Strasburger v. Secretary of State for the Home Department

STRASBURGER v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/18620/77(1344)

Immigration Appeal Tribunal

[1978] Imm AR 165

Hearing Date: 4 September 1978

4 September 1978

Index Terms:

Self-employed person -- Writers and artists -- Artist -- Variation to self-employed status sought by art student -- Earnings insufficient to support such variation -- Sale by student of her art work -- Earnings from such sales unobjectionable if student requirements in the immigration rules complied with -- HC 82, para 20.

Student -- Art student -- Sale by student of her art work -- Earnings by students by sale of their art work unobjectionable if the student requirements in the immigration rules complied with.

Held:

The appellant citizen of the United States was admitted to the United Kingdom in May 1974 as an art student. In September 1976 she applied for a variation of her student status to that of a self-employed artist. She had for some time past been selling her work through art galleries and her earnings had increased from single figures in 1974 to @ 816 in 1976. The appellant's application was refused under para 20 of HC 82 on the ground that her income was inadequate to support her as a self-employed person; and the appellant's conduct in selling her art work whilst prohibited as a student from engaging in business was also regarded as a relevant fact under the general considerations of para 4 of HC 82 which would have justified refusal of her application. On appeal to the Tribunal from the dismissal of her appeal to an adjudicator, Held: (i) (dismissing her appeal), the appellant had not established that she was capable of supporting herself, and she was accordingly properly refused a variation of status to that of a self-employed person; but (ii) the fact that the appellant while an art student had been selling her art work should have been disregarded: such sales by art students were unobjectionable, provided the students complied with the student requirements in the immigration rules.

Counsel:

Miss Sarah Leigh, solicitor, for the appellant. K. E. R. Rogers for the respondent. PANEL: P. N. Dalton Esq (Vice-President), R. S. Charnley Esq, J. A. Noble Esq

Judgment One:

THE TRIBUNAL: The appellant, who is a citizen of the United States born on 24 October 1952, is appealing against the determination of an adjudicator, Mr W. E. M. Dawson, dismissing her appeal from a refusal by the Secretary of State to vary her leave to enter the United Kingdom so as to permit her to remain as a self-employed artist. Miss Lee Strasburger came to the United Kingdom in May 1974 to study ceramics and stayed in a flat, 3 Falcon Lodge, Oak Hill Park, London, NW3 which was owned by her parents. The appellant's father is an American citizen and her mother is a citizen of the United Kingdom. The appellant remained as a student until 8 July 1975 when she applied to stay here as a permanent resident, as a dependant of her parents, but because of her age (over 21) and circumstances she did not come within the provisions of para 39 of HC 81, and the application was refused. In September 1976 solicitors wrote to the Home Office on behalf of the appellant applying for permanent residence in the United Kingdom as a self-employed person. Evidence supplied by three art galleries on behalf of the appellant, showed her annual income from her work to be: for 1974 @ 3.34; for 1975 @ 309.64, and for 1976 @ 818.66. In his consideration of Miss Strasburger as a self-employed person under para 20 of HC 82 the Secretary of State found on the evidence submitted that the income derived from her work was inadequate for her maintenance. n3 Moreover, having regard to the manner in which the appellant had gained her last extension of stay (she had stated she wished to comfort her mother, temporarily in London, following a bereavement) and the fact that she engaged in business whilst prohibited from doing so, the Secretary of State considered as relevant para 4 of HC 82. n4 n3 Paragraph 20 of HC 82 provides as follows: "Where a person, for example a writer or an artist, was admitted because the Immigration Officer was satisfied that he could support himself without taking work for which a permit is necessary, an extension of stay not exceeding 12 months may be granted if the applicant can produce satisfactory evidence that he is so supporting himself and his dependants." n4 Paragraph 4 of HC 82 under the heading "general considerations" provides, inter alia, that in dealing with applications for variation of leave to enter under the main categories set out in the succeeding paragraphs "account is to be taken of all the relevant facts". And the following facts are amongst those considered relevant: "It will, for example, be relevant whether the person has observed the time limit and conditions subject to which he was admitted; whether in the light of his character, conduct or associations it is undesirable to permit him to remain;..." At the hearing of the appeal before the adjudicator the appellant was represented by Miss Sarah Leigh of Bindman & Partners, Solicitors, and Mrs B. Gray appeared for the respondent. It is apparent that at the first hearing of the appeal the adjudicator was unable to get a clear picture from the appellant of her costs in producing the various articles which she sold, and he adjourned the proceedings as he wished to see accounts of total purchases and sales. At the resumed hearing the adjudicator had before him what the solicitors described as a 'very simple' trading account for 8 months -- 1 December 1976 to 31 July 1977, and he also heard further evidence from the appellant but, as he said, he found it very difficult to make anything of her oral testimony. After referring to the figures, which he clearly found unreliable, the adjudicator said: "I accept that during the 8 months to which the trading account relates the appellant received @ 756 from sales of her work by galleries and what she earned from the sale of necklaces made by her. In my view nothing more than that was established on a balance of probabilities from the evidence given and produced as to the appellant's income, and it was not established that she was capable of supporting herself as set out in para 20 of HC 82, and this appeal fails on that ground alone." n3 n3 Paragraph 20 of HC 82 provides as follows: "Where a person, for example a writer or an artist, was admitted because the Immigration Officer was satisfied that he could support himself without taking work for which a permit is necessary, an extension of stay not exceeding 12 months may be granted if the applicant can produce satisfactory evidence that he is so supporting himself and his dependents." The adjudicator concluded his determination by considering the appellant's conduct in this matter and para 4 of HC 82. n4 The appellant had made no attempt to conceal the fact that as long ago as July 1975 her real desire had been to remain here permanently, and in the adjudicator's view when she returned here in November 1975 she misrepresented her intentions in that study was not her real intention but settlement. Also the appellant, who at no time had been authorised to engage in any business or profession, first started selling paintings in the United Kingdom in 1973 and increasingly engaged in selling her own work, to the extent that by September 1976 she was claiming to be self-supporting. The adjudicator said that in his opinion the fact that the appellant had by September 1976 earned @ 816 that year and had ceased to study would warrant a refusal of the application in question even had the appellant met the requirements of para 20 of HC 82. n4 Paragraph 4 of HC 82 under the heading "general considerations" provides, inter alia, that in dealing with applications for variation of leave to enter under the main categories set out in the succeeding paragraphs "account is to be taken of all the relevant facts". And the following facts are amongst those considered relevant: "It will, for example, be relevant whether the person has observed the time limit and conditions subject to which he was admitted; whether in the light of his character, conduct or associations it is undesirable to permit him to remain;..." The appellant applied to the Tribunal for leave to appeal on the following grounds: "1. The learned adjudicator was wrong in disregarding the distinction between a person who, for example, buys the lease of a shop and sets up in business without authority, and a person in the appellant's situation, an art student, who starts selling the paintings and prints which are the by-product of her work, in assessing the considerations under paragraph 4 of the Immigration Rules (HC 82). 2. The learned adjudicator was wrong in disregarding the evidence of her bank statement that the appellant was supporting herself adequately from her work. 3. The learned adjudicator was wrong in taking 'study' and 'settlement' as incompatible intentions in the appellant (paragraph 5 of his determination)." Leave to appeal was granted. Miss Leigh put in evidence a letter her firm had received from the Home Office, concerning the application by a client of the firm (not the appellant) for an extension of stay as a person of independent means. The letter stated that persons of independent means were welcome to supplement their income by selling the results of their own creative endeavours in such fields as painting, writing or photography. The letter however made it clear that such persons would not be allowed to engage in activities which entailed competing in the normal labour market without permission. Before the adjudicator Miss Leigh had sought to distinguish the appellant's case from one such as Premji n5, in that the appellant's products were the by-product of her studies and not a calculated business enterprise. The adjudicator said that he would readily agree that it could be said that too serious a view should not be taken of a student who sells the odd picture, but this did not seem to him to describe the appellant, who in September 1976 supplied evidence that her earnings for that year had been @ 816.66. It seems to us, however, that if a student complies with the requirements of the student rules the fact that he sells the odd picture, or indeed all he produces himself, can be disregarded. n5 Premji v Secretary of State for the Home Department, TH/557/74. The appellant Mr M. F. I. Premji, while in the United Kingdom as a student subject to a condition precluding him from entering into business, purchased a tobacconist's business and then, shortly after the expiry of his student leave, made an application for an extension of stay as a businessman. His application was refused; his appeal against that refusal was dismissed by an adjudicator on 18.6.74, and the Tribunal refused Mr Premji leave to appeal further, holding that his purchase of a business had been in breach of his leave to enter and that the decision of the Secretary of State was in accordance with he law and the immigration rules. The appellant was obviously anxious to stay in this country, in which her mother (who is a United Kingdom citizen) lives, in order to continue with the artistic work she likes doing and appears to be doing well and we do not think that her actions show a calculated disregard of the immigration rules which would warrant the refusal, because of the provisions of para 4 of HC 82, of her application to remain here as a self-employed artist. The appellant, however, had to establish that she was capable of supporting herself and in our opinion she fell far short of doing this before the adjudicator.

DISPOSITION:

Appeal dismissed.