Tribunal decisions

The decision

Asylum and Immigration Tribunal

NG (“on a regular basis” para 159A(ii)) Bulgaria [2006] UKAIT 00020

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 1 February 2006
On 28 February 2006
Prepared on 2 February 2006

Before

Mr H J E Latter (Senior Immigration Judge)
Mr L V Waumsley (Senior Immigration Judge)

Between

Appellant

and

ENTRY CLEARANCE OFFICER - SOFIA

Respondent

Representation:

For the Appellant: Mr N Stanage of counsel, instructed by Harrison Bundy & Co, solicitors
For the Respondent: Mrs R Petterson, Home Office Presenting Officer

The purpose of the reference to “on a regular basis” in paragraph 159A(ii) is to ensure that there is a genuine connection between the household in which the relevant applicant is employed as a domestic worker and his employer. That requirement would scarcely be served if it were sufficient for the employer to use that household only on an infrequent basis.

DETERMINATION AND REASONS

1. The appellant, a citizen of Bulgaria, has appealed with permission against the determination of a Designated Immigration Judge (Mr P J Wynne), sitting in Bradford, in which he dismissed her appeal on immigration grounds only against the respondent’s decision to refuse her application for entry clearance to come to the United Kingdom as a domestic worker in a private household.

Background

2. On 19 April 2005, the appellant applied to the respondent for entry clearance to come to the United Kingdom as a domestic worker for a period of one year in order to undertake employment with her existing employers, Dr and Mrs Cookson, as a nanny for their two young children. Her application fell to be considered under the terms of paragraph 159A of the Statement of Changes in Immigration Rules (HC 395) as amended which 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 intends to travel to the United Kingdom in the company of his employer, his employer’s spouse 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 respondent’s decision in response to the appellant’s application was made on same date. He concluded that the appellant had not satisfied the requirements for entry clearance in the capacity sought by her, and refused her application accordingly. The grounds on which he did so are set out in his notice of refusal in the following terms:

“You have applied for entry clearance to the United Kingdom as a domestic worker.
BUT:
I am not satisfied, on the balance of probabilities, that you meet the requirements of Paragraph 159A (Immigration Rules 18/9/2002), in particular:
You have been employed as a domestic worker for one year or more immediately prior to application for entry clearance under the same roof as (employer [sic] 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 (159A (ii));
You intend to work full-time as a domestic worker under the same roof as your 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 (159A (iv));
You do not intend to take employment except within the terms of this paragraph (159A (v));
Because:
Mr and Mrs Cookson have not employed you in accordance with the above requirements.
You said you live separately in your own house with your husband and daughter.
You have worked for Mrs Cookson’s parents and not for Mr and Mrs Cookson.
You said you were made redundant from your previous employment and that you are now retired.

I therefore refuse your application.”

4. The appellant exercised her right to appeal to an Immigration Judge under section 82(1) of the Nationality, Immigration and Asylum Act 2002. This is the appeal which came before Mr P J Wynne on 29 September 2005. As will be seen from the extract from the notice of refusal set out above, the respondent refused the appellant’s application for three reasons, namely that he was not satisfied that she had been employed for a period of one year or more in a household complying with the requirements of paragraph 159A(ii), he was not satisfied that she intended to work full-time as a domestic worker in a household complying with the requirements of paragraph 159A(iv), and finally he was not satisfied that she intended to take employment except within the terms of paragraph 159A. However, at the hearing before the Designated Immigration Judge, the respondent’s representative confirmed that he was no longer relying on the third of those reasons. This was recorded by the Designated Immigration Judge at paragraph 20 of his determination. He then proceeded to consider the other two grounds on which the application had been refused.

5. Oral evidence was given before the Immigration Judge by both Dr and Mrs Cookson. The Designated Immigration Judge accepted their evidence in its entirety. Nevertheless, he concluded at paragraphs 44 and 45 of his determination that the appellant had not been employed as a domestic worker for a period of one year or more immediately prior to the date of her application under the same roof as her employers or in a household that they used for themselves on a regular basis and where there was evidence that there was a connection between her and her employers. He also concluded at paragraph 47 of his determination that he was not satisfied that the appellant intended to work “full-time” as a domestic worker in a household complying with the requirements of paragraph 159A(iv). He therefore found against the appellant on both those points, and dismissed her appeal accordingly.

6. The appellant then applied for, and was granted, an order for reconsideration by this Tribunal. The grounds contained in her application for review raise four separate issues which may be summarised as follows:

(1) The Designated Immigration Judge’s conclusions at paragraphs 44 and 45 of his determination are contradictory;
(2) He failed to take proper account of the respondent’s published Immigration Directorate Instructions;
(3) The “scenario that the IJ [Immigration Judge] contends would not be the will of parliament [sic] is one which is misplaced given the caveat contained within the rules”;
(4) He acted in a manner which was procedurally unfair in concluding that he appellant had not had the requisite intention to work full-time as a domestic worker when that was not an issue which had been raised by the respondent when refusing her application, or during the course of the hearing before him.

We will therefore consider each of those grounds in turn.

Ground 1

7. The first ground raised by the appellant is that the Designated Immigration Judge has made contradictory findings at paragraphs 44 and 45 of his determination. It is averred in her grounds that at paragraph 44 he made a finding to the effect that she had been employed as a domestic worker for a period of one year or more immediately prior to the date of her application “in a household that her employer used for himself on a regular basis”. However, at paragraph 45, he had arrived at the opposite conclusion. It was therefore unclear what finding he had actually intended to make on the point.

8. With respect to the appellant’s counsel (not Mr Stanage) who drafted the grounds of appeal on her behalf, this ground is misconceived. A careful reading of both paragraphs 44 and 45 of the determination discloses that there is in fact no contradiction between the findings made by the Designated Immigration Judge.

9. The assertion made on the appellant’s behalf arises out of the final sentence of paragraph 44 in which the Designated Immigration Judge stated:

“I am satisfied on the latter part of the sub-paragraph because there is evidence that there is a connection between Richard [i.e. Dr Cookson] and Maria [i.e. Mrs Cookson] and the appellant during the one year prior to the entry clearance application, by virtue of the telephone records within Mr Mikejevic’s [appellant’s counsel’s] bundle as well as the trips/visits paid by Richard and Maria to Bulgaria during that period.”

However, it is clear from that sentence read in context that the Designated Immigration Judge was referring to the requirement contained in paragraph 159A(ii) that in the case of an entry clearance application where the applicant has not been employed for the preceding year under the same roof as her employer (it is common ground between the parties that that did not apply in the appellant’s case), but has been employed instead in a household that the employer uses for himself on a regular basis, there must be evidence of a connection between employer and employee. The Designated Immigration Judge concluded on the evidence before him that the requisite connection had been demonstrated in the appellant’s case. He was not making a finding that the appellant had been employed “in a household that her employer used for himself on a regular basis”. The appellant’s counsel who settled the grounds on her behalf has misread the sentence in question. There is no contradiction of the kind contended for in this ground.

10. At this point, it is appropriate to deal with the main argument advanced on the appellant’s behalf during oral submissions by her counsel who appeared before us, namely that the Designated Immigration Judge had erred in concluding on the evidence before him that the household in which the appellant had been employed for the year preceding her entry clearance application, namely the home of Mrs Cookson’s parents, did not constitute a “household that the employer used for himself on a regular basis”. In this regard, we heard submissions from both representatives as to the meaning of the expression “on a regular basis”. Mr Stanage argued that “regular” in this context did not connote frequent, and that the visits paid by Dr and Mrs Cookson during the relevant period to the home of Mrs Cookson’s parents, where their young son Harry was being looked after, partly by his grandparents and partly by the appellant, could properly be regarded as use of that home by Dr and Mrs Cookson “on a regular basis”.

11. Mrs Petterson, who appeared before us on behalf of the respondent, argued that there was no perversity or irrationality on the part of the Designated Immigration Judge in concluding, as he had done, that the visits paid by Dr and Mrs Cookson during the period of one year immediately prior to the appellant’s application were so infrequent and short as not to constitute use “on a regular basis”. In this regard, it is important to bear in mind that reconsideration lies on a point of law only. It would therefore only be if we were to conclude that the Designated Immigration Judge had made a material error of law in arriving at his decision that we would be entitled to interfere with it and to substitute our own decision.

12. The term “regular” which appears in paragraph 159A(ii) is not defined in the Immigration Rules. It does not appear in the interpretation section at paragraph 6 of the Rules. It is therefore to be interpreted in accordance with its ordinary dictionary meaning, giving the Immigration Rules a purposive interpretation, rather than seeking to interpret them with the strictness that might apply if they were statutory provisions. In this regard, we have given consideration to the definition of the word “regular” which appears in the current edition of the New Shorter Oxford English Dictionary. The dictionary definition sets out a range of different meanings, but for present purposes the only meanings which are arguably relevant are those which appear in paragraphs 3 and 4 of the definition respectively. At paragraph 3, the following definition appears:

“Recurring or repeated at fixed intervals, recurring at short uniform intervals. Habitually or customarily used, received or observed; habitual, constant”.

At paragraph 4, “regular” is defined as meaning:

“Observing fixed times for or never failing in the performance of certain actions or duties.”

13. Stated shortly, Mr Stanage’s submission was that for the purposes of paragraph 159A(ii), use of a household “on a regular basis” did not require that such use should be frequent. He did not offer any suggestion as to what else the expression might be intended to mean in this particular context. Mrs Petterson, on the other hand, adopted the opposite submission, namely that in this context, “regular” implied frequent or habitual.

14. We have little (if any) hesitation in preferring the latter submission. In some contexts, an event may properly be described as happening “regularly”, even though it happens infrequently. To adopt the example which was raised during the course of argument before us, Halley’s Comet comes close to the Earth once in every 76 years. The reappearance of the Comet is an event which can be predicted with a high degree of accuracy many decades, indeed centuries, in advance. To that extent, the appearance of the Comet may fairly be described as one which takes place “on a regular basis”.

15. However, that is plainly not the meaning that the expression “on a regular basis” is intended to bear in the context of paragraph 159A(ii). On the contrary, it is clearly intended to bear the alternative meaning contained in paragraph 4 of the dictionary definition set out above, namely “habitually or customarily used”. That was the view adopted by the Designated Immigration Judge, albeit not in precisely those terms. It is a view which in our opinion he was right to adopt. The purpose of the reference to “on a regular basis” in paragraph 159A(ii) is to ensure that there is a genuine connection between the household in which the relevant applicant is employed as a domestic worker and his employer. That requirement would scarcely be served if it were sufficient for the employer to use that household only on an infrequent basis. By way of example, it might be argued that attendance at the household on but a single occasion each year on 25 January to celebrate Burns Night could properly be described as “regular” attendance, but only in the sense of being attendance which recurred at a fixed interval, and clearly not in the sense of being attendance for habitual or customary use. In the context of paragraph 159A(ii), it is plainly the latter sense in which the term is being used.

16. That was the conclusion reached by the Immigration Judge. It is a conclusion which was properly open to him. There was no arguable error of law on his part in interpreting the expression “on a regular basis” in that way. In light of the evidence before him as to the short length of time which Dr and Mrs Cookson had spent at the grandparents’ house during the relevant period of one year as recorded by him at paragraphs 34(m) and (o) of his determination, it was manifestly open to him to conclude that neither Dr nor Mrs Cookson had “used” the relevant household “on a regular basis” during that year.

17. That conclusion is in itself sufficient to dispose of this reconsideration. Nevertheless, for the sake of completeness, we shall now deal with the other grounds raised on the appellant’s behalf.

Ground 2

18. The second ground argued on the appellant’s behalf was that the Designated Immigration Judge had failed to take proper account of the respondent’s own Immigration Directorate Instructions at Chapter 5, Section 12, dealing with the issue of domestic workers in private households. In particular, it was argued that he had failed to take proper account of paragraphs 2.2 and 2.3 of those Instructions.

19. The appellant’s grounds as drafted by her counsel assert at the end of paragraph 7 that those two paragraphs “make it clear that the purpose of the Rule is to ensure the authenticity of the employer/employee relationship“. With respect to the counsel concerned, we fail to see the relevance of that assertion in light of the fact that the Designated Immigration Judge accepted the evidence advanced on the appellant’s behalf that her employers were Dr and Mrs Cookson, not Mrs Cookson’s parents, as contended for by the respondent. In light of the fact that the Designated Immigration Judge found in favour of the appellant on that issue, the relevance of ground 2 to the reconsideration before us is an elusive one, to put it at its lowest.

Ground 3

20. Ground 3 as set out in the appellant’s grounds is relatively short. Despite that, we are bound to say that it is difficult to ascertain what it is intending to mean. The ground in question reads as follows:

“It is asserted that the IJ‘s role was to determine whether the claimant complied with the Rules, there is no ambiguity within the rules and the SSHD has issued guidance via which his officer should interpret the rules. In any event the scenario that the IJ envisages does not arise by virtue of the use of the words “uses for himself on a regular basis”. It is therefore clear that the scenario that the IJ contends would not be the will of Parliament is one which is misplaced given the caveat contained within the rules.”

21. So far as we can discern the point which that ground is intended to raise, it appears to be a reference to the first three sentences of paragraph 45 of the Designated Immigration Judge’s determination in which he stated:

“However, I have come to the conclusion that Richard and Maria’s visits in themselves do not constitute using for themselves on a regular basis the household in which the Appellant was employed in the year immediately preceding the entry clearance application. I say that because had Parliament intended this to be the consequence, I believe that the sub-paragraph would spell out that any employer visiting the household in which the Appellant was employed during that one year period would suffice for the purpose of the Rule. The wording of the Rule patently does not mention that situation at all.”

22. The point which the Designated Immigration Judge was making in that passage is an entirely valid one, namely that if Parliament had intended that a single visit, however short, to the household in question during the year immediately preceding the entry clearance application would suffice, then Parliament would have said so. He concluded that Parliament intended that more than a fleeting or isolated visit was required.

23. He was clearly right to do so. What Parliament required was either that the employment should have taken place “under the same roof as his employer” (a requirement which the appellant was unable to satisfy), or that it should have taken place in a “household that the employer uses for himself on a regular basis”. The Designated Immigration Judge concluded that use “on a regular basis” required more than the occasional and relatively brief visits made by Dr and Mrs Cookson to the grandparents’ home during the material period. He was right to do so. This ground discloses no arguable error of law on his part.

Ground 4

24. The allegation raised in ground 4 is one of procedural unfairness on the part of the Designated Immigration Judge in that he erred in dismissing the appellant’s appeal for a reason which had not been raised by the respondent when refusing the appellant’s application, and which had not been raised during the course of the hearing before him. If that allegation were made out, it would certainly disclose an error of law on the Designated Immigration Judge’s part. Whilst it is properly open to an Immigration Judge to raise a fresh issue which appears to him to be a potentially material one, even if it has not been raised by the parties themselves, it is obviously necessary in those circumstances that the party affected by the new issue raised should not be taken by surprise, and should, if necessary, be granted an adjournment to enable him to respond to a point which he could not reasonably have been expected to anticipate and prepare for.

25. However, that is not the position here. On the contrary, the complaint raised in ground 4 is that it was procedurally unfair for the Designated Immigration Judge to conclude, as he did at paragraph 47 of his determination, that the employment which it was proposed that the appellant should undertake for Dr and Mrs Cookson following her arrival in the United Kingdom would not be on a “full-time” basis because it was the intention that she should only work for four hours a day on five days a week. With respect to the counsel who drafted the appellant’s grounds, this is not a new issue which the Designated Immigration Judge raised himself.

26. On the contrary, it is an issue which was raised in terms by the respondent in his notice of refusal. It appears in his notice of refusal as set out above in the following terms:

“I am not satisfied, on the balance of probabilities, that you meet the requirements of paragraph 159A (Immigration Rules 18/9/2002), in particular: ……

You intend to work full-time as a domestic worker under the same roof as 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 (159A(iv)).” (emphasis added)

27. The assertion in ground 4 that the Designated Immigration Judge raised this issue himself, and did not give the appellant a fair opportunity to respond to it is wholly without foundation. It was an issue which had been raised expressly by the respondent in his notice of refusal. It was not one which had been withdrawn subsequently by him. Accordingly, the appellant was fairly on notice that it was one on which the respondent was still relying. It was therefore for her to meet that objection as best she could. There was no arguable procedural unfairness on the part of the Designated Immigration Judge in concluding that she had not done so. This ground is without merit.

28. For the above reasons, we have found against the appellant in relation to all the grounds which were advanced on her behalf before us. It therefore inevitably follows that there is no possible basis for interfering with the Designated Immigration Judge’s conclusion. On the contrary, it is clear from his determination read as a whole that he gave painstakingly careful consideration to the evidence, both oral and documentary, which was before him. Having done so, he made clear findings of fact on the material issues.

29. Although he found both Dr and Mrs Cookson to be wholly credible witnesses, he nevertheless concluded that the appellant had failed to satisfy the requirements of either paragraph 159A(ii) or (iv) of the Immigration Rules. It was on the basis of that conclusion that he dismissed her appeal.

30. This experienced Designated Immigration Judge has given proper, intelligible and adequate reasons for arriving at his findings and conclusions. They are findings and conclusions which were properly open to him on the evidence. The appellant has failed to show any arguable error of law on the part of the Designated Immigration Judge. There is therefore no basis for doing otherwise than upholding his decision.

Decision

31. The original Tribunal did not make a material error of law, and the original determination of the appeal shall stand.

Signed Date

L V Waumsley
Senior Immigration Judge