[2007] UKAIT 53
- Case title: BO (Domestic worker, connection with sponsor)
- Appellant name: BO
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Nigeria
- Judges: Mr S L Batiste, Mr Hon Justice Hodge
- Keywords Domestic worker, connection with sponsor
The decision
Asylum and Immigration Tribunal
BO (Domestic worker – connection with Sponsor) Nigeria [2007] UKAIT 00053
THE IMMIGRATION ACTS
Heard at Field House
On 22 May 2007
Before
Mr Justice Hodge, President
Senior Immigration Judge Batiste
Between
Appellant
and
ENTRY CLEARANCE OFFICER, LAGOS
Respondent
Representation:
For the Appellant: Mrs O Adegburin, Sponsor.
For the Respondent: Mr S Ouseley, Presenting Officer.
Under Rule 159A an Immigration Judge should look at least at the final year of the domestic worker/sponsor relationship, but may also take into account a longer period to ascertain the extent of their connection, and should do so if there is some temporary aberration in the final year from the established long-term pattern.
DETERMINATION AND REASONS
1. The Appellant is a citizen of Nigeria. The Respondent seeks reconsideration of the determination of Immigration Judge C H Bennett, allowing the Appellant’s appeal against his decision on 21 June 2006 to refuse her entry clearance under paragraph 159A of the Immigration Rules (HC 395 as amended) as a domestic worker of the Sponsor.
2. Paragraph 159A states as follows.
159A. The requirements to be met by a person seeking leave to enter the United Kingdom as a domestic worker in a private household are that he:
(i) is aged 18-65 inclusive;
(ii) has been employed as a domestic worker for one year or more immediately prior to application for entry clearance under the same roof as his employer or in a household that the employer uses for himself on a regular basis and where there is evidence that there is a connection between employer and employee;
(iii) that he intends to travel to the United Kingdom in the company of his employer, his employer's spouse or civil partner or his employer's minor child;
(iv) intends to work full time as a domestic worker under the same roof as his employer or in a household that the employer uses for himself on a regular basis and where there is evidence that there is a connection between employer and employee;
(v) does not intend to take employment except within the terms of this paragraph; and
(vi) can maintain and accommodate himself adequately without recourse to public funds; and
(vii) holds a valid United Kingdom entry clearance for entry in this capacity.
3. The Immigration Judge's material conclusions are as follows.
“9. Against this background, I am satisfied that the Appellant had been employed as a domestic worker by the Sponsor since March 2004 - and therefore for more than one year before June 2006 (when the Appellant applied for entry clearance). It would not be realistic to contend that she had, at all times between March 2004 and June 2006, been employed "under the same roof" as the Sponsor. I am not satisfied that she had been. For the bulk of the time the Sponsor had been in the United Kingdom. But I am satisfied that, as at 21 June 2006, the Appellant was and had for more than 12 months, been employed at S Street and in the household which the Sponsor used for herself on a regular basis. As at June 2006 there was, or was about to be, a temporary hiatus in the regularity with which the Sponsor would be able to use the accommodation at S Street - because of her pregnancy. But I am not satisfied that that temporary hiatus was such as to lead to the conclusion that as at 21 June 2006, the household was not one which she did not use on a "regular basis". In determining whether this was on a "regular basis", I must have regard to the settled order or general pattern of use - rather than which temporarily obtained on account of the Sponsor's pregnancy. And in considering the settled pattern, I take into account both that one of the reasons for the Sponsor's regular visits in the past no longer obtained, i.e. that her daughter was by that stage in the United Kingdom and that she had taken on the responsibility of the sub-postmastership - which was likely to restrict the frequency with which she could travel to Nigeria and the length of time for which she could stay there. As against that I accept that she had spent about one month there between December 2005 and January 2006 and about a further one month in May/June 2006. Because I accept that the Sponsor had employed the Appellant primarily to look after her daughter but also as a domestic assistant since March 2004, I am satisfied that there was a connection between them.
10. I have no reason to doubt, and I am satisfied, in the light of what I have said above in relation to the Sponsor's credibility, that if entry clearance had been granted, the Appellant would have travelled to the United Kingdom in the company of either the Sponsor or her husband - and that was the Appellant’s intention at that time.
11. For substantially the same reason, I am satisfied that it was the Appellant’s intention to work full-time as a domestic worker under the same roof as the Sponsor at the Sponsor’s home. In so far as it is necessary for me to make an alternative finding, I am satisfied that that house was also the household which the Sponsor used for herself on a regular basis. And for the reason which I have given above I am satisfied that there was a connection between the Appellant and the Sponsor, arising out of the employment of the Appellant since March 2004.
12. In the light of what I have stated above, I am satisfied that the Appellant did not intend to take employment other than for the Sponsor and on the terms indicated, i.e. that she did not intend to take employment except as provided for in paragraph 159A.
4. The Immigration Judge, having found that all of the other requirements of the Rule had been satisfied, allowed the Appellant's appeal.
5. An order for reconsideration was made on 29 January 2007 to enable the Respondent to argue that the Immigration Judge had not properly applied the terms of the relevant Rule to his findings of fact which included his conclusion that there had been a "temporary hiatus” in the regularity with which the Sponsor used S Street.
6. Before us, Mr Ouseley submitted that the Immigration Judge had accepted that there was a hiatus within the final 12 month period and submitted that spending only two months in 2006 was not enough. In support of this submission he referred us to paragraph 15 of the determination of the Tribunal in NG (“On a regular basis” paragraph 159(ii)) Bulgaria [2006] UKAIT 00020, which stated as follows.
15 However, that is plainly not the meaning that the expression “on a regular basis” is intended to bear in the context of paragraph 159A(ii). On the contrary, it is clearly intended to bear the alternative meaning contained in paragraph 4 of the dictionary definition set out above, namely “habitually or customarily used”. That was the view adopted by the Designated Immigration Judge, albeit not in precisely those terms. It is a view which in our opinion he was right to adopt. The purpose of the reference to “on a regular basis” in paragraph 159A(ii) is to ensure that there is a genuine connection between the household in which the relevant applicant is employed as a domestic worker and his employer. That requirement would scarcely be served if it were sufficient for the employer to use that household only on an infrequent basis. By way of example, it might be argued that attendance at the household on but a single occasion each year on 25 January to celebrate Burns Night could properly be described as “regular” attendance, but only in the sense of being attendance which recurred at a fixed interval, and clearly not in the sense of being attendance for habitual or customary use. In the context of paragraph 159A(ii), it is plainly the latter sense in which the term is being used.
Mr Ouseley submitted that the “temporary hiatus” in the Sponsor’s use of S Street in the year immediately prior to the application, meant she was not in attendance for her “habitual or customary use”.
7. The Sponsor submitted that the facts exemplified in NG were completely different from the facts in this case and argued that there was no material error of law by the Immigration Judge in his analysis of the situation. During the period of the Appellant's employment by her, i.e. since 2004, she had and regularly used her home in Nigeria as the Immigration Judge properly accepted on the evidence before him.
8. In considering these submissions, we would first observe that there is no justification in the wording of the Rule to limit consideration of the use by the Sponsor of her home in Nigeria to a short period before the application, such as to the hiatus in June 2006 due to pregnancy, as Mr Ouseley has sought to do. The purpose of the Rule is to enable an employer who has employed a domestic worker for at least a year in a home overseas which he/she uses on a regular basis, to bring that employee to the UK to work for him/her here. The Tribunal in NG was concerned with a potential ambiguity in the meaning of “regular”, as to whether it could embrace the infrequent occupation of a home but in a regular pattern. It correctly concluded that it did not. That clearly reflects the purpose of the Rule. It is not about property rights but about the establishment of a connection between the employer and the employee, and it says so expressly in sub-paragraph (ii).
9. To establish the evidence of such a connection, subparagraph (ii) requires that the employee should have been employed by the employer for one year or more immediately prior to the application for entry clearance. To assess whether an adequate connection has been made, an Immigration Judge should therefore look at least at the final year of the relationship but may also take into account a longer period to ascertain the extent of the connection, and should do so if there is some temporary aberration in the final year from the established long-term pattern.
10. In this case the Appellant made her application on 16 June 2006 and her employment with the Sponsor began at some unspecified date in 2004. The Immigration Judge, in paragraph 5(e) of the determination assessed the evidence before him of the Sponsor's visits in the 16 month period from March 2005 to June 2006 as follows. There was one month from March 2005. There were two months between July and September 2005. There was a further month from December 2005 to January 2006. Finally, in May 2006, there was a one month visit until June 2006. Thus in the period of 16 months from the beginning of 2005 until June 2006 the Sponsor had spent a total of five months at her home in Nigeria, where the Appellant was employed and included in that period was a temporary hiatus when the Sponsor was pregnant.
11. We can see no error of law in the Immigration Judge's approach or in his interpretation of the Rule. He sought to establish the facts about the Sponsor's visits to her home in Nigeria over a reasonable period of time up to the date of application (being a period in excess of the minimum 12 months specified in the Rule). He had reference to the reasons behind the visits, and the reason for not visiting more often in 2006. Hence his reference to a temporary hiatus due to pregnancy. There is nothing inconsistent in his approach with either the wording of the Rule itself or the guidance of the Tribunal in NG. Then, having adopted the correct approach in law, he made what is essentially a finding of fact, to the effect that in his judgment, and taking into account the impact of the Sponsor's pregnancy towards the end of the period, this constituted the use by the Sponsor of her Nigerian home on a “regular basis”. Ms Ouseley says that this was not enough, but this finding of fact cannot be impeached as an error of law unless it amounts to perversity. In our view, the Immigration Judge was fully entitled to conclude that four separate visits amounting in total time to about five out of eighteen months constituted adequate evidence of use of the property on a regular basis and of the consequent connection between the Appellant and the Sponsor. It cannot properly be said to be perverse. Thus we conclude that there is no material error of law by the Immigration Judge.
DECISION
12. The Immigration Judge did not make a material error of law and the original determination of the appeal shall stand.
Signed Dated 24 May 2007
Senior Immigration Judge Batiste
BO (Domestic worker – connection with Sponsor) Nigeria [2007] UKAIT 00053
THE IMMIGRATION ACTS
Heard at Field House
On 22 May 2007
Before
Mr Justice Hodge, President
Senior Immigration Judge Batiste
Between
Appellant
and
ENTRY CLEARANCE OFFICER, LAGOS
Respondent
Representation:
For the Appellant: Mrs O Adegburin, Sponsor.
For the Respondent: Mr S Ouseley, Presenting Officer.
Under Rule 159A an Immigration Judge should look at least at the final year of the domestic worker/sponsor relationship, but may also take into account a longer period to ascertain the extent of their connection, and should do so if there is some temporary aberration in the final year from the established long-term pattern.
DETERMINATION AND REASONS
1. The Appellant is a citizen of Nigeria. The Respondent seeks reconsideration of the determination of Immigration Judge C H Bennett, allowing the Appellant’s appeal against his decision on 21 June 2006 to refuse her entry clearance under paragraph 159A of the Immigration Rules (HC 395 as amended) as a domestic worker of the Sponsor.
2. Paragraph 159A states as follows.
159A. The requirements to be met by a person seeking leave to enter the United Kingdom as a domestic worker in a private household are that he:
(i) is aged 18-65 inclusive;
(ii) has been employed as a domestic worker for one year or more immediately prior to application for entry clearance under the same roof as his employer or in a household that the employer uses for himself on a regular basis and where there is evidence that there is a connection between employer and employee;
(iii) that he intends to travel to the United Kingdom in the company of his employer, his employer's spouse or civil partner or his employer's minor child;
(iv) intends to work full time as a domestic worker under the same roof as his employer or in a household that the employer uses for himself on a regular basis and where there is evidence that there is a connection between employer and employee;
(v) does not intend to take employment except within the terms of this paragraph; and
(vi) can maintain and accommodate himself adequately without recourse to public funds; and
(vii) holds a valid United Kingdom entry clearance for entry in this capacity.
3. The Immigration Judge's material conclusions are as follows.
“9. Against this background, I am satisfied that the Appellant had been employed as a domestic worker by the Sponsor since March 2004 - and therefore for more than one year before June 2006 (when the Appellant applied for entry clearance). It would not be realistic to contend that she had, at all times between March 2004 and June 2006, been employed "under the same roof" as the Sponsor. I am not satisfied that she had been. For the bulk of the time the Sponsor had been in the United Kingdom. But I am satisfied that, as at 21 June 2006, the Appellant was and had for more than 12 months, been employed at S Street and in the household which the Sponsor used for herself on a regular basis. As at June 2006 there was, or was about to be, a temporary hiatus in the regularity with which the Sponsor would be able to use the accommodation at S Street - because of her pregnancy. But I am not satisfied that that temporary hiatus was such as to lead to the conclusion that as at 21 June 2006, the household was not one which she did not use on a "regular basis". In determining whether this was on a "regular basis", I must have regard to the settled order or general pattern of use - rather than which temporarily obtained on account of the Sponsor's pregnancy. And in considering the settled pattern, I take into account both that one of the reasons for the Sponsor's regular visits in the past no longer obtained, i.e. that her daughter was by that stage in the United Kingdom and that she had taken on the responsibility of the sub-postmastership - which was likely to restrict the frequency with which she could travel to Nigeria and the length of time for which she could stay there. As against that I accept that she had spent about one month there between December 2005 and January 2006 and about a further one month in May/June 2006. Because I accept that the Sponsor had employed the Appellant primarily to look after her daughter but also as a domestic assistant since March 2004, I am satisfied that there was a connection between them.
10. I have no reason to doubt, and I am satisfied, in the light of what I have said above in relation to the Sponsor's credibility, that if entry clearance had been granted, the Appellant would have travelled to the United Kingdom in the company of either the Sponsor or her husband - and that was the Appellant’s intention at that time.
11. For substantially the same reason, I am satisfied that it was the Appellant’s intention to work full-time as a domestic worker under the same roof as the Sponsor at the Sponsor’s home. In so far as it is necessary for me to make an alternative finding, I am satisfied that that house was also the household which the Sponsor used for herself on a regular basis. And for the reason which I have given above I am satisfied that there was a connection between the Appellant and the Sponsor, arising out of the employment of the Appellant since March 2004.
12. In the light of what I have stated above, I am satisfied that the Appellant did not intend to take employment other than for the Sponsor and on the terms indicated, i.e. that she did not intend to take employment except as provided for in paragraph 159A.
4. The Immigration Judge, having found that all of the other requirements of the Rule had been satisfied, allowed the Appellant's appeal.
5. An order for reconsideration was made on 29 January 2007 to enable the Respondent to argue that the Immigration Judge had not properly applied the terms of the relevant Rule to his findings of fact which included his conclusion that there had been a "temporary hiatus” in the regularity with which the Sponsor used S Street.
6. Before us, Mr Ouseley submitted that the Immigration Judge had accepted that there was a hiatus within the final 12 month period and submitted that spending only two months in 2006 was not enough. In support of this submission he referred us to paragraph 15 of the determination of the Tribunal in NG (“On a regular basis” paragraph 159(ii)) Bulgaria [2006] UKAIT 00020, which stated as follows.
15 However, that is plainly not the meaning that the expression “on a regular basis” is intended to bear in the context of paragraph 159A(ii). On the contrary, it is clearly intended to bear the alternative meaning contained in paragraph 4 of the dictionary definition set out above, namely “habitually or customarily used”. That was the view adopted by the Designated Immigration Judge, albeit not in precisely those terms. It is a view which in our opinion he was right to adopt. The purpose of the reference to “on a regular basis” in paragraph 159A(ii) is to ensure that there is a genuine connection between the household in which the relevant applicant is employed as a domestic worker and his employer. That requirement would scarcely be served if it were sufficient for the employer to use that household only on an infrequent basis. By way of example, it might be argued that attendance at the household on but a single occasion each year on 25 January to celebrate Burns Night could properly be described as “regular” attendance, but only in the sense of being attendance which recurred at a fixed interval, and clearly not in the sense of being attendance for habitual or customary use. In the context of paragraph 159A(ii), it is plainly the latter sense in which the term is being used.
Mr Ouseley submitted that the “temporary hiatus” in the Sponsor’s use of S Street in the year immediately prior to the application, meant she was not in attendance for her “habitual or customary use”.
7. The Sponsor submitted that the facts exemplified in NG were completely different from the facts in this case and argued that there was no material error of law by the Immigration Judge in his analysis of the situation. During the period of the Appellant's employment by her, i.e. since 2004, she had and regularly used her home in Nigeria as the Immigration Judge properly accepted on the evidence before him.
8. In considering these submissions, we would first observe that there is no justification in the wording of the Rule to limit consideration of the use by the Sponsor of her home in Nigeria to a short period before the application, such as to the hiatus in June 2006 due to pregnancy, as Mr Ouseley has sought to do. The purpose of the Rule is to enable an employer who has employed a domestic worker for at least a year in a home overseas which he/she uses on a regular basis, to bring that employee to the UK to work for him/her here. The Tribunal in NG was concerned with a potential ambiguity in the meaning of “regular”, as to whether it could embrace the infrequent occupation of a home but in a regular pattern. It correctly concluded that it did not. That clearly reflects the purpose of the Rule. It is not about property rights but about the establishment of a connection between the employer and the employee, and it says so expressly in sub-paragraph (ii).
9. To establish the evidence of such a connection, subparagraph (ii) requires that the employee should have been employed by the employer for one year or more immediately prior to the application for entry clearance. To assess whether an adequate connection has been made, an Immigration Judge should therefore look at least at the final year of the relationship but may also take into account a longer period to ascertain the extent of the connection, and should do so if there is some temporary aberration in the final year from the established long-term pattern.
10. In this case the Appellant made her application on 16 June 2006 and her employment with the Sponsor began at some unspecified date in 2004. The Immigration Judge, in paragraph 5(e) of the determination assessed the evidence before him of the Sponsor's visits in the 16 month period from March 2005 to June 2006 as follows. There was one month from March 2005. There were two months between July and September 2005. There was a further month from December 2005 to January 2006. Finally, in May 2006, there was a one month visit until June 2006. Thus in the period of 16 months from the beginning of 2005 until June 2006 the Sponsor had spent a total of five months at her home in Nigeria, where the Appellant was employed and included in that period was a temporary hiatus when the Sponsor was pregnant.
11. We can see no error of law in the Immigration Judge's approach or in his interpretation of the Rule. He sought to establish the facts about the Sponsor's visits to her home in Nigeria over a reasonable period of time up to the date of application (being a period in excess of the minimum 12 months specified in the Rule). He had reference to the reasons behind the visits, and the reason for not visiting more often in 2006. Hence his reference to a temporary hiatus due to pregnancy. There is nothing inconsistent in his approach with either the wording of the Rule itself or the guidance of the Tribunal in NG. Then, having adopted the correct approach in law, he made what is essentially a finding of fact, to the effect that in his judgment, and taking into account the impact of the Sponsor's pregnancy towards the end of the period, this constituted the use by the Sponsor of her Nigerian home on a “regular basis”. Ms Ouseley says that this was not enough, but this finding of fact cannot be impeached as an error of law unless it amounts to perversity. In our view, the Immigration Judge was fully entitled to conclude that four separate visits amounting in total time to about five out of eighteen months constituted adequate evidence of use of the property on a regular basis and of the consequent connection between the Appellant and the Sponsor. It cannot properly be said to be perverse. Thus we conclude that there is no material error of law by the Immigration Judge.
DECISION
12. The Immigration Judge did not make a material error of law and the original determination of the appeal shall stand.
Signed Dated 24 May 2007
Senior Immigration Judge Batiste