[2006] UKAIT 67
- Case title: SK (Proof of indirect racial discrimination)
- Appellant name: SK
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: India
- Judges: Mr C M G Ockelton, Deputy President, Senior Immigration Judge Grubb, Immigration Judge Baker
- Keywords Proof of indirect racial discrimination
The decision
SK (Proof of indirect racial discrimination) India [2006] UKAIT 00067
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Newport Date of Hearing: 31 May 2006
Date of Promulgation: 05 September 2006
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Grubb
Immigration A D Judge Baker
Between
Appellant
and
THE ENTRY CLEARANCE OFFICER, NEW DELHI
Respondent
Representation:
For the Appellant: Miss S J Muthusagaran, Turpin, Miller & Higgins Solicitors
For the Respondent: Mr A Sharland, Counsel instructed by the Treasury Solicitor
1. The Court of Appeal, House of Lords and Luxemburg authorities on race and sex discrimination in employment are to be used as a guide for the establishment of race discrimination in appeals to this Tribunal; but the questionnaire process available to employees is not applicable in the AIT, and nor is the Burden of Proof Directive. The requirement to identify a comparator (actual or hypothetical) who would be treated better than the appellant remains, however. 2. The demographic process of establishing disproportionate impact by statistics (as expounded in Jones v Chief Adjudication Officer) is an appropriate process for establishing indirect racial discrimination in the AIT; but care is necessary to ensure that the statistics are derived from comparable populations. The question is not whether different groups do comply equally with any condition but whether there is a difference between groups in whether they can comply. 3. The more complex the issue, the less likely broadly-based statistics are to be of help. Where all the requirements of a particular paragraph of HC 395 have to be satisfied, general figures relating to grants and refusals may reveal little about ability to comply with any individual condition. 4. Where statistics relate to self-selected groups (e.g. applicants for entry clearance) they are perhaps even less likely to assist. 5. Where the statistics do show a disproportionate impact on a particular racial or national group, the burden shifts to the Respondent to show that the condition in question is justifiable within the meaning of Balcombe LJ’s dicta in Hampson v DES, and Barry v Midland Bank Plc. The Tribunal must take into account the impact on the complainant (which is likely to include an assessment of the purpose for which admission or leave was sought) and the Respondent’s reasons for imposing the condition; it must strike a balance between them and give reasons for the decision it reaches.
DETERMINATION AND REASONS
1. The appellant is a citizen of India. He appeals against the decision of the respondent on 3 August 2004 refusing him entry clearance to the United Kingdom as a working holidaymaker. His grounds of appeal raise issues of race discrimination as well as issues under the Immigration Rules. For that reason arrangements were made for it to be considered by a panel of three legally qualified members so that guidance could be given on such appeals, if appropriate.
2. The appellant’s application form is undated but there is the respondent’s date stamp for 25 March 2004. It is an application for a working holidaymaker’s visa for two years. It acknowledges that the appellant had previously been refused a visa as a student, following an application on 9 July 2003. It indicates that the appellant has a brother in the United Kingdom and that the only address at which he will stay is a named address in Coventry. He gives his job as “salesman (partner) in footwear business”, which he has held since 1994. He gives his monthly income as “50%”. He says that he has a £1,000 available to him for his stay and that his parents are going to pay for the trip. He says he will take “any suitable job” in the United Kingdom and under “other information” says that “from the last 8-10 years I am doing business in footwear”.
3. The appellant was interviewed by the respondent on 3 August 2004. He confirmed that he was fit and well enough to be interviewed, not tired or confused, and that he understood the interpreter. He said all the details on his application form were correct. He said that he would stay in the United Kingdom for two years and that the reason he was going for a working holiday was because it was for two years. He gave an indication of a few sights that he would see in the United Kingdom. He said that he would work at Kentucky Fried Chicken, and produced a letter which the respondent comments was of “very poor quality”. He said that he would be able to get a job there although he had no experience and no qualification because “my brother works as supervisor”. He said that his brother was paying for the trip, and he produced evidence that his brother had funds. He was asked about his work:
“Q17: What do you do in India?
A: Salesman in a footwear shop
Q18: Income?
A: 6,000 per month
Q19: Given leave for this period? Evidence?
A: Yes, no evidence
Q20: How did you manage to gain leave from your job for two years?
A: My partner will look after my work
Q21: Why leave your studies/career at this stage for a two year break?
A: This is a working holiday scheme.”
He said that he would go back to his work when he returned to India and that he would benefit by having had experience of working in an advanced country and would use that experience. He was asked to comment on the Entry Clearance Officer’s view that he appeared to have little incentive to leave the UK after two years to return to India. His comment was “my brother has send sponsorship, so I cannot spoil his record by overstaying”.
4. The respondent refused the application. The notice of refusal is in the following terms.
“I am not satisfied, on the balance of probabilities, that your application meets the requirements of paragraph 95, and in particular:
I am not satisfied you intend to leave the UK at the end of your working holiday.
BECAUSE
I note that you have never previously taken a holiday overseas, and were unable to describe in any detail the sights you wished to see in the United Kingdom. It is only reasonable to expect you to have at least researched some aspects of the country in which you intend to spend two years.
You have been employed in India for a number of years, and I do not find it credible that at this stage of your life you should seek to go abroad on holiday for two years. Neither have you satisfied me that you will be able to resume your employment after such a protracted absence. I consider it unrealistic that you would jeopardise your career for the sake of a holiday.
You have been unable to provide a satisfactory explanation as to how the working holiday scheme would be of benefit to you, and what lasting advantages you would derive from it.
Whilst it is reasonable that a young commonwealth citizen should seek to spend two years as a working holiday maker, you need to satisfy me that you have the intention to leave the United Kingdom. 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 realistic prospects for the future in India. Against this background, you seek to spend two years on a working holiday in the United Kingdom, and your account of your circumstances in India has simply failed to satisfy me that you would leave after that period.
The evidence of your proposed employment is vague, in the circumstances, I am not satisfied that it constitutes genuine and meaningful employment.
I therefore refuse your application.”
5. The grounds of appeal to an Adjudicator simply assert that “the appellant intends to leave the UK at the end of the working holiday”. He has been permitted to vary them in the terms of paragraph 8 of the skeleton argument now produced on his behalf:
“(a) that the decision is not in accordance with Immigration Rules
(b) that the decision is otherwise not in accordance with the law
(c) that the decision is unlawful by virtue of Section 19B of the Race Relations Act of 1976 (c.74) (discrimination by public authorities).”
6. We heard oral evidence from the sponsor. He began by confirming as true the contents of his witness statement made on 2 February 2006, which we will need to summarise. In it he says that he works full-time at Kentucky Fried Chicken in Coventry. When the appellant was applying for a visa, he spoke to the manager, who wrote a letter confirming an offer of employment at Kentucky Fried Chicken in Oxford. Since the application, the sponsor had moved permanently to Coventry as his wife and children had now joined him in the United Kingdom, so the job offer in Oxford would no longer be valid.
7. On the appellant’s employment history, the sponsor comments that the appellant left school when he was quite young and has had a number of jobs since. He is a hard worker and would not find it difficult to find work when he needed it. He is described by the sponsor as speaking “good English”. At the time of making the statement, the appellant is said to have been working in a photography shop belonging to another brother of the appellant and the sponsor; before that he had been working in a shoe shop for about ten years until the shop closed down. When he returns to India after his working holiday he plans to open a shoe shop; he is also proposing to get married then.
8. The sponsor asserts that the appellant has no intention of overstaying any visa, and points out that in 2001 and 2005 the sponsor’s parents (who are, of course, also the appellant’s parents) visited the sponsor for two months and returned within the currency of their visas. The sponsor acknowledges that the appellant has made an application to enter the United Kingdom as a student. The sponsor says that the appellant did not know that he had a right of appeal against the refusal; then he decided that he did not want to undertake any more studies.
9. So far as finances are concerned, the sponsor says that his parents “have also always agreed to assist my brother financially if needed”, but that he, the sponsor, intends to support the appellant while he is in the United Kingdom. He has over £6,000 standing to his name in two bank accounts. He has adequate accommodation for the appellant in his home. Although the appellant has not arranged a list of sights to see, both he and the sponsor have some plans. As the sponsor says, “this is only a short trip to experience life in another country, spend time with me and work for a while”.
10. In his oral evidence the sponsor confirmed that he was able to pay for the appellant’s trip, but his parents had also given the appellant £1,000 “expenses”. When asked how he would ensure that the appellant returned to India at the end of a working holiday, the sponsor said that he would not support him any more after his visa expired. In cross-examination, Mr Sharland pointed out that when the appellant was interviewed he said that the trip was going to be funded by the sponsor, not by his parents: the sponsor said that it was right to say that he was going to pay for the appellant’s trip and his expenses here, apart from £1,000 pocket money from his parents.
11. We asked the sponsor a number of questions about his employment and the accommodation, arising from the documents that had been produced. The sponsor confirmed that his present work was at Kentucky Fried Chicken; he was unable to give us the address where he worked or the name of the company or the name of his manager. He did show us some payslips. He said that his work was in the kitchen at Kentucky Fried Chicken; he had moved to Coventry in December 2005 and was now being paid only just over half of what he was being paid in Oxford. He said “yes. I have applied for another job.” (His present income appears to be about £130 per week).
12. The house mentioned in the appellant’s application as the place where he would stay for the two years of his working holiday was, the sponsor told us, bought in 2003. He did not go and live in it. He rented it out to some people whose name he gave us. They paid him rent of about £350 per week. He did not move into the house until his wife and child joined him in 2005. He confirmed that since he has owned the house he has used his ownership of it to support two applications for entry clearance. Some of the relevant papers are amongst the documents supporting this appeal. There is a declaration signed by the sponsor and dated 18 March 2004 containing at paragraph 6, the following:
“I own [the house in question] aforesaid three-bedroom property. There is ample accommodation there to accommodate my brother [the appellant].”
The documents relating to the ownership of the property were produced to support the sponsor’s application for entry clearance for his wife and son. There is a letter dated 4 November 2003, signed by Nisar Khan, a partner in a firm of solicitors called The Law Partnership in Coventry. The second paragraph of the letter reads:
“I confirm that the property was purchased by [the sponsor] on 15 August 2003 and that he was granted the right of occupation as owner on that date.”
13. The other partner in the same firm of solicitors, Abdul Salam Khan, signed a statement dated 19 November 2003 specifically prepared, following a personal visit to the property. After setting out that the sponsor owns the property and describing it, the statement continues as follows:
“The property is currently occupied by [the sponsor] … I am satisfied that the addition of one more female adult would not render the property overcrowded within the meaning of part X of the Housing Act.”
14. From the sponsor’s evidence before us it became clear, and he accepted, that he had not been living in the property in question when the letter or either of the statements was prepared. The property had been occupied by his tenants as their home. We suggested that it followed that on the dates those letters were prepared and on the dates of any decisions in applications supported by them, the property was not actually available for the accommodation of any applicant as those documents suggest and state. The sponsor’s response was that his tenants had vacated the property when he had asked them to, as they said they would.
15. There was no other oral evidence. We do not need to summarise any of the other documentary evidence relating to the appellant’s application itself. The allegations of racial discrimination were supported by documents including a Home Office consultation document on the Working Holidaymakers Scheme apparently dating from 2002, statistics for working holidaymakers from 2002 to 2005, further similar statistics contained in a ministerial written answer on 12 September 2005, and the report of the independent monitor appointed under the Immigration and Asylum Act 1999 to monitor refusals of entry clearance where there is no right of appeal. In her submissions Miss Muthusagaran referred to Anya v University of Oxford [2001] EWCA Civ 405 and CS [2006] UKAIT 00004. Anya is a case relating to racial discrimination in employment. The authorities on that issue and on those relating to sex discrimination have relevance to this appeal, as the legislation is in similar terms.
The Appeal under the Immigration Rules
16. We will look first at the appeal on the grounds that the decision was not in accordance with the Immigration Rules. The question we have to decide is whether, on the material now available to us, we are satisfied that the appellant should have been granted, rather than refused, the visa he sought. The burden of proof is on him; the standard is the balance of probabilities. We are concerned with the position as it was at the date of the decision, but in making our decision we take in to account all the evidence relevant to the position on that date, even if the evidence itself postdates the decision.
17. There is a multitude of problems in the evidence said to support this appeal. It is right to say, as has been said on behalf of the appellant, that an applicant for a working holidaymaker’s visa does not have to have firm plans for how he will spend his time for the whole of his trip; is allowed to fund the trip in a variety of different ways; and does not have to show that the trip would be of any particular benefit to him. But one of the requirements of the Rules is that he intends to leave the United Kingdom at the end of his working holiday. Nobody pretends that it is easy to assess whether that requirement has been met. It has to be assessed by looking at all the evidence. The principal primary evidence is likely to be the appellant’s own assertion that he will leave. A decision-maker, whether the Entry Clearance Officer or the Tribunal, therefore needs to assess whether the appellant’s statements are sufficiently worthy of credit for this particular assertion to be persuasive.
18. In the present case we see, firstly, that the appellant stated quite clearly in his application form that his parents would pay for his trip, but in his interview that his brother would pay. He said that he would work at Kentucky Fried Chicken, because his brother was a supervisor there, but that alleged job offer has never been substantiated and in our view the Entry Clearance Officer was right to make the point that it was “of very poor quality”: in particular it bears no resemblance to the letter from the same employer confirming the sponsor’s employment. The appellant gave his own occupation as that of a partner in a shoe shop but neither then or subsequently has he provided any explanation of how the business was to continue for two years with one of its partners absent in England. The appellant said that he would be in the UK for two years, giving as his reason only that that was the period for which working holidaymaker visas were available, but his sponsor thought that his visit would be a short one. The appellant responded to one of the questions at his interview on the basis that he did not speak English: the sponsor described the appellant as speaking good English.
19. Further, as appeared for the first time in the oral evidence before us, the written evidence as to accommodation was at the date of the decision entirely unreliable. We appreciate that the sponsor owned the house and that he intended to recover possession of it when his wife came to the United Kingdom, but the position was that he had let it to tenants who occupied it as their home and he was by no means assured of being able to recover possession of it at any particular time that he chose. In particular, the position at the date of the decision was that the sponsor was still working in Oxford and, as we understand the matter, he had no intention of working in Oxford and living in this house in Coventry. The house was to accommodate him and his family when they came: at that time he ceased working in Oxford. Thus, as it now appears, the evidence as to accommodation was simply inconsistent with the evidence as to employment either of the sponsor or of the appellant. The sponsor’s employment is itself of some importance in this case, because of the claim made by both the appellant and the sponsor that the expenses of the trip would be paid by the sponsor. At the date of the decision the sponsor had an income of some £250 per week and we accept that that would have been sufficient. But the position is also that the application was on the basis that accommodation would be in Coventry and the evidence before us shows that the accommodation in Coventry only became available when the sponsor moved there and occupied his house there, at which point also he took a pay cut of nearly 50% and had the responsibility of supporting his family in this country.
20. The position is that, looking at the evidence as a whole as we do, we are entirely satisfied that neither the appellant nor the sponsor has been entirely frank in their approach to this application and appeal. It is for the appellant to establish that he intended to leave the United Kingdom at the conclusion of his visit and, in the circumstances, we see no reason to believe his word.
21. We therefore conclude that the appellant has not discharged the burden of proof and will dismiss his appeal under the Immigration Rules.
The Entry Clearance Officer’s Approach
22. Because of the other allegations which are made in this appeal, we think it appropriate to comment on the Entry Clearance Officer’s decision as it was made by him on the evidence before him. He did not of course have the oral evidence of the sponsor, and did not know anything of the subsequent history. Nevertheless, it appears to us that he did everything that he could be expected to do in order to, if we may so express it, meet the appellant where he was.
23. It was the appellant who said that he wanted to be in the United Kingdom for two years and could give no reason for choosing that period other than because it was the period for which working holidaymakers’ visas are available. Two years is quite a long time, and it cannot be regarded as unreasonable to expect that a person who has decided to spend two years in a foreign country should have some reasonably clear idea of why the destination and the period of time have been chosen.
24. It was the appellant who said that he was a partner in his shoe shop. It is by no means unreasonable to expect a person who is leaving for two years a business in which he works and half of which he owns, to have a clear and exact knowledge of the way in which the business will work in his absence and how he will be able to return to it.
25. It was the appellant who relied wholly on employment at Kentucky Friend Chicken. In the circumstances, and bearing in mind that he was producing a letter to show that his brother was employed there, it is far from unreasonable to consider that the entirely different note purporting to offer him a job was completely unsatisfactory as supporting evidence.
26. Even without the further difficulties arising from the additional evidence before us, we consider that the Entry Clearance Officer’s decision, on the basis of the material before him, was not only entirely appropriate: it was unavoidable.
Race Discrimination: Introduction
27. The appellant also appeals on grounds of discrimination. After some initial uncertainty, Miss Muthusagaran confirmed that the allegation was of discrimination on grounds of nationality. We are content to accept that, in this jurisdiction, despite some differences in procedure, the main principles are those alluded to in Anya v University of Oxford as having been set out by Neill LJ in King v Great Britain – China Centre [1992] ICR 516:
“(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few … will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in’. (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found … . (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”
28. In the present appeal the appellant asserts both direct and indirect racial discrimination. Section 1(1) of the Race Relations Act 1976 is as follows:
“1. Racial discrimination
(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but –
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it.”
29. Section 3 of the same Act defines “racial grounds” and “racial groups” in such a way as to make it clear that those phrases include grounds and groups relating to nationality as well as race. Direct discrimination on grounds of nationality is thus encompassed within s1(1)(a), and indirect discrimination on grounds of nationality in s(1)(b). We do not need to set out subsections (1A) – (1B) of s1. They were inserted from 19 July 2003 in compliance with Council Directive 2000/43/EC. Article 3.2 of that Directive specifically excludes from its scope provisions of national law relating to the entry into or residence in a Member State of third country nationals or stateless persons. These subsections do not apply to this appeal.
30. Section 19B of the Act makes it unlawful for a public authority in carrying out any function of the authority to do any act which constitutes discrimination. The respondent to this appeal is for these purposes a public authority.
Direct Racial Discrimination
31. The appellant’s claim of direct racial discrimination is based, firstly, on the terms of the notice of refusal and, secondly, on his suggestion that the respondent applies in his post certain tests for applicants for the Working Holidaymakers Scheme that are not applied at other posts.
32. The first of those two points depends to a large extent on the reference, twice, to “India” in the notice of refusal. Miss Muthusagaran emphasised in particular the phrase “little in the way of realistic prospects for the future in India”. She submitted that it is inappropriate for the respondent to make a decision based so clearly on the nationality of the applicant. The wording used, she submitted, suggests that if the applicant had not been Indian a different decision might have resulted.
33. In our view there is nothing in this submission. The respondent properly identified the appellant’s nationality, as we have done in the first sentence of this determination. The respondent was required to consider the appellant’s application in the context in which it was made, that is to say by an Indian in India. The reference to India in the reasons for refusal adds nothing except clarity to them. It cannot properly be read as indicating any ground of discrimination.
34. As we have indicated, we think that the Entry Clearance Officer’s decision on the application, simply comparing what the appellant said with the requirements of the Rules, was inevitable. Faced with the evidence the applicant produced, any Entry Clearance Officer ought to have refused this application, whatever the nationality of the appellant. In this context the appellant cannot show that he has been the victim of racial discrimination.
35. It follows also that he cannot succeed in this appeal by demonstrating (if he were able to demonstrate) that different tests, additional to those in the Immigration Rules, are imposed at some posts overseas. The appellant’s application failed under the Immigration Rules, as it was bound to do.
Indirect Racial Discrimination
36. The claim of indirect racial discrimination is based on a certain series of statistics. These show that a proportion of applications for working holidaymakers’ visas that are successful is very substantially lower in certain posts, including New Delhi, than it is in other posts, including those in Canada and Australia. The argument, such as it is, is strengthened by comments in the report of the Independent Monitor, who observed similar disparities in the success rate of those applications with which she was concerned. Miss Muthusagaran relied on these figures as demonstrating indirect racial discrimination. She submitted that a lower success rate in New Delhi showed that the proportion of Indians who comply with the Immigration Rules was considerably smaller than the proportion of persons of other nationalities who could comply, and further submitted that there was no justification for the difference. Mr Sharland responded substantively to each of those submissions, and we shall deal with them in turn.
37. First, merely showing a statistical difference between success rates at various posts is an entirely inadequate way of demonstrating indirect racial discrimination. Without knowing whether the groups of applicants are broadly similar, it is impossible to reach judgment on the relevance of the differences in the refusal rates. One obvious possibility is that, in Australia and Canada, applicants only apply for entry clearance if they are reasonably confident that they meet the requirements of the Immigration Rules whereas, as it may be, applicants in India are more likely to apply with a mere hope that they will be successful. Another possibility is that, although clearly anybody in the world can have an intention to return to their own country at the end of a working holiday, applicants at one post do have that intention in greater numbers than at another. We do not know. Applicants for entry clearance form self-selected groups and the precise criteria for membership of the group are in general not known. What is clear is that treating various groups of applicants as identical would mean asserting a general identity between them which would be based on no evidence and wrong in principle.
38. In Jones v Chief Adjudication Officer [1990] IRLR 533 CA, Mustill LJ set out the process for determining whether indirect discrimination is established in respect of one criterion. It is apparent that when there are multiple criteria (as there are in an entry clearance application, which will not succeed unless all the requirements of the Rules are met) the process will be substantially more complex. Further, the more complex the criteria, the more detailed the demographic statistics must be before the discrimination can be established.
39. What the appellant needs to show in order to succeed in this part of his discrimination claim is that the proportion of (in this case) Indians who can comply with all the requirements of the Immigration Rules is considerably smaller than the proportion of non-Indians who can comply. All he has shown is that the proportion of Indian applicants who do comply with all the requirements of the Immigration Rules is smaller than the proportion of applicants at some other posts who do comply, the proportions in both cases being taken from groups which are not shown to be comparable. Based as it essentially is solely on those statistics, the claim is doomed to failure.
40. If the appellant had been able to show that the Immigration Rules or some part of them had a disproportionate impact on Indians, the burden of proof would have shifted to the respondent (strictly, perhaps, the Government, or the Secretary of State for the Home Department, who promotes the Rules, rather than the Entry Clearance Officer who applies them) to show that the difference is justifiable. The meaning of that word was explained by Balcombe LJ in his dissenting judgment in Hampson v DES [1989] ICR 179, at p191:
“In my judgment ‘justifiable’ requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition.”
41. Further explanation was provided by the European Court of Justice in Enderby v Frenchay Health Authority [1994] ICR 112, and by the House of Lords in Webb v EMO Air Cargo (UK) Ltd [1993] ICR 175 (where Balcombe LJ’s words were expressly approved) and Barry v Midland Bank Plc [1999] ICR 859. In the latter case Lord Nicholls, expounding Enderby, said this at p870:
“The ground relied upon as justification must be of sufficient importance for the national court to regard this as overriding the disparate effect of the difference in treatment, either in whole or in part. The more serious the disparate impact … the more cogent must be the objective justification. There seem to be no particular criteria to which the national court should have regard when assessing the weight of the justification relied on.”
42. As we have made clear above, this is not a case in which the burden of proof has passed to the respondent. If it had done, we consider that the following features of the maintenance of a working holidaymakers’ scheme would seem to be of considerable importance. The need to ensure that those participating were genuinely intending merely a holiday and intended to return home at the end of it, so that the scheme was not abused as a mode of primary immigration; the need to ensure that any work was (broadly speaking) incidental to the holiday, so that the scheme was not abused as a way into work for which a work permit should have been obtained; the need to ensure that there were adequate funds and arrangements available (whether by appropriate work or otherwise), so that the applicant’s holiday would have no foreseeable adverse impact on the UK economy by way of the benefits system or a need for repatriation. We cannot determine this issue in the abstract, but we think it highly likely that these factors would suffice to show an objective justification for the criteria in the Rules despite any disparate impact on applicants, who would, at most, be prevented from taking a particular type of holiday.
General Guidance
43. First, where direct or indirect discrimination is alleged, it may well be helpful, as well as looking at the appeal in the usual way, to try to take a view on the effect of the evidence actually available to the decision-maker at the time the decision was made. Secondly, in deciding whether an allegation of discrimination is made out, the process recommended by the Court of Appeal in King v Great Britain - China Centre should be applied, as set out in paragraph 27 above. The questionnaire process under s65 of the 1976 Act (to which the passage there omitted refers) is not applicable to appeals to this Tribunal: see s65(7)(b).
44. Thirdly, where indirect discrimination is being alleged on the basis of statistical evidence, part of the burden of proof as it rests on the appellant is to establish that the statistics produced are relevant to the claim he makes. Statistics which do not as a matter of logic show a difference in ability to comply with the Rule in question do not advance the claimant’s case.
45. Fourthly, if statistical evidence does properly demonstrate a differential impact of some condition, it is for the respondent to show an objective justification, within the meaning of the passages from Hampson v DES and Barry v Midland Bank Plc set out above. It is for the Tribunal to balance the justification advanced by the respondent against the impact on the group of whom the appellant is a member. Both sides of the balance are likely to be affected by the purpose for which the appellant sought entry.
46. Fifthly (and no less important than the preceding), although the decision-making process and analysis is the same in determining race discrimination in this Tribunal as it is for race and sex discrimination cases in employment tribunals, the background circumstances and evidence are likely to be widely different. The evidence before this Tribunal is rather unlikely to have such clear points of comparison between the treatment of different individuals as may, for example, exist where the two individuals have been employed by the same employer. This is of course not to say that a claim of indirect or direct racial discrimination cannot be made out in this Tribunal; but it is important to recognise any areas in which the evidence adduced is not strictly comparable to that which has been the subject of the observations in the authorities to which we have referred.
Conclusion
47. The appellant has failed to establish direct racial discrimination against him. He has failed to establish that the Immigration Rules on working holidaymakers constitute indirect racial discrimination against Indians in general or him in particular. He has failed to establish that, at the date of the decision against which he appeals, he met the requirements of those Rules. On all the grounds he raised his appeal is dismissed.
C M G OCKELTON
DEPUTY PRESIDENT
Date:
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Newport Date of Hearing: 31 May 2006
Date of Promulgation: 05 September 2006
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Grubb
Immigration A D Judge Baker
Between
Appellant
and
THE ENTRY CLEARANCE OFFICER, NEW DELHI
Respondent
Representation:
For the Appellant: Miss S J Muthusagaran, Turpin, Miller & Higgins Solicitors
For the Respondent: Mr A Sharland, Counsel instructed by the Treasury Solicitor
1. The Court of Appeal, House of Lords and Luxemburg authorities on race and sex discrimination in employment are to be used as a guide for the establishment of race discrimination in appeals to this Tribunal; but the questionnaire process available to employees is not applicable in the AIT, and nor is the Burden of Proof Directive. The requirement to identify a comparator (actual or hypothetical) who would be treated better than the appellant remains, however. 2. The demographic process of establishing disproportionate impact by statistics (as expounded in Jones v Chief Adjudication Officer) is an appropriate process for establishing indirect racial discrimination in the AIT; but care is necessary to ensure that the statistics are derived from comparable populations. The question is not whether different groups do comply equally with any condition but whether there is a difference between groups in whether they can comply. 3. The more complex the issue, the less likely broadly-based statistics are to be of help. Where all the requirements of a particular paragraph of HC 395 have to be satisfied, general figures relating to grants and refusals may reveal little about ability to comply with any individual condition. 4. Where statistics relate to self-selected groups (e.g. applicants for entry clearance) they are perhaps even less likely to assist. 5. Where the statistics do show a disproportionate impact on a particular racial or national group, the burden shifts to the Respondent to show that the condition in question is justifiable within the meaning of Balcombe LJ’s dicta in Hampson v DES, and Barry v Midland Bank Plc. The Tribunal must take into account the impact on the complainant (which is likely to include an assessment of the purpose for which admission or leave was sought) and the Respondent’s reasons for imposing the condition; it must strike a balance between them and give reasons for the decision it reaches.
DETERMINATION AND REASONS
1. The appellant is a citizen of India. He appeals against the decision of the respondent on 3 August 2004 refusing him entry clearance to the United Kingdom as a working holidaymaker. His grounds of appeal raise issues of race discrimination as well as issues under the Immigration Rules. For that reason arrangements were made for it to be considered by a panel of three legally qualified members so that guidance could be given on such appeals, if appropriate.
2. The appellant’s application form is undated but there is the respondent’s date stamp for 25 March 2004. It is an application for a working holidaymaker’s visa for two years. It acknowledges that the appellant had previously been refused a visa as a student, following an application on 9 July 2003. It indicates that the appellant has a brother in the United Kingdom and that the only address at which he will stay is a named address in Coventry. He gives his job as “salesman (partner) in footwear business”, which he has held since 1994. He gives his monthly income as “50%”. He says that he has a £1,000 available to him for his stay and that his parents are going to pay for the trip. He says he will take “any suitable job” in the United Kingdom and under “other information” says that “from the last 8-10 years I am doing business in footwear”.
3. The appellant was interviewed by the respondent on 3 August 2004. He confirmed that he was fit and well enough to be interviewed, not tired or confused, and that he understood the interpreter. He said all the details on his application form were correct. He said that he would stay in the United Kingdom for two years and that the reason he was going for a working holiday was because it was for two years. He gave an indication of a few sights that he would see in the United Kingdom. He said that he would work at Kentucky Fried Chicken, and produced a letter which the respondent comments was of “very poor quality”. He said that he would be able to get a job there although he had no experience and no qualification because “my brother works as supervisor”. He said that his brother was paying for the trip, and he produced evidence that his brother had funds. He was asked about his work:
“Q17: What do you do in India?
A: Salesman in a footwear shop
Q18: Income?
A: 6,000 per month
Q19: Given leave for this period? Evidence?
A: Yes, no evidence
Q20: How did you manage to gain leave from your job for two years?
A: My partner will look after my work
Q21: Why leave your studies/career at this stage for a two year break?
A: This is a working holiday scheme.”
He said that he would go back to his work when he returned to India and that he would benefit by having had experience of working in an advanced country and would use that experience. He was asked to comment on the Entry Clearance Officer’s view that he appeared to have little incentive to leave the UK after two years to return to India. His comment was “my brother has send sponsorship, so I cannot spoil his record by overstaying”.
4. The respondent refused the application. The notice of refusal is in the following terms.
“I am not satisfied, on the balance of probabilities, that your application meets the requirements of paragraph 95, and in particular:
I am not satisfied you intend to leave the UK at the end of your working holiday.
BECAUSE
I note that you have never previously taken a holiday overseas, and were unable to describe in any detail the sights you wished to see in the United Kingdom. It is only reasonable to expect you to have at least researched some aspects of the country in which you intend to spend two years.
You have been employed in India for a number of years, and I do not find it credible that at this stage of your life you should seek to go abroad on holiday for two years. Neither have you satisfied me that you will be able to resume your employment after such a protracted absence. I consider it unrealistic that you would jeopardise your career for the sake of a holiday.
You have been unable to provide a satisfactory explanation as to how the working holiday scheme would be of benefit to you, and what lasting advantages you would derive from it.
Whilst it is reasonable that a young commonwealth citizen should seek to spend two years as a working holiday maker, you need to satisfy me that you have the intention to leave the United Kingdom. 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 realistic prospects for the future in India. Against this background, you seek to spend two years on a working holiday in the United Kingdom, and your account of your circumstances in India has simply failed to satisfy me that you would leave after that period.
The evidence of your proposed employment is vague, in the circumstances, I am not satisfied that it constitutes genuine and meaningful employment.
I therefore refuse your application.”
5. The grounds of appeal to an Adjudicator simply assert that “the appellant intends to leave the UK at the end of the working holiday”. He has been permitted to vary them in the terms of paragraph 8 of the skeleton argument now produced on his behalf:
“(a) that the decision is not in accordance with Immigration Rules
(b) that the decision is otherwise not in accordance with the law
(c) that the decision is unlawful by virtue of Section 19B of the Race Relations Act of 1976 (c.74) (discrimination by public authorities).”
6. We heard oral evidence from the sponsor. He began by confirming as true the contents of his witness statement made on 2 February 2006, which we will need to summarise. In it he says that he works full-time at Kentucky Fried Chicken in Coventry. When the appellant was applying for a visa, he spoke to the manager, who wrote a letter confirming an offer of employment at Kentucky Fried Chicken in Oxford. Since the application, the sponsor had moved permanently to Coventry as his wife and children had now joined him in the United Kingdom, so the job offer in Oxford would no longer be valid.
7. On the appellant’s employment history, the sponsor comments that the appellant left school when he was quite young and has had a number of jobs since. He is a hard worker and would not find it difficult to find work when he needed it. He is described by the sponsor as speaking “good English”. At the time of making the statement, the appellant is said to have been working in a photography shop belonging to another brother of the appellant and the sponsor; before that he had been working in a shoe shop for about ten years until the shop closed down. When he returns to India after his working holiday he plans to open a shoe shop; he is also proposing to get married then.
8. The sponsor asserts that the appellant has no intention of overstaying any visa, and points out that in 2001 and 2005 the sponsor’s parents (who are, of course, also the appellant’s parents) visited the sponsor for two months and returned within the currency of their visas. The sponsor acknowledges that the appellant has made an application to enter the United Kingdom as a student. The sponsor says that the appellant did not know that he had a right of appeal against the refusal; then he decided that he did not want to undertake any more studies.
9. So far as finances are concerned, the sponsor says that his parents “have also always agreed to assist my brother financially if needed”, but that he, the sponsor, intends to support the appellant while he is in the United Kingdom. He has over £6,000 standing to his name in two bank accounts. He has adequate accommodation for the appellant in his home. Although the appellant has not arranged a list of sights to see, both he and the sponsor have some plans. As the sponsor says, “this is only a short trip to experience life in another country, spend time with me and work for a while”.
10. In his oral evidence the sponsor confirmed that he was able to pay for the appellant’s trip, but his parents had also given the appellant £1,000 “expenses”. When asked how he would ensure that the appellant returned to India at the end of a working holiday, the sponsor said that he would not support him any more after his visa expired. In cross-examination, Mr Sharland pointed out that when the appellant was interviewed he said that the trip was going to be funded by the sponsor, not by his parents: the sponsor said that it was right to say that he was going to pay for the appellant’s trip and his expenses here, apart from £1,000 pocket money from his parents.
11. We asked the sponsor a number of questions about his employment and the accommodation, arising from the documents that had been produced. The sponsor confirmed that his present work was at Kentucky Fried Chicken; he was unable to give us the address where he worked or the name of the company or the name of his manager. He did show us some payslips. He said that his work was in the kitchen at Kentucky Fried Chicken; he had moved to Coventry in December 2005 and was now being paid only just over half of what he was being paid in Oxford. He said “yes. I have applied for another job.” (His present income appears to be about £130 per week).
12. The house mentioned in the appellant’s application as the place where he would stay for the two years of his working holiday was, the sponsor told us, bought in 2003. He did not go and live in it. He rented it out to some people whose name he gave us. They paid him rent of about £350 per week. He did not move into the house until his wife and child joined him in 2005. He confirmed that since he has owned the house he has used his ownership of it to support two applications for entry clearance. Some of the relevant papers are amongst the documents supporting this appeal. There is a declaration signed by the sponsor and dated 18 March 2004 containing at paragraph 6, the following:
“I own [the house in question] aforesaid three-bedroom property. There is ample accommodation there to accommodate my brother [the appellant].”
The documents relating to the ownership of the property were produced to support the sponsor’s application for entry clearance for his wife and son. There is a letter dated 4 November 2003, signed by Nisar Khan, a partner in a firm of solicitors called The Law Partnership in Coventry. The second paragraph of the letter reads:
“I confirm that the property was purchased by [the sponsor] on 15 August 2003 and that he was granted the right of occupation as owner on that date.”
13. The other partner in the same firm of solicitors, Abdul Salam Khan, signed a statement dated 19 November 2003 specifically prepared, following a personal visit to the property. After setting out that the sponsor owns the property and describing it, the statement continues as follows:
“The property is currently occupied by [the sponsor] … I am satisfied that the addition of one more female adult would not render the property overcrowded within the meaning of part X of the Housing Act.”
14. From the sponsor’s evidence before us it became clear, and he accepted, that he had not been living in the property in question when the letter or either of the statements was prepared. The property had been occupied by his tenants as their home. We suggested that it followed that on the dates those letters were prepared and on the dates of any decisions in applications supported by them, the property was not actually available for the accommodation of any applicant as those documents suggest and state. The sponsor’s response was that his tenants had vacated the property when he had asked them to, as they said they would.
15. There was no other oral evidence. We do not need to summarise any of the other documentary evidence relating to the appellant’s application itself. The allegations of racial discrimination were supported by documents including a Home Office consultation document on the Working Holidaymakers Scheme apparently dating from 2002, statistics for working holidaymakers from 2002 to 2005, further similar statistics contained in a ministerial written answer on 12 September 2005, and the report of the independent monitor appointed under the Immigration and Asylum Act 1999 to monitor refusals of entry clearance where there is no right of appeal. In her submissions Miss Muthusagaran referred to Anya v University of Oxford [2001] EWCA Civ 405 and CS [2006] UKAIT 00004. Anya is a case relating to racial discrimination in employment. The authorities on that issue and on those relating to sex discrimination have relevance to this appeal, as the legislation is in similar terms.
The Appeal under the Immigration Rules
16. We will look first at the appeal on the grounds that the decision was not in accordance with the Immigration Rules. The question we have to decide is whether, on the material now available to us, we are satisfied that the appellant should have been granted, rather than refused, the visa he sought. The burden of proof is on him; the standard is the balance of probabilities. We are concerned with the position as it was at the date of the decision, but in making our decision we take in to account all the evidence relevant to the position on that date, even if the evidence itself postdates the decision.
17. There is a multitude of problems in the evidence said to support this appeal. It is right to say, as has been said on behalf of the appellant, that an applicant for a working holidaymaker’s visa does not have to have firm plans for how he will spend his time for the whole of his trip; is allowed to fund the trip in a variety of different ways; and does not have to show that the trip would be of any particular benefit to him. But one of the requirements of the Rules is that he intends to leave the United Kingdom at the end of his working holiday. Nobody pretends that it is easy to assess whether that requirement has been met. It has to be assessed by looking at all the evidence. The principal primary evidence is likely to be the appellant’s own assertion that he will leave. A decision-maker, whether the Entry Clearance Officer or the Tribunal, therefore needs to assess whether the appellant’s statements are sufficiently worthy of credit for this particular assertion to be persuasive.
18. In the present case we see, firstly, that the appellant stated quite clearly in his application form that his parents would pay for his trip, but in his interview that his brother would pay. He said that he would work at Kentucky Fried Chicken, because his brother was a supervisor there, but that alleged job offer has never been substantiated and in our view the Entry Clearance Officer was right to make the point that it was “of very poor quality”: in particular it bears no resemblance to the letter from the same employer confirming the sponsor’s employment. The appellant gave his own occupation as that of a partner in a shoe shop but neither then or subsequently has he provided any explanation of how the business was to continue for two years with one of its partners absent in England. The appellant said that he would be in the UK for two years, giving as his reason only that that was the period for which working holidaymaker visas were available, but his sponsor thought that his visit would be a short one. The appellant responded to one of the questions at his interview on the basis that he did not speak English: the sponsor described the appellant as speaking good English.
19. Further, as appeared for the first time in the oral evidence before us, the written evidence as to accommodation was at the date of the decision entirely unreliable. We appreciate that the sponsor owned the house and that he intended to recover possession of it when his wife came to the United Kingdom, but the position was that he had let it to tenants who occupied it as their home and he was by no means assured of being able to recover possession of it at any particular time that he chose. In particular, the position at the date of the decision was that the sponsor was still working in Oxford and, as we understand the matter, he had no intention of working in Oxford and living in this house in Coventry. The house was to accommodate him and his family when they came: at that time he ceased working in Oxford. Thus, as it now appears, the evidence as to accommodation was simply inconsistent with the evidence as to employment either of the sponsor or of the appellant. The sponsor’s employment is itself of some importance in this case, because of the claim made by both the appellant and the sponsor that the expenses of the trip would be paid by the sponsor. At the date of the decision the sponsor had an income of some £250 per week and we accept that that would have been sufficient. But the position is also that the application was on the basis that accommodation would be in Coventry and the evidence before us shows that the accommodation in Coventry only became available when the sponsor moved there and occupied his house there, at which point also he took a pay cut of nearly 50% and had the responsibility of supporting his family in this country.
20. The position is that, looking at the evidence as a whole as we do, we are entirely satisfied that neither the appellant nor the sponsor has been entirely frank in their approach to this application and appeal. It is for the appellant to establish that he intended to leave the United Kingdom at the conclusion of his visit and, in the circumstances, we see no reason to believe his word.
21. We therefore conclude that the appellant has not discharged the burden of proof and will dismiss his appeal under the Immigration Rules.
The Entry Clearance Officer’s Approach
22. Because of the other allegations which are made in this appeal, we think it appropriate to comment on the Entry Clearance Officer’s decision as it was made by him on the evidence before him. He did not of course have the oral evidence of the sponsor, and did not know anything of the subsequent history. Nevertheless, it appears to us that he did everything that he could be expected to do in order to, if we may so express it, meet the appellant where he was.
23. It was the appellant who said that he wanted to be in the United Kingdom for two years and could give no reason for choosing that period other than because it was the period for which working holidaymakers’ visas are available. Two years is quite a long time, and it cannot be regarded as unreasonable to expect that a person who has decided to spend two years in a foreign country should have some reasonably clear idea of why the destination and the period of time have been chosen.
24. It was the appellant who said that he was a partner in his shoe shop. It is by no means unreasonable to expect a person who is leaving for two years a business in which he works and half of which he owns, to have a clear and exact knowledge of the way in which the business will work in his absence and how he will be able to return to it.
25. It was the appellant who relied wholly on employment at Kentucky Friend Chicken. In the circumstances, and bearing in mind that he was producing a letter to show that his brother was employed there, it is far from unreasonable to consider that the entirely different note purporting to offer him a job was completely unsatisfactory as supporting evidence.
26. Even without the further difficulties arising from the additional evidence before us, we consider that the Entry Clearance Officer’s decision, on the basis of the material before him, was not only entirely appropriate: it was unavoidable.
Race Discrimination: Introduction
27. The appellant also appeals on grounds of discrimination. After some initial uncertainty, Miss Muthusagaran confirmed that the allegation was of discrimination on grounds of nationality. We are content to accept that, in this jurisdiction, despite some differences in procedure, the main principles are those alluded to in Anya v University of Oxford as having been set out by Neill LJ in King v Great Britain – China Centre [1992] ICR 516:
“(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few … will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in’. (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found … . (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”
28. In the present appeal the appellant asserts both direct and indirect racial discrimination. Section 1(1) of the Race Relations Act 1976 is as follows:
“1. Racial discrimination
(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but –
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it.”
29. Section 3 of the same Act defines “racial grounds” and “racial groups” in such a way as to make it clear that those phrases include grounds and groups relating to nationality as well as race. Direct discrimination on grounds of nationality is thus encompassed within s1(1)(a), and indirect discrimination on grounds of nationality in s(1)(b). We do not need to set out subsections (1A) – (1B) of s1. They were inserted from 19 July 2003 in compliance with Council Directive 2000/43/EC. Article 3.2 of that Directive specifically excludes from its scope provisions of national law relating to the entry into or residence in a Member State of third country nationals or stateless persons. These subsections do not apply to this appeal.
30. Section 19B of the Act makes it unlawful for a public authority in carrying out any function of the authority to do any act which constitutes discrimination. The respondent to this appeal is for these purposes a public authority.
Direct Racial Discrimination
31. The appellant’s claim of direct racial discrimination is based, firstly, on the terms of the notice of refusal and, secondly, on his suggestion that the respondent applies in his post certain tests for applicants for the Working Holidaymakers Scheme that are not applied at other posts.
32. The first of those two points depends to a large extent on the reference, twice, to “India” in the notice of refusal. Miss Muthusagaran emphasised in particular the phrase “little in the way of realistic prospects for the future in India”. She submitted that it is inappropriate for the respondent to make a decision based so clearly on the nationality of the applicant. The wording used, she submitted, suggests that if the applicant had not been Indian a different decision might have resulted.
33. In our view there is nothing in this submission. The respondent properly identified the appellant’s nationality, as we have done in the first sentence of this determination. The respondent was required to consider the appellant’s application in the context in which it was made, that is to say by an Indian in India. The reference to India in the reasons for refusal adds nothing except clarity to them. It cannot properly be read as indicating any ground of discrimination.
34. As we have indicated, we think that the Entry Clearance Officer’s decision on the application, simply comparing what the appellant said with the requirements of the Rules, was inevitable. Faced with the evidence the applicant produced, any Entry Clearance Officer ought to have refused this application, whatever the nationality of the appellant. In this context the appellant cannot show that he has been the victim of racial discrimination.
35. It follows also that he cannot succeed in this appeal by demonstrating (if he were able to demonstrate) that different tests, additional to those in the Immigration Rules, are imposed at some posts overseas. The appellant’s application failed under the Immigration Rules, as it was bound to do.
Indirect Racial Discrimination
36. The claim of indirect racial discrimination is based on a certain series of statistics. These show that a proportion of applications for working holidaymakers’ visas that are successful is very substantially lower in certain posts, including New Delhi, than it is in other posts, including those in Canada and Australia. The argument, such as it is, is strengthened by comments in the report of the Independent Monitor, who observed similar disparities in the success rate of those applications with which she was concerned. Miss Muthusagaran relied on these figures as demonstrating indirect racial discrimination. She submitted that a lower success rate in New Delhi showed that the proportion of Indians who comply with the Immigration Rules was considerably smaller than the proportion of persons of other nationalities who could comply, and further submitted that there was no justification for the difference. Mr Sharland responded substantively to each of those submissions, and we shall deal with them in turn.
37. First, merely showing a statistical difference between success rates at various posts is an entirely inadequate way of demonstrating indirect racial discrimination. Without knowing whether the groups of applicants are broadly similar, it is impossible to reach judgment on the relevance of the differences in the refusal rates. One obvious possibility is that, in Australia and Canada, applicants only apply for entry clearance if they are reasonably confident that they meet the requirements of the Immigration Rules whereas, as it may be, applicants in India are more likely to apply with a mere hope that they will be successful. Another possibility is that, although clearly anybody in the world can have an intention to return to their own country at the end of a working holiday, applicants at one post do have that intention in greater numbers than at another. We do not know. Applicants for entry clearance form self-selected groups and the precise criteria for membership of the group are in general not known. What is clear is that treating various groups of applicants as identical would mean asserting a general identity between them which would be based on no evidence and wrong in principle.
38. In Jones v Chief Adjudication Officer [1990] IRLR 533 CA, Mustill LJ set out the process for determining whether indirect discrimination is established in respect of one criterion. It is apparent that when there are multiple criteria (as there are in an entry clearance application, which will not succeed unless all the requirements of the Rules are met) the process will be substantially more complex. Further, the more complex the criteria, the more detailed the demographic statistics must be before the discrimination can be established.
39. What the appellant needs to show in order to succeed in this part of his discrimination claim is that the proportion of (in this case) Indians who can comply with all the requirements of the Immigration Rules is considerably smaller than the proportion of non-Indians who can comply. All he has shown is that the proportion of Indian applicants who do comply with all the requirements of the Immigration Rules is smaller than the proportion of applicants at some other posts who do comply, the proportions in both cases being taken from groups which are not shown to be comparable. Based as it essentially is solely on those statistics, the claim is doomed to failure.
40. If the appellant had been able to show that the Immigration Rules or some part of them had a disproportionate impact on Indians, the burden of proof would have shifted to the respondent (strictly, perhaps, the Government, or the Secretary of State for the Home Department, who promotes the Rules, rather than the Entry Clearance Officer who applies them) to show that the difference is justifiable. The meaning of that word was explained by Balcombe LJ in his dissenting judgment in Hampson v DES [1989] ICR 179, at p191:
“In my judgment ‘justifiable’ requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition.”
41. Further explanation was provided by the European Court of Justice in Enderby v Frenchay Health Authority [1994] ICR 112, and by the House of Lords in Webb v EMO Air Cargo (UK) Ltd [1993] ICR 175 (where Balcombe LJ’s words were expressly approved) and Barry v Midland Bank Plc [1999] ICR 859. In the latter case Lord Nicholls, expounding Enderby, said this at p870:
“The ground relied upon as justification must be of sufficient importance for the national court to regard this as overriding the disparate effect of the difference in treatment, either in whole or in part. The more serious the disparate impact … the more cogent must be the objective justification. There seem to be no particular criteria to which the national court should have regard when assessing the weight of the justification relied on.”
42. As we have made clear above, this is not a case in which the burden of proof has passed to the respondent. If it had done, we consider that the following features of the maintenance of a working holidaymakers’ scheme would seem to be of considerable importance. The need to ensure that those participating were genuinely intending merely a holiday and intended to return home at the end of it, so that the scheme was not abused as a mode of primary immigration; the need to ensure that any work was (broadly speaking) incidental to the holiday, so that the scheme was not abused as a way into work for which a work permit should have been obtained; the need to ensure that there were adequate funds and arrangements available (whether by appropriate work or otherwise), so that the applicant’s holiday would have no foreseeable adverse impact on the UK economy by way of the benefits system or a need for repatriation. We cannot determine this issue in the abstract, but we think it highly likely that these factors would suffice to show an objective justification for the criteria in the Rules despite any disparate impact on applicants, who would, at most, be prevented from taking a particular type of holiday.
General Guidance
43. First, where direct or indirect discrimination is alleged, it may well be helpful, as well as looking at the appeal in the usual way, to try to take a view on the effect of the evidence actually available to the decision-maker at the time the decision was made. Secondly, in deciding whether an allegation of discrimination is made out, the process recommended by the Court of Appeal in King v Great Britain - China Centre should be applied, as set out in paragraph 27 above. The questionnaire process under s65 of the 1976 Act (to which the passage there omitted refers) is not applicable to appeals to this Tribunal: see s65(7)(b).
44. Thirdly, where indirect discrimination is being alleged on the basis of statistical evidence, part of the burden of proof as it rests on the appellant is to establish that the statistics produced are relevant to the claim he makes. Statistics which do not as a matter of logic show a difference in ability to comply with the Rule in question do not advance the claimant’s case.
45. Fourthly, if statistical evidence does properly demonstrate a differential impact of some condition, it is for the respondent to show an objective justification, within the meaning of the passages from Hampson v DES and Barry v Midland Bank Plc set out above. It is for the Tribunal to balance the justification advanced by the respondent against the impact on the group of whom the appellant is a member. Both sides of the balance are likely to be affected by the purpose for which the appellant sought entry.
46. Fifthly (and no less important than the preceding), although the decision-making process and analysis is the same in determining race discrimination in this Tribunal as it is for race and sex discrimination cases in employment tribunals, the background circumstances and evidence are likely to be widely different. The evidence before this Tribunal is rather unlikely to have such clear points of comparison between the treatment of different individuals as may, for example, exist where the two individuals have been employed by the same employer. This is of course not to say that a claim of indirect or direct racial discrimination cannot be made out in this Tribunal; but it is important to recognise any areas in which the evidence adduced is not strictly comparable to that which has been the subject of the observations in the authorities to which we have referred.
Conclusion
47. The appellant has failed to establish direct racial discrimination against him. He has failed to establish that the Immigration Rules on working holidaymakers constitute indirect racial discrimination against Indians in general or him in particular. He has failed to establish that, at the date of the decision against which he appeals, he met the requirements of those Rules. On all the grounds he raised his appeal is dismissed.
C M G OCKELTON
DEPUTY PRESIDENT
Date: