and in apparently taking into account the existence of the Appellant's uncle in the United Kingdom.

The hearing

23. We have considered all the documentary material before us in these four appeals. We heard submissions from Mr Taj on behalf of the first Appellant, Mr Rossier on behalf of the second Appellant, Mrs Chowdhury on behalf of the third Appellant and Mr Vale on behalf of both Entry Clearance Officers. The fourth Appellant did not appear and was not represented before us.

The Sectors-Based Scheme

24. There is no dispute between the parties about the terms of the Sectors-Based Scheme. Information about it is most readily obtained at www.workingintheuk.gov.uk to which the parties referred us. The Sectors-Based Scheme gives to employers who have difficulty in recruiting staff in certain specified sectors of industry the possibility of recruiting from outside the EEA. It has the incidental effect that it gives to certain workers from countries outside the EEA the opportunity to work in the United Kingdom: but the reason for that is the assistance they will thereby give to the United Kingdom economy. It is not primarily intended to benefit the immigrant worker.
25. When it was introduced, the scheme was applied to two sectors – hospitality and food manufacturing. The number of permits available is limited by quota. The quota allocation for the hospitality sector was soon exhausted and the hospitality sector was withdrawn on 30 June 2005. In order to give an impression of the types of job to which the Sectors-Based Scheme applies, we list the posts which are now covered in the food manufacturing industry. They are as follows:

Fish

. Fish filleters (prepares, cleans, cuts fish for processing);

. Fish packers (packing, wrapping, labelling, sealing, by hand or machine, fish for distribution and sale); and

. Fish process operatives (operating, minding and cleaning machines that prepare fish for distribution and sale).

Meat

. Animal gut remover;

. Meat bone breaker;

. Meat bone extractor;

. Meat cold store operator;

. Meat cutter;

. Meat packer;

. Meat process operatives;

. Meat slaughterer;

. Lairageman (pre-slaughter animal welfare attendant); and

. Trimmer (trims fat from and shapes meat, after it has been boned and cut).

General

. Mushroom processor (tends growing crops, picks, grades and packs mushrooms for distribution and sale)

26. Because of the nature of the scheme, the application process is initiated by the employer (not the worker) and the employer retains a considerable measure of responsibility for anybody he employs under the scheme. In order to apply for a work permit for a non-EEA worker under the scheme, an employer has to satisfy 'Work Permits (UK)', an agency of the Home Office, that he is running a genuine business in accordance with UK law, that he has a genuine vacancy, that the vacancy is full-time and will be paid at a rate lawful in the UK, and that he has been unable to fill it from the workforce available in the UK and the EEA. In order to satisfy 'Work Permits (UK)' on the last matter, he has to prove that it has been advertised in the UK and in the EEA, give details of the applicants and say why they were unsuitable. It is only if 'Work Permits (UK)' are satisfied on all these matters that they will go on to consider arrangements for a specified individual worker recruited from outside the UK. He will need to be between eighteen and thirty and able to do the job; his employer needs to provide accommodation or provide facilities to assist him in obtaining accommodation. If 'Work Permits (UK)' are satisfied on all these matters, a work permit will be issued. It is limited to the named individual, the named post and the named employer; it allows employment only for a maximum period of one year (there has to be an absence from the UK of at least two months before the same individual can undertake further sectors based work) and it does not entitle the worker to bring any other members of his family or dependants with him.
27. The work permit also does not entitle the prospective employee to admission. A person seeking admission to the United Kingdom under the Sectors-Based Scheme needs entry clearance, which he has to obtain, as usual, from the British Embassy or High Commission in his country. An entry clearance will only be issued if the applicant meets the requirements in paragraph 135I of the Immigration Rules, HC 395. Those requirements are that he:

"(i) holds a valid Home Office immigration employment document issued under the Sectors-Based Scheme; and

(ii) is not of an age which puts him outside the limits for employment; and

(iii) is capable of undertaking the employment specified in the immigration employment document; and

(iv) does not intend to take employment except as specified in his immigration employment document; and

(v) is able to maintain and accommodate himself adequately without recourse to public funds; and

(vi) intends to leave the United Kingdom at the end of his approved employment."

28. It will be observed, therefore, that the process has two principal stages. The first is that leading up to the issue of the work permit. If the application by the employer is unsuccessful at that stage, no work permit will be issued. The second stage leads up to the use of the work permit. The prospective employee has to show that he meets the requirements of the Immigration Rules to enable him to come to the United Kingdom in order to do the work which the work permit allows him to do. The decision-maker at the first stage is 'Work Permits (UK)'. The decision-maker at the second stage is the Entry Clearance Officer. Their roles are quite different. As paragraph 135I(i) makes clear, the possession of a work permit is one of the requirements before entry clearance can be granted; but the Entry Clearance Officer has no role in enquiring into whether a work permit should have been issued. If there is a work permit, the appellant meets the requirements of paragraph 135I(i).

Immigration appeals and the Sectors-Based Scheme

29. Appeals relating to the Sectors-Based Scheme come to this Tribunal only by way of an appeal by the prospective employee against a decision, normally by an Entry Clearance Officer, that he does not meet the requirements of paragraph 135I. The appeal has to be limited to the requirements of the Immigration Rules. It is not for the Tribunal to attempt to decide whether a work permit should have been issued. Although it is conceivable that the Tribunal might be assisted by the evidence of the prospective employer, it is always necessary to remember that the employer's evidence is relevant to the appeal only insofar as it goes to the appellant's ability to satisfy the requirements of the Immigration Rules. The appellant's immigration appeal is not the place to decide whether the employer really has a vacancy suitable to be filled from abroad.
30. The Adjudicator in the first Appellant's appeal before us clearly erred in law in basing his dismissal of the appeal in part at least on his dissatisfaction with the evidence provided by the employer leading up to the issue of the work permit. The Immigration Judge in the appeal of the third Appellant alluded to the absence of oral evidence from the employer, but we do not consider that she erred in law in her consideration of the impact of the evidence as a whole. It is clear from her determination that she was considering evidence that the employer might have given only in the light of the Appellant's ability to meet the requirements of the Immigration Rules relating to his capability to do the job, his intention to do it, and his access to accommodation.
31. Just as the Tribunal is not concerned with matters going to the issue of the work permit itself, so the Entry Clearance Officer ought not, in our judgment, to be concerned with matters that are a pre-condition to the issue of the work permit. All applicants under paragraph 135I are young, because the scheme is limited to those between eighteen and thirty. All of them are likely to be without dependants, because the scheme does not allow dependants to accompany the worker to the United Kingdom. All will be earning at least thirty times the UK minimum hourly wage per week, because it is a requirement of the scheme that the worker be employed for at least thirty hours per week at a lawful wage. All are people who are prepared to undertake low skilled unattractive employment, because the scheme is limited to such jobs. Taking any of those factors against an applicant is similar to enquiring into the issue of the work permit.
32. Further, it is quite wrong for an Entry Clearance Officer to assume, from the fact that the scheme will offer the applicant an opportunity, during the year that he is lawfully employed under it, to make what may by his standards be a considerable amount of money, that the applicant will thereafter seek to work unlawfully. That is equivalent to an assumption that anyone who has the opportunity to commit an offence will do so. Nor should Entry Clearance Officers confuse actual intention with apparent motive. The fact that an applicant has no apparent economic reason to return to his own country does not mean that he has no intention of returning to his own country at the end of his employment.
33. In that context, it seems to us also that the poverty of the country from which the applicant comes is also a matter which is not of relevance to the Entry Clearance Officer's decision. If one dismisses from one's mind the suspicion that the application is being made only in order to enable the applicant to overstay, a great difference between his income in his own country and the income he will obtain in the United Kingdom merely makes it more explicable that he should inconvenience himself by going abroad and by doing an unattractive job in order to earn it.
34. It follows also that entry clearance applications cannot properly be refused on the basis of generalities that may originate from a disapproval of the scheme and a suspicion of abuse. Each applicant is entitled to individual consideration of his own individual circumstances and individual intentions. If the application is refused, the notice of refusal and the explanatory statement must show that the refusal was based not on a generalised suspicion but on a proper evaluation of the appellant's evidence.
35. That said, the burden of proof is on the appellant both before the Entry Clearance Officer and in any subsequent appeal. It is for the appellant to demonstrate that he meets the requirements of the Immigration Rules. It is notoriously difficult to prove intention but, as in any other area of immigration law, an applicant who appears not to have any clear and consistent idea of the facts, or who appears not to be telling the truth, should not be surprised if his declaration of his intentions is not believed. If on important matters there are contradictions in his own evidence, or inconsistencies between what he says and what the prospective employer says, it may be very difficult for the applicant to discharge the burden of proof. And although the reasons for the issue of the work permit are not a matter for the Entry Clearance Officer or the Tribunal, it is a central feature of the application that it is in order to enable the applicant to do a specific job with a specific employer in a specific place in the United Kingdom. The applicant's case is that he has been recruited for that purpose. It is therefore by no means unreasonable to expect him to have a knowledge of what it is that he is going to do.

Reconsideration

36. In AA's case, the Adjudicator erred, as we have explained, in basing his decision partly on his views about whether the work permit should have been issued at all. That was a material error of law. The Adjudicator also erred in his approach to his task. We have set out the relevant passage of his determination in paragraph 4 above. Regardless of the Entry Clearance Officer's decision, it was the Adjudicator's task to look at the matter afresh as it was at the date of the decision and reach his own conclusion on whether the Appellant met the requirements of the Immigration Rules. That was also a material error of law.
37. This is a case in which the Appellant gave full details of his application to the Entry Clearance Officer. The Entry Clearance Officer's ground for refusing him rely solely on generalities, suspicion, and the lack of motive (as distinct from intention) to return. We must assume that the Entry Clearance Officer found no other reason for refusing the application. Before the Adjudicator, there were no contradictions in the evidence on employment and accommodation, both of which were matters going to the issue of the work permit. Looking at the matter as a whole, we take the view that AA met the requirements of the Immigration Rules and in his case we substitute a determination allowing his appeal.
38. The Entry Clearance Officer's refusal of the application of the second Appellant, MFU, was based on generalities, suspicion, and an absence of motive to return. The Immigration Judge in this case appears to have endorsed that reasoning, whilst possibly ignoring the evidence of incentive to return set out by the Appellant in his statement. In our view, the Immigration Judge materially erred in law. He did, however, point out that the Appellant's "plan to set up a restaurant", to which he refers in his statement, seems somewhat impractical. The Immigration Judge does not appear to have specifically compared the statement with the interview (mentioning the plan to set up a market stall); if he had done, he might have decided that there was a material inconsistency.
39. We think that would have been harsh. It is not a requirement of the Immigration Rules that the applicant have a firm or coherent business plan for his life after his return from Sectors-Based work. In our view, the difference between the two stated long-term intentions is an inconsistency, but it is not material. It does not appear that there was any other reason for considering that this Appellant had not met the requirements of the Immigration Rules. Looking at the matter as a whole, we are satisfied that at the date of the decision he did meet those requirements and we accordingly substitute a determination allowing his appeal.
40. In the case of the third Appellant, NM, the Entry Clearance Officer's reasons for refusal were only partly generalised, and were not based solely on lack of intention to leave the United Kingdom. The Entry Clearance Officer noted that this Appellant failed to give a credible account of why his prospective employer had chosen him. As a result, the refusal was under sub-paragraphs (iv) and (v) as well as (vi). We have already indicated our view that the Immigration Judge did not err in her approach to the lack of evidence relating to employment. She did err in two of her conclusions which were based on no evidence and verge on the irrational. One was that a person speaking only Punjabi would have difficulty in finding employment in Bolton – which has a large Punjabi community – and the other was that the name "Mehmood" shared by three people suggests that they are related. We can only suppose that that conclusion was based on some imagined patronymic system, and despite the fact that the document from which this conclusion is derived (the letter from the restaurant) states also that the Appellant's own father's name was not Mehmood but Allah Ditta. Those errors were material: if the Immigration Judge had not made them, she might well have come to a different conclusion on the availability of accommodation and on the Appellant's circumstances in his own country.
41. We have therefore looked at the matter afresh, with the advantage of Ms Chowdhury's submissions. We consider, however, that the difficulties about the employment and accommodation still remain. There is still no satisfactory explanation for why the employer proposed to employ this Appellant, who appears to know very little about the employment he proposes to undertake. Furthermore, so far as accommodation is concerned, although we take the view that a person who spoke only Punjabi would be able to negotiate for accommodation in Bolton, there is no evidence to show what accommodation would be available to the Appellant, whether it would be adequate, and whether he would be able to afford it from his modest wages. The difference between the Appellant (who thought that accommodation was provided with the job) and the employer (who proposed simply to allow the Appellant time off in order to find accommodation) tends to show that no serious thought has been given to the question and tends also to suggest that employer and employee have not in fact settled the terms of the employment contract between them. In the circumstances, we have no confidence that the Appellant's expression of his intentions is to be believed. We are not satisfied that at the date of the decision the Appellant met the requirements of sub-paragraphs (iv), (v) or (vi) of paragraph 135I. His appeal must be dismissed.
42. The fourth Appellant was not represented before us. We have considered the papers with care. The Entry Clearance Officer's reasons for refusal were only partly based on generalities. He noted also that the Appellant was unable to give a credible reason for wanting to go to the United Kingdom to work. If it was to develop his skills, one would expect him to be able to say what skills he would develop; if it was to earn money, one would expect him to know how much money he would earn. In his determination, the Immigration Judge remarked that the refusal was not based solely on suspicion. He found that the Appellant had not been entirely transparent with his employer. We have some sympathy with the grounds of appeal in their complaint that the Immigration Judge should not have taken into account the fact that the Appellant apparently has an uncle in the United Kingdom; but in the whole circumstances of the case, that does not appear to us to be an error which was material. A considerable number of issues were raised by the Entry Clearance Officer, and the Appellant and his representatives have essentially failed to deal with them. We see no reason to differ from the Immigration Judge's view that the Appellant had failed to discharge the burden of proof; the Immigration Judge made no material error of law. His decision stands. We affirm the Immigration Judge's decision.

Summary

43. The appeals of AA and MFU are allowed; those of NM and MMAC are dismissed.

C M G OCKELTON

DEPUTY PRESIDENT

Date: