Asylum and Immigration Tribunal
NS (Working holidaymaker; intention to work) India  UKAIT 00090
THE IMMIGRATION ACTS
Heard at Field House
On 8th May 2007
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Nichols
The Entry Clearance Officer, New Delhi
For the Appellant: Not represented.
For the Respondent: Mr P Deller, Home Office Presenting Officer
Paragraph 95 (vi) of HC 395 is to be read as requiring an applicant for entry clearance as a working holidaymaker to the UK to demonstrate an intention to work.
DETERMINATION AND REASONS
1. The appellant is a citizen of India. He appeals against the decision of the respondent on 16th March 2006 to refuse to grant him entry clearance as a working holidaymaker for a period of two years.
2. The respondent was not satisfied that the appellant was intending to take employment incidental to a holiday or that he intended to leave the UK at the end of his working holiday. The reasons for the decision were as follows:
“I note that you have never previously taken a holiday, and were unable to describe in any detail the sights you wish to see in the UK. Taking a holiday now is presumably not a decision you have taken lightly and it is reasonable to expect you to have at least researched some aspects of the country in which you intend to spend two years. If you were genuinely seeking entry as a working holidaymaker, I would expect you to have at least planned some aspects of your trip.
The working holidaymaker scheme requires that employment is only incidental to a holiday. Your economic circumstances in India, combined with your description of how you intend to spend your time in the UK do not satisfy me, on the balance of probabilities, that this is your intention. The working holidaymaker scheme also requires that you demonstrate that you have sufficient funds to support yourself. I am not satisfied, on the balance of probabilities, that you have demonstrated this for the period you are not allowed to work. Your circumstances in India and your description of your intentions in the UK suggest, on the balance of probabilities that your true intention is to secure full-time employment. Taking account of all the above, I am not satisfied, on the balance of probabilities that you are intending to take only employment incidental to a holiday, and not to engage in business, or to provide services as a professional sportsperson, and in any event not to work for more than twelve months during your stay.
You have been employed in India since March 2005 and I do not find it credible that you should give up your job in order to go abroad on holiday for two years. You have shown no evidence that you will be able to resume your employment after such a protracted absence. I do not find it credible that your employer would hold your position open for this period of time. This coupled with the fact that you are unable to provide anything but the barest information about your proposed intentions in the UK, causes me to doubt the credibility of your application. I am not satisfied, on the balance of probabilities that you intend to leave the UK at the end of your working holiday.
The working holidaymaker scheme is of limited duration. A decision to take a working holiday for two years is presumably not one that is taken lightly. I would consider it reasonable for you to be able to explain the benefits of taking such a decision in your present circumstances. You failed to do this, which means that I am not satisfied, on the balance of probabilities, that your intensions are as stated and that you intend to leave the UK at the end of your proposed working holiday.
Whilst it is reasonable that a young Commonwealth citizen should seek to spend up to two years as a working holidaymaker, you need to satisfy me that you intend to leave the United Kingdom at the end of it. This can only be judged by taking into consideration all of your circumstances. I am mindful of the fact that you have little in the way of prospects for the future in India, having given up your job. Against this background, you seek to spend two years on a working holiday in the United Kingdom. Your account of your circumstances in India has failed to satisfy me, on a balance of probabilities that you intend to leave the UK after that period.
You state that you earn RS5, 000 (£62) a month as a consultant. You have been in this job since March 2005. You have provided no evidence of your employment. In support of your application, you have produced your personal account containing RS2-lakh (£2,500) of which there have been large recent deposits. I am therefore not satisfied as to the provenance of these funds. Taking into account of your personal circumstances, I am not satisfied, on the balance of probabilities that you intend to leave the UK on completion of your visit.”
3. Immigration Judge Hopkinson heard the appeal on 16th January 2007. He heard evidence from the appellant's sponsor who is his uncle and the key part of this evidence, and the basis for the Immigration Judge’s decision to dismiss the appeal, is set out at paragraph 8 as follows:
“The sponsor told me that he had invited the appellant over so that he could get some experience of travelling around the country. The sponsor did not think the appellant would work whilst he is here because jobs are difficult to get. The sponsor had not made any enquiries about the possibility of the appellant getting a job, nor had the appellant himself. It did not matter to the sponsor if the appellant was unable to get a job.”
4. We should say at this point that this evidence directly contradicted what the appellant is recorded as having said to the respondent in reply to questions at the interview as follows:
“Q7. What do you know about the working holidaymaker scheme?
A. One year work and one year holiday.
Q8. What preparation for this hol?
A. I have done shopping, clothes for myself; I have informed my maternal aunt about my visit.
Q9. What prep for employment?
A. My maternal uncle has business and a shop. He will arrange job for me.
Q10. How did you find out about it?
A. From the TV.
Q11. Do you intend to work during your stay?
A. Yes. Will work for nine months and rest of time have holiday.
Q12. Have you any employment arranged at this stage?
Q13. Has your work been arranged?
A. My uncle said I can work in his shop.
Q14. Who is doing that job at present?
A. His wife is helping him.
Q15. What hours will he be working and what is the wage?
A. Eight hours, six days a week at £8 an hour.”
5. We have also noted that it contradicts what the appellant said in his application form. At Section 5, which asks about the applicant’s stay in the UK; the appellant stated that he intended to holiday for one year and work for one year. He repeats this in the annex to the application form in his personal statement.
6. It was the sponsor's evidence however that troubled the Immigration Judge and it was on that evidence that he reached his conclusion that the appellant was not genuine in his intentions. He said as follows at paragraph 13:
“I am not satisfied that the appellant genuinely intends to enter the UK as a working holidaymaker. This is because he has carried out no research to ascertain the prospects of obtaining employment in the UK, and because of the difficulty identified by the sponsor in the appellant getting a job. It is necessary under the working holidaymaker scheme that the applicant intends to fund some or part of his holiday by working for up to half his time in the UK. The scheme requires a genuine intention only to take employment incidental to a holiday. The appellant has not satisfied me that he genuinely intends to seek work to fund some of his expenses on the holiday. I find that the appellant's true intention is to have an extended holiday largely at the expense of the sponsor for up to two years. Effectively he is coming as a family visitor or tourist, but for a period of more than six months allowed under the Rules for this category of visitor. Therefore I find that he does not qualify for entry clearance under Rule 95.”
7. The appellant challenged the decision generally in his application for reconsideration; however the Senior Immigration Judge who ordered reconsideration identified that there was arguably a potential error of law in the Immigration Judge’s approach. It was clear the Immigration Judge had dismissed the appeal for a reason not identified by the respondent, namely that he did not believe the appellant intended to seek work at all. The Senior Immigration Judge thought it arguable that as paragraph 95 of HC 395 had now reverted to permitting “only employment incidental to a holiday” that it did not require an intention to work. He thought it arguable that the current wording of the Rule should be interpreted in the same way as the Court of Appeal had in Bari  Imm AR 13, in which it was held that there was no obligation on an intending working holidaymaker to show that he will work at all or to put forward any realistic proposal for work, albeit that the latter may be relevant to an applicant’s bona fides.
8. Paragraph 95 of HC 395 has been the subject of various amendments in recent years. At the time Bari was decided the relevant rule was paragraph 30 of HC 169 and it was rather different in a number of material respects to the current Rule. We shall return to the relevance of this later. Paragraph 95 states as follows:
“95. The requirements to be met by a person seeking leave to enter the United Kingdom as a working holidaymaker are that he:
(i) is a national or citizen of a country listed in Appendix 3 of these Rules, or a British Overseas citizen; a British Overseas Territory citizen; or a British national (overseas); and
(ii) is aged between 17 and 30 inclusive or was so aged at the date of his application for leave to enter; and
(iii) (a) is unmarried and is not a civil partner or
(b) is married to, or the civil partner of, a person who meets the requirements of this paragraph and the parties to the marriage or civil partnership intend to take a working holiday together; and
(iv) has the means to pay for his return or onward journey; and
(v) is able and intends to maintain and accommodate himself without recourse to public funds; and
(vi) is intending only to take employment incidental to a holiday, and not to engage in business, or to provide services as a professional sportsperson, and in any event not to work for more than twelve months during his stay; and
(vii) does not have dependent children any of whom are 5 years of age or over or who will reach 5 years of age before the applicant completes his working holiday; and
(viii) intends to leave the UK at the end of his working holiday; and
(ix) has not spent time in the United Kingdom on a previous working holidaymaker entry clearance; and
(x) holds a valid United Kingdom entry clearance, granted for a limited period not exceeding two years, for entry in this capacity.”
9. The appellant was not legally represented at the hearing before us. The sponsor was unable to attend; however he had asked his daughter to attend on behalf of the appellant. Miss Degan told us that she had simply been asked to attend by her father the sponsor and that she had no experience of the law and would not be able to assist us in relation to those matters. We decided to proceed with the hearing. We were satisfied that the appellant's side of the case was represented in the manner he chose.
10. Mr Deller said that when the Court of Appeal decided on the matter in 1987 there was nothing in the wording of the paragraph as it then stood to suggest that an intention to work was required. He reminded us that this Rule has undergone several changes over the years including for example the use of the word “integral” and then again “incidental” in relation to the nature of the employment that can be undertaken in the context of a working holiday. He said that although the form of words that the Court of Appeal had considered in Bari was similar in some respects, he would draw our attention to the fact that the word “only” had changed position under paragraph 95(vi). Mr Deller put this change down to the passage of time rather than any significant change in meaning.
11. He did acknowledge, however, that although the Immigration Directorate’s Instructions of April 2004 were clear that an intention to work was required, there was scope for confusion from the Home Office website pages entitled “Working in the UK” which gives information about working holidaymakers and appears to indicate that working is an available option rather than a requirement. Nevertheless he submitted that the Rule was aimed at working holidaymakers: so that was an indication of the intention behind the provision. He asserted that the correct interpretation of the Rule was that it did require an intention to work. He reminded us that it was not possible for an applicant to change category from a visitor to a working holidaymaker, nor to obtain leave to remain in that category. It was also an “on entry” category only, in other words the applicant has to satisfy the Entry Clearance Officer and must hold a valid entry clearance in this capacity on entry to the UK. Referring again to the Court of Appeal decision in Bari where there had been a comparison with the provision of the Rules relating to visitors at that time, he said that it was then possible for a visitor to extend a visit from six months to twelve months: in other words it was an entirely different situation.
12. The issue in this case is whether the Immigration Judge materially erred in law in reaching his conclusion that paragraph 95(vi) required the appellant to demonstrate an intention to work. We start by examining in more detail the Court of Appeal decision in Bari. We have also considered two decisions of the Immigration Appeal Tribunal, Acheampong (18348) IAS 1999 Vol 2 No 6, and Singh (Surjit) (14334) (1997, unreported), solely because, like Bari, they are mentioned at paragraph 9.68 of the sixth edition of Macdonald’s Immigration Law and Practice.
13. In Bari, the Court of Appeal held that on a true interpretation of the relevant rule, which they found had to be contrasted with the rules relating to visitors, there was no obligation on an intending working holidaymaker to show that he would work at all during his leave in that capacity. Paragraph 30 of HC 169 stated as follows:
“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 the 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 for the total aggregate period should not exceed two years”.
14. It can be seen that the Rule explicitly referred to applicants having an extended holiday before they settled down in their own countries. The main emphasis however was on the requirement not to have recourse to public funds during the duration of the holiday provided there was also the means to pay for a return journey. Dillon LJ in the Court of Appeal recognised that the emphasis of the Rule was to protect public funds. He contrasted the Rule with the then provisions as to visitors at paragraph 20 of HC 169 and concluded that the same emphasis was present in that Rule. He expressed it thus:
“It seems to me that the gravamen of that paragraph [paragraph 20], 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, as 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.”
15. The provisions of paragraph 30 were different from the current Rule not only in terms of scope and content but also, as the Court of Appeal highlighted, the Rule was aimed at ensuring that the working holidaymaker had no recourse to public funds and there was no specific requirement to take employment. The current Rule, by contrast, requires a positive ability to fund the working holiday, as we discuss later.
16. The decisions in Acheampong and Singh were also concerned with the interpretation of paragraph 95(vi) of HC 395 as it was then drafted. At the time these appeals were heard the relevant part of the Rule stated as follows:
“(vi) is intending to take employment incidental to a holiday but not to engage in business, provide services as a professional sportsman or entertainer or pursue a career in the United Kingdom;”
17. What is immediately apparent from this is that the word “only” had, at that time, been removed from paragraph 95(vi). It is perhaps not surprising then that the Tribunal in Singh, applying the ordinary meaning to those words found that it was “patently clear” from the use of both the title “working holidaymaker” and the wording of the requirements, that an intention to obtain employment incidental to the holiday had to be established. They also had regard to a guidance leaflet issued by the Foreign and Commonwealth Office entitled “British Immigration and Visa Requirements – Information for Working Holidaymakers (Commonwealth Citizens Only)”. In the guidance notes of this document it stated that a working holidaymaker should be coming to the United Kingdom with the intention of taking work as part of his or her holiday. Having considered these matters the Tribunal came to the conclusion that the decision in Bari, relating as it did to an earlier Immigration Rule, was not relevant to the appeal before them. The Tribunal acknowledged that the Foreign and Commonwealth Office guidance leaflet was not a part of the Immigration Rule but stated that it did accurately explain the requirements and the purpose of the Rule, as then drafted.
18. In the decision of Acheampong the Tribunal was dealing with exactly the same version of the Rule as in Singh; however it reached the opposite view. In Acheampong the Tribunal considered whether the new paragraph 95 as it then was had the effect of overturning the decision in Bari. They were persuaded that because a Home Office information leaflet on working holidaymakers had failed to take the opportunity to make it explicit that an applicant had to demonstrate to an ECO an intention to work, that no such intention was included in the Rule. Thus they arguably ignored what the Rule actually said.
19. All of these decisions dealt with either a different Rule or a different version of paragraph 95(vi) of HC 395. Paragraph 30 of HC 169 had an entirely different emphasis to the current Rule. Paragraph 95(vi) of HC 395, as it stood at the time of the decisions in Singh and Acheampong clearly required, on its face, an intention to work. The Tribunal in Acheampong held, apparently, that the force of the clear words was modified by the guidance leaflet’s omission of any reference to the change. We note that the wording of paragraph 95(vi) at the time of the decisions in Singh and Acheampong differed from the current wording solely to the extent that the word “only” was then omitted. We shall return to the effect of the inclusion of the word “only” again in the current version of the Rule shortly; however we gain little assistance from any of these decisions as to how the current version of the Rule should be interpreted. There is no doubt in our minds that Bari is not to be taken as an authority on the current meaning of the current rules. It was superseded by the introduction of HC 395 (if not before), with the latter’s entirely different formulation of the requirements. The decision in Singh is not helpful because the Tribunal there were concerned with the ordinary meaning of paragraph 95(vi) of HC 395 as it was then drafted and there is yet a different version before us. The same applies to the decision in Acheampong although we would comment that that decision ought not to be relied upon in any event since the Tribunal appeared to give undue weight to what a Home Office information leaflet on working holidaymakers had not said, as opposed to having regard to what the Rule did say.
20. We turn then to the Rule before us, which we have set out earlier. What is clear from the wording of paragraph 95 is that it contains a number of requirements that are conjunctive: an applicant must satisfy an Entry Clearance Officer that he meets all of the substantive requirements in order for entry clearance to be granted. The requirements are all essential and an applicant who fails to satisfy an Entry Clearance Officer as to any one of them will not be successful. We are particularly concerned with the wording of paragraph 95(vi) which we repeat here for ease of reference:
“(vi) is intending only to take employment incidental to a holiday, and not to engage in business, or to provide services as a professional sportsperson, and in any event not to work for more than twelve months during his stay;”
This in our judgment is incomprehensible. The present placement of the word “only” makes the Rule nonsense. It is clear from paragraph 95 that there are a lot of intentions that a successful applicant must have. So to describe this intention as the only one (which is what “is intending only” as distinct from “intends only employment incidental” appears to mean) does not make any sense. In Bari, of course, the wording of the paragraph as it then stood – “that they intend to take only employment which will be incidental to their holiday” – was clear. As Dillon LJ said, if a working holidaymaker found that he did not have enough funds to complete his holiday, he could take work provided that it was incidental to the holiday. The version of the Rule that the Tribunal considered in Singh was also clear, as the Tribunal found. It is not clear in this version of the Rule. What is clear is that the draftsman of the changes introduced subsequent to (but not so far as we are aware because of) Singh and Acheampong, cannot be seen as intending to revive the Court of Appeal’s decision in Bari. If he had intended that, he would have used the words in HC 169 that the Court interpreted in that case.
21. Nevertheless, we must try to understand paragraph 95(vi) as presently formulated. There are clearly dangers in taking it in isolation. We read it in the context of the Rules as a whole and, importantly, compare the current provisions as to visitors at paragraph 41 of HC 395 in order to understand the correct interpretation of the paragraph. We have also had regard to what is said in the current Immigration Directorate Instructions (the IDIs); although this cannot be binding upon us in relation to how we interpret this provision of the Rule.
22. The current Rule continues to emphasise the requirement not to have recourse to public funds; however it is now expressly stated that an applicant must have the ability to maintain and accommodate himself. In addition he must have the means to pay for his return or onward journey. There is therefore a positive emphasis on an applicant’s ability to meet the financial commitment of an extended holiday.
23. We have considered the relationship between this Rule and the current provisions as to visitors at paragraph 41 of HC 395. The latter has changed considerably over the years (and since the decision in Bari) and restrictions have been imposed. It is now the case that those who seek to enter the United Kingdom as visitors may only come for a maximum of six months and, inter alia, the taking of employment is expressly prohibited. Under HC 169, an applicant for a visitor visa did not have to demonstrate that he did not intend to take employment although leave to enter was to be refused if an immigration officer suspected that employment was the real purpose behind the trip. There is now a restricted right of appeal against the refusal of a visit visa (family visits only). For a period previously there was no right of appeal at all except in extremely limited circumstances (Section 13(3A) of the Immigration Act 1971 as amended by Section 10 of the Asylum and Immigration Appeals Act 1993) but at the time Bari was decided there was a full, in country, right of appeal. We have compared the provisions as to working holidaymakers with the provisions as to visitors and in our view it would be surprising if it were possible for an applicant under paragraph 95 to come to the United Kingdom for a six month visit or even longer – up to two years – with a right of appeal against an adverse decision without a family sponsor, which would follow if there is no requirement to show an intention to work under paragraph 95. Similarly a person who is aged 17 could come for two years without meeting any of the requirements that would normally attach to a child visitor (see, in contrast, paragraphs 46A and 46B of HC 395). These factors, together with the changed emphasis of the Rule, have led us to the conclusion that the Rule requires a working holiday to be something different from a long visit.
24. It is relevant to note here the IDIs and the information contained on the Home Office website. We are aware also that it is the Diplomatic Service Procedures (DSPs) that contain guidance to ECOs on dealing with applications for entry clearance; however nobody has suggested that the DSPs are different from the IDIs and the comment we make below on the latter will be equally applicable to the former. It is clear from the April 2004 IDIs, Chapter 4, Section 2, Annex C at paragraph 2.1 that the primary reason for coming to the United Kingdom must be a holiday. It is also clear from the provisions that an applicant must be able to demonstrate that he has the means to pay for a return or onward journey and the ability to maintain and accommodate himself without recourse to public funds.
25. In the IDIs at Section 2 guidance is given about employment in the context of a working holiday. Paragraph 2.1 deals with what is meant by intention to work as follows:
“A working holidaymaker should come to the United Kingdom with the intention of taking paid work here as an incidental part of his working holiday. If he does not intend working he will not meet the requirements of the working holidaymaker Rules and will be refused entry clearance.”
26. Paragraph 2.2 states in relation to work incidental to a working holiday:
“Working holidaymakers are expected to take work in the United Kingdom as an incidental part of their working holiday. Those wishing to enter in the category should treat the work that they do as a purely incidental part of their holiday (which should be their primary reason for being here) rather than being the reason for which they have sought entry to the United Kingdom. Accordingly, working holidaymakers must not intend to spend more than twelve months of their stay in employment, and must intend to spend the rest of their stay holidaying.
Entrants in the category may take most employment of their choice, including voluntary work.”
27. The Instruction then goes on to deal with the prohibition on engaging in business or services as a professional sportsperson and the restriction on working in any event for longer than twelve months. Earlier, at paragraph 1.4, it deals with funding and support and states that a working holidaymaker must be able to satisfy the Entry Clearance Officer that he can support himself for at least two months after arrival or at least one month if he has a job arranged in advance.
28. There is some confusion on the Home Office website. In describing the nature of the working holidaymaker scheme, it states as follows:
“You can work, but only provided this is incidental to the holiday. The holiday should be the primary reason for your stay”.
29. This, arguably, comes close to suggesting that work is an option provided it is incidental. However, the website then goes on to describe how an individual can qualify as a working holidaymaker and states there that an applicant must intend to take employment as part of his holiday. Later on in answer to the question how much and what work can be done, again it is expressly stated that there must be an intention to take work in the UK, only as an incidental part of the holiday and that the applicant must intend to spend no more than twelve months working. This therefore does not differ in any material respect from the IDIs.
30. What is also clear from the IDIs, and the same will apply to the DSPs, and the public information disseminated is that there is no requirement on an applicant to show that he has a job arranged in the United Kingdom and that there is no restriction on the type of work that might be undertaken provided it is incidental to the holiday. For example it is clear that work might be voluntary work. If there is no work arranged in advance, an applicant must at least show a reasonable prospect of obtaining work in the UK of one sort or another, if he is to show the requisite genuine intention. However when he works and for how long within the twelve month time limit is a matter for the applicant provided any planned work can be properly described as incidental to the holiday.
31. Taking account of all these factors; which are in summary, the emphasis on the ability to finance the working holiday within the Rule itself; the potential serious conflict with the visitor provisions, and having regard to the Home Office IDIs, we have concluded that an applicant under paragraph 95 must demonstrate an intention to work. It will be a matter for an ECO and on appeal an Immigration Judge to determine having regard to all the circumstances whether or not that intention has been shown, taking account of the appellant's ability to maintain and accommodate himself within the Rule. We acknowledge that it was found there was no requirement to work under paragraph 30 of HC169. However, the Rule has been amended several times, no doubt in response to changes in patterns of migration across the world and the need to tighten control and regulate the entry of non-nationals into the UK. Parliament is entitled to place restrictions and requirements on the grant of entry clearance. In our view it has done so in relation to the requirements to be met by working holidaymakers.
32. We turn then to the decision of the Immigration Judge before us. It follows on our analysis that he was correct in his conclusion that the appellant needed to show the requisite intention to take employment. The reasons he gave at paragraph 13 for finding the appellant had not demonstrated that intention are in our view adequate and proper. Although the appellant had indicated in his application form and in his interview that he did intend to work, as we have set out earlier there is a discrepancy in what he said. It was open to the Immigration Judge to consider what the sponsor had told him in evidence compared to what the appellant had said to the interviewing officer. The sponsor's evidence was clear: there had been no enquiries made by either he or the appellant about finding suitable work, contrary to what the appellant had said in interview that his uncle had said he could work in his shop. The Immigration Judge also pointed out that the appellant had done nothing to ascertain the prospect of obtaining employment in the UK. It might be said, although it has not been said in this case, that this particular point took the appellant by surprise and that he should have been given time to deal with it. It is, however, clear that this reconsideration has afforded the appellant every opportunity to deal with the issue. There is nothing before us additional to what was before the Immigration Judge. The Immigration Judge was entitled to base his decision on the clear oral evidence before him.
33. Since the appellant could not meet this requirement in the Rule it was not necessary for the Immigration Judge to go on to consider any other issue as the appellant could not succeed in any event.
34. The original Tribunal did not make a material error of law and the original determination of the appeal shall stand.
Senior Immigration Judge Nichols