Badrul Bari v. Immigration Appeal Tribunal

BADRUL BARI v IMMIGRATION APPEAL TRIBUNAL

Court of Appeal (Civil Division)

[1987] Imm AR 13

Hearing Date: 6 October 1986

6 October 1986

Index Terms:

Working holidaymaker -- whether to comply with the requirements of the immigration rules a person seeking admission as a working holidaymaker has to satisfy the entry clearance officer that he will work while in the United Kingdom and that there is a reasonable prospect of his securing the kind of work he envisages. HC 169 para 30.

Held:

The appellant was refused entry clearance in Bangladesh when he applied as a working holidaymaker. His appeal was ultimately dismissed by the Tribunal because the Tribunal held that under the relevant paragraph of the rules, it was necessary for a person seeking entry in that category to show that he would work while in the United Kingdom and that he had a reasonable prospect of obtaining the kind of work he envisaged. On application for judicial review the application was dismissed. The interpretation placed by the Tribunal on the relevant paragraph was upheld. On appeal, the Court of Appeal allowed the appeal. Held: 1. On a true interpretation of the relevant rule, which has to be contrasted with the rules relating to visitors, there is no obligation on an intending working holidaymaker to show that he will work at all during his leave in that capacity. 2. It is not necessary for the intending working holidaymaker to put forward realistic proposals for the work that he might do, albeit that the proposals he puts forward may be a relevant consideration in testing the applicant's bona-fides.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Badrul Bari (QBD) [1986] Imm AR 264

Counsel:

A Riza for the appellant; Miss P Baxendale for the respondent PANEL: Sir John Donaldson MR, Dillon and Croom-Johnson LJJ

Judgment One:

DILLON LJ: This is an appeal by Mr Badrul Bari against the refusal by Russell J on 9 May 1986 of his application for judicial review of a decision of the Immigration Appeal Tribunal. It concerns an application by the appellant for leave to enter this country for what is conveniently called a "working holiday" under paragraph 30 of HC 169 of 1983. The history of the matter is long and perhaps somewhat unnecessarily complicated. The appellant was born on 15 October 1959. On 23 December 1983 an application that he had made to enter the United Kingdom as a visitor was refused by an entry clearance officer in Bangladesh on the ground that it was not thought to be a genuine application and that he would not leave at the end of the proposed visit. Instead of appealing, he applied on advice for entry clearance as a working holidaymaker. That was refused on the same ground. He had sought to enter for five months, and the entry clearance officer was not satisfied that he would leave at the end of the period. He appealed against that second refusal, and his appeal came before an adjudicator on 1 February 1985. The adjudicator was satisfied with the genuineness of the application but was not satisfied that the appellant was within the rule. I should at this stage read the wording of paragraph 30. It says:

"Young Commonwealth citizens aged 17 to 27 inclusive who satisfy the immigration officer that they are coming to the United Kingdom for an extended holiday before settling down in their own countries, and that they intend to take only employment which will be incidental to their holiday, may be admitted, on the understanding that they will not have recourse to public funds, for up to two years provided that they have the means to pay for their return journey. Where the immigration officer has reason to believe that recourse to public funds is likely, he will refuse leave to enter. If a passenger has previously spent time in the United Kingdom on a working holiday he may be admitted for a further period for the same purpose but the total aggregate period should not exceed two years."

The trouble felt by the adjudicator on this first hearing was that he felt that as the appellant had taken some form of employment in his own country he must be regarded as having settled down in his own country and therefore could not qualify as seeking to take an extended holiday before settling down in his own country. The decision was not clearly worded in some respects, but that was the point taken. The appellant appealed by leave to the Immigration Appeal Tribunal against that decision of the adjudicator. On 3 May 1985 the Appeal Tribunal allowed the appeal and remitted the case to the adjudicator to reconsider whether the appellant had settled down in his own country so at to be excluded from being admitted under paragraph 30. The adjudicator on 17 June 1985 adhered to his former view and again dismissed the appeal to him. Leave to appeal to the Immigration Appeal Tribunal was once again granted, this time on 10 July 1985. When the appeal came before the Immigration Appeal Tribunal, the Home Office indicated that it would not argue against the contention of the appellant that he was not settled in his own country and therefore the adjudicator was wrong in that ground of his decision in dismissing the appellant's appeal to him. But new points were taken by the Appeal Tribunal against the appellant, and it was on those new points that his appeal was dismissed. The words in paragraph 30 are "that they intend to take only employment which will be incidental to their holiday." The Appeal Tribunal construed that as importing that it was incumbent upon the appellant to show, firstly, that he genuinely intended to take employment and, secondly, that he had proposals for taking employment which were realistic. In the present case the appellant had some funds of his own. He also had a brother settled in this country who was prepared to support him. Therefore his need to take employment in the course of his proposed five months' holiday only arose if he was bored or if his finances went wrong and he had a financial need. As for his proposals, it appears that his English is not very fluent, but he thought that if need arose he could get a job as an assistant in a department store. The basis of the decision of the Appeal Tribunal was this: "The appellant's plans for the work incidental to a holidy envisaged by paragraph 30 of HC 169 were, in our view completely unrealistic. In that regard, we consider that his application could not succeed. However, on his own admission the appellant in any event had no intention of working unless he was bored. The sponsor supported that" -- the sponsor is his brother -- "by saying that there would be no necessity of working: the appellant would only work to occupy himself. We consider that circumstance to be fatal to the application. We cannot accept that a working holidaymaker can be one who will only work when bored and never of necessity. A person fortunate enough to be in that position cannot, in our view, by their very characteristics, be a working holidaymaker as envisaged by the rules. The rule envisages as working holidaymakers those who come with a certain amount of money but who will be obliged to take occasional work to obtain additional money to continue their holidays. To suggest that one who knows, before the holiday begins, that there will be no need at any time to work is a working holidaymaker is, in our view, to stand the rule on its head -- or to devise circumstances to fit the rule." The view of the Appeal Tribunal, which I have just quoted, was upheld by Russell J in his judgment under appeal. The working holiday paragraph has to be set beside the provisions in the rules which concern visitors. Paragraph 17 in relation to visitors provides as follows:

"A passenger seeking entry as a visitor, including one coming to stay with relatives or friends, is to be admitted if he satisfies the immigration officer that he is genuinely seeking entry for the period of the visit as stated by him and that for that period he will maintain and accommodate himself and any dependants, or will, with any dependants, be maintained and accommodated adequately by relatives or friends, without working or recourse to public funds, and can meet the cost of the return or onward journey. But in all cases leave to enter is to be refused if the immigration officer is not so satisfied, and in particular, leave to enter is to be refused where there is reason to believe that the passenger's real purpose is to take employment or that he may become a charge on public funds if admitted."

Then paragrpah 20 provides as follows:

"The immigration officer should impose a time limit on the period of the visitor's stay and on that of any dependants accompanying him. A period of 6 months will normally be appropriate; but a longer period (not exceeding one year) may be allowed to a passenger who satisfies the immigration officer of his ability to maintain and accommodate himself and his dependants for that time as required by paragraph 17 . . . Visitors should normally be prohibited from taking employment."

It seems to me that the gravamen of that paragraph, as of the "working holidays" paragraph 30, is, firstly, that the person coming as a visitor or as a working holidaymaker is not to become a charge on public funds and, secondly, that the person coming is not to work during his presence in the United Kingdom except, in the case of the working holidaymaker, if his employment is incidental to his holiday, that is to say, he finds that the funds he has are not enough to enable him to stay for as long as he wishes for the holiday without doing some work. It is not the purpose to require the person coming for a working holiday to show that he will be able to work, and there is no obligation on him to work. The obligation is the other way round, that he must show that he is not going to work except incidentally to his holiday. It seems to me therefore that the Appeal Tribunal misdirected itself in concluding that there was an obligation on the appellant to show that he would be working. There was ample material to satisfy them that he would not become a charge on public funds during the course of his stay in this country, assuming that, as the adjudicator held, he bona fide intended to return at the end of the stay. It follows that it cannot be necessary for the person coming to put forward realistic proposals for the work that he is going to do. That may be a relevant consideration in testing the bona fides of the proposed working holiday, but it cannot be a criterion on its own, as it had been treated by the Appeal Tribunal in the present case. The object of paragraph 30 is obviously to encourage visits on holiday by young Commonwealth citizens aged 17 to 27 inclusive. Such people may well not be able to afford a visit by way of holiday without doing incidental work and they may well not be able to work out completely realistic plans of what that work will be before they arrive. If they find that funds run out and they cannot get satisfactory work -- and obviously there are difficulties in certain parts of the country at any rate in present conditions on their getting work -- then the answer is for them to return to their home countries, they having ex hypothesi from the wording of the rule the means to pay for their return journey. The appellant will be 27 in little more than a week's time, but it is common ground between counsel that the phrase "aged 17 to 27 inclusive" will cover him until he becomes 28, so he is not faced with yet another hurdle on his 27th birthday. In these circumstances, for my part I would allow this appeal and quash the decision of the Immigration Appeal Tribunal and remit the case to the Immigration Appeal Tribunal.

Judgment Two:

CROOM-JOHNSON LJ: I agree.

Judgment Three:

SIR JOHN DONALDSON MR: I also agree.

DISPOSITION:

Application allowed.

SOLICITORS:

South Islington Law Centre, Treasury Solicitor

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