Tribunal decisions

The decision

Asylum and Immigration Tribunal

DD (paragraph 159A: connection/employment) Sri Lanka [2008] UKAIT 00060

THE IMMIGRATION ACTS

Heard at Field House
On 15 July 2008

Before

MR JUSTICE HODGE OBE, PRESIDENT
SENIOR IMMIGRATION JUDGE P R LANE

Between

Appellant
and

ENTRY CLEARANCE OFFICER, COLOMBO

Respondent

Representation:

For the appellant: Mr E. Fripp, Counsel, instructed by Hameed & Co. Solicitors
For the respondent: Mr G. Saunders, Senior Home Office Presenting Officer

(1) The requirement in paragraph 159A(ii) of the immigration rules that there be evidence of a connection between the employer and the employee is of particular importance. It will be a question of fact in each case whether the requisite connection is proved. Although the connection will usually spring from the fact of employment in the employer’s household, something more than a mere employer-employee relationship and presence in such a household is required.
(2) Paragraph 159A(ii) does not require the employee to have been continuously employed by the employer, provided that the totality of the periods of employment amounts to at least a year. It is, however, extremely unlikely that occasional or irregular employment will enable an employee to show a sufficient connection with the employer.

DETERMINATION AND REASONS

1. The appellant, a citizen of Sri Lanka born on 8 August 1958, applied for entry clearance to the United Kingdom as a domestic worker in a private household, pursuant to paragraph 159A of the immigration rules. On 11 October 2007 the respondent refused the appellant's application and the appellant appealed to the Tribunal against that decision. Her appeal was heard at Newport on 6 March 2008 by an immigration judge, who dismissed it. Reconsideration of the immigration judge's decision was ordered under section 103A of the Nationality, Immigration and Asylum Act 2002 on 15 April 2008 on the ground that the immigration judge may have erred in law in concluding that paragraph 159A(ii) imposed a requirement that the appellant had been continuously employed by her employer as a domestic worker for one year or more immediately prior to the application for entry clearance.

2. Paragraph 159A reads 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 [sic] 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 appellant's employer is an 86 year old retired Professor of Biochemistry and Toxicology who is a citizen of both Sri Lanka and Australia. For over twenty years he worked for the World Health Organisation in Geneva and, later, Rome. From 1980 to 1985 he was Professor and Head of the Department of Food Science at the University of Sebha, Libya. His last post was as visiting Toxicologist and Tutorial Project Supervisor in the RMIT University, Melbourne, Australia.

4. As might be expected of a person of his age, the employer suffers from a number of ailments, including diabetes, hypertension and ischemic heart disease. The employer nevertheless has over the past ten years divided his time between the United Kingdom and Sri Lanka, where he owns a flat.

5. The immigration judge had before him a considerable amount of written evidence, including a statement of the employer, and heard oral evidence from a friend of the employer, who attended in place of the employer because the latter was at the time living in Colombo. The immigration judge made certain adverse credibility findings regarding the evidence. Although criticism of those findings was made in the grounds accompanying the application for reconsideration, they were not found to disclose any properly arguable error of law and Mr Fripp did not pursue that criticism at the reconsideration hearing.

6. The facts as found by the immigration judge can be summarised as follows. For at least ten years up to the date of the application, the appellant had been employed by the employer as a live-in carer at the employer's home in Colombo whenever the employer had been resident in that city. At paragraph 33, the immigration judge recorded the evidence that the employer had spent some 40 months in Sri Lanka over the past ten years and that it was his practice to spend four months a year there. At paragraph 39, the immigration judge recorded the Presenting Officer as attempting to contend that, so far as the past four years were concerned, the period spent by the employer was more akin to two months rather than four; but the immigration judge considered that the Presenting Officer had been unable to make good that contention.

7. The immigration judge found that, when the employer was not in Sri Lanka, the appellant is not paid by him; nor did the immigration judge accept that the appellant enjoyed free use of the room in which she lived when the employer was present, as a payment in kind for looking after the flat whilst he was absent.

8. At paragraph 45, the immigration judge found:-

."I am satisfied that the appellant has acted for a carer for the sponsor [employer] when he has been in Sri Lanka and that there is evidence of a connection between the sponsor and the appellant in this regard. The evidence falls short of meeting the [requirements of paragraph 159A] because the reality is that the evidence only proves, if I accept it which I am prepared to do, that the appellant has cared for the sponsor during his visits and has been paid for this time only. The proposal now is that the appellant should become a full-time carer paid every month once she arrives in the United Kingdom with the sponsor".

9. It is not disputed by the respondent that the employer has the need of a residential carer in the United Kingdom. The employer's proposal is that the appellant should perform that function for him, on a continuous basis, following his failure to find another suitable person.

10. The fact that the immigration judge regarded the lack of continuity in the appellant's employment as determinative of the appeal it is further borne out by paragraph 51 of the determination, where the immigration judge found that the appellant lived in her own home in Bollegalla:-

"… but goes to the flat to care for the sponsor when he is there and is paid during these periods. This does not equate to continuous employment even if I were to accept the submission made by Counsel for the appellant, Mr Fripp, that the payments amount to more than what a Sri Lankan carer would earn in a year. The issue is not how much the appellant is paid but whether the employment is continuous and sufficient in the circumstances to meet the above requirements".

11. For the respondent, Mr Saunders informed us that he did not submit that paragraph 159A(ii) contains a requirement that the employment should be continuous; rather, he submitted that, on the facts of the present case, the appellant had failed to show that the employer had used the Colombo flat on a regular basis.

12. In that regard, Mr Saunders relied upon NG ("On a regular basis" paragraph 159A(ii)) Bulgaria [2006] UKAIT 00020. In that case, the Tribunal found that 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 applicant is employed as a domestic worker and the employer of that applicant. The Tribunal found that:-

"[this] 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 describes 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" (paragraph 15).

13. In BO (Domestic worker – connection with sponsor) Nigeria [2007] UKAIT 00053, it was submitted by the respondent that the finding of an immigration judge that there had been a "temporary hiatus” in the sponsor's use of her household in Nigeria in the year immediately preceding the application, meant that the appellant could not satisfy the requirements of paragraph 159A(ii). For the appellant, however, it was submitted that the evidence showed that, viewed over the longer period of the appellant's employment and the sponsor's use of the household, it could be said that the latter had regularly used her home in Nigeria. In paragraphs 8 and 9 of the determination, the Tribunal had this to say:-

"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, sub-paragraph (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”.

14. In the case before us, we have already seen how the immigration judge regarded the lack of continuity of employment as decisive. There is nothing in his determination to show that he rejected the evidence that, over the past ten years, the employer had spent around four months of the year in Sri Lanka, in order to escape, so he said, the English winter weather. On the basis of NG and BO, such a use of his Colombo home was plainly "regular" within the meaning of paragraph 159A(ii). The immigration judge accepted that there was evidence of a "connection" between the appellant and the employer. As can be seen from BO, that requirement of paragraph 159A(ii) is of particular importance. It will be a question of fact in each case to determine whether the requisite connection is proved. Although the connection will usually spring from the fact of employment in the household something more than a mere employer-employee relationship and presence in such a household is required. In the present case, it cannot be doubted that a genuine and significant relationship exists between the appellant and her employer, forged over the years during which she has cared for the employer when he has been living in the Colombo flat. The appellant said in her statement "[the employer] stays there all the time. I take him out for walks, make sure that he takes his medicine on time, cook his meals, wash his clothes, do the shopping for him, help him with his bath and generally do all the household duties".

15. Mr Fripp submitted that if continuous employment had been intended to be a requirement, the drafter of paragraph 159A could and would have inserted the word "continuously" before "employee" in sub-paragraph (ii). As we have already indicated, Mr Saunders did not demur on this issue. The Tribunal considers that Mr Saunders was right not to do so. On the proper interpretation of paragraph 159A(ii), the employee is not required to have been continuously employed by the employer, provided that the totality of the periods of employment amounts to at least a year. It is, however, extremely unlikely that occasional or irregular employment will enable an employee to show a sufficient connection with the employer.

16. But in this case the immigration judge made a material error of law in treating the lack of continuity of employment as decisive. The employer used the Sri Lankan household on a regular basis. During all the time he was doing so, the appellant was living under the same roof, administering to his needs in a highly personal way. Looking back from the period immediately prior to the application, the appellant had been employed by the employer for a period well in excess of one year, albeit not continuously.

17. There is no issue regarding the appellant's ability to show compliance with the other requirements of paragraph 159A. Accordingly, having found that the immigration judge materially erred in law in his interpretation of paragraph 159A(ii), the Tribunal hereby substitutes for his decision a decision of our own, allowing the appellant's appeal under the immigration rules.

Decision

(1) The appeal under the immigration rules is allowed.

(2) We direct the issue of entry clearance to the appellant under paragraph 159A of the immigration rules.

Signed Date

Senior Immigration Judge P R Lane