Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA253022014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 June 2016
On 10 June 2016

Before

THE HONOURABLE LORD TURNBULL
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
UPPER TRIBUNAL JUDGE PERKINS

Between

JOSELYN SANCHEZ PUNO
(ANONYMITY DIRECTION not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr R Khosla, Solicitor with DJ Webb & Co
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS
1. We see no need for, and do not make, an order restricting publication of any of the facts on this case.
2. This is an appeal against the decision of the First-tier Tribunal dismissing the appeal of the Appellant against the decision of the Secretary of State on 6 June 2014 refusing to vary her leave to remain in the United Kingdom as a domestic worker.
3. It is clear to us that the sole matter of concern raised by the Secretary of State that caused her to doubt that the appellant was in fact employed as a domestic worker in the household of her employer is the method of paying her wages. The evidence clearly shows that her wages are not paid by the person for whom she works but by a company not self-evidently connected in any way with her employer.
4. This is a perfectly proper reason for concern but it is not determinative. Whether or not the appellant works for the people in whose house she lives, as she must if she is to satisfy the Rules, is a matter of fact and the evidence about how she is paid can be no more than a contrary indication.
5. In many circumstances it would be a very compelling contrary indication but the Secretary of State's own guidance recognises expressly that it is not conclusive. The guidance postulates, for example, a person being paid from a company controlled by the employer.
6. We find that the First-tier Tribunal has clearly erred because the First-tier Tribunal Judge directed herself specifically to the guidance given on the Rules, asked herself if the facts fitted the guidance, decided that they did not and dismissed the appeal. What the judge should have done, but did not do, was to have reflected and asked herself if the evidence persuaded her that this Appellant is employed in the household where she actually works.
7. There is a great deal of evidence to support that conclusion. There is the testimony of the people in whose house she works and there is her own testimony, none of which was challenged in any material or significant way; there is the evidence of a written job description and a contract of employment which, although satisfactory documents, are clearly home-made and add to the picture of her working in a private household for the people who live there. In contrast there are absolutely no contractual documents suggesting that she is the employee of the people who pay her wages.
8. How then are the wages paid? The Appellant offered an explanation. She said that the wages came through a company because the householder has a strong interest in that company. We do not find it necessary to know the precise details of that interest. He has sufficient authority to organise the affairs of the company so that it is an agent for paying the Appellant's wages. There may be many good reasons for that. We are certainly in no position to say there is anything sinister or improper about it. The wages are clearly and openly paid. It is inherently likely that proper accounting arrangements have been made.
9. It is clear to us that the contrary indication of the source of wages is not sufficient to disperse the other unchallenged evidence showing this Appellant to be the employee of the people for whom she works.
10. The Appellant has satisfied us that it is at least probable that she is employed by the householder at the place where she lives and works.
11. The identity of her employer is the only matter of contention. The Rules require her to be employed by the householder at her place of work. The evidence clearly shows that the householder is her employer. That is the decision the judge should have reached and would have done if she had applied her mind to the evidence.
12. We set aside the First-tier Tribunal's decision. We substitute a decision allowing the appeal against the Secretary of State's decision.
Notice of Decision

The appeal is allowed under the rules.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 9 June 2016