KS (India) & Anor v Entry Clearance Officer

Under rule 95(v) of the Immigration Rules HC 395, a working holidaymaker had to establish an ability and genuine intention to maintain and accommodate himself throughout the proposed holiday. The assessment was based on the applicant’s available funds and realistic prospects of permitted incidental work. Free board or lodging from relatives or friends could be accepted, but it did not cure an inability to meet that requirement independently. The short initial-period guidance did not displace the need to assess self-sufficiency over the whole working-holiday period.

Two applicants sought entry clearance as working holidaymakers under rule 95 of the Immigration Rules HC 395. Each had savings, a prospective source of work and relatives willing to provide accommodation and financial assistance. Immigration judges dismissed their appeals because they considered themselves bound by the Tribunal’s decision in TS (Working holidaymaker: no third party support) (India) [2008] UKAIT 00024.

In KS’s case, Collins J referred the appeal directly to the Court of Appeal under section 103C of the Nationality, Immigration and Asylum Act 2002. In JA’s case, a stage-one reconsideration found no material error of law and permission to appeal was granted. The common issue was whether rule 95(v) permitted reliance on third-party support when establishing the ability to maintain and accommodate oneself.

1. Appeals dismissed by a majority. Wall LJ and Pill LJ held that rule 95(v) required an applicant to demonstrate self-sufficiency over the proposed working holiday. Sedley LJ dissented.
2. The words “able and intends to maintain and accommodate himself” required an assessment of the applicant’s available funds, realistic prospects of work incidental to the holiday, and capacity to meet living and accommodation costs over the relevant period. An applicant could accept hospitality, including free board and lodging, but its availability did not establish the required independent capacity. The possibility or likelihood of assistance did not itself defeat an application, but it did not relax the requirement.
3. The majority accepted the analysis in TS (Working holidaymaker: no third party support) (India) [2008] UKAIT 00024 and MH (Working holidaymaker: intention to support) Bangladesh [2008] UKAIT 00039. The two-month entry-clearance guidance concerned the period before wages might be received. It did not remove the need to show that maintenance and accommodation could be secured throughout a two-year scheme in which employment was only incidental and time-limited.
4. JA’s savings and low-paid, part-time work did not demonstrate the required ability to support himself. KS’s circumstances likewise did not establish self-sufficiency. The underlying Tribunal decisions therefore stood.
5. Dissenting, Sedley LJ would have construed rule 95(v) as requiring an applicant to be able to pay his way from funds or anticipated earnings and to secure accommodation. On that view, reliable hospitality from relatives or friends could provide the applicant’s accommodation. He would have allowed JA’s appeal and remitted KS’s case.

• Court of Appeal (Civil Division) — By a majority, dismissed both appeals and upheld the rejection of entry clearance under rule 95(v): [2009] EWCA Civ 762.
• Asylum and Immigration Tribunal — Immigration judges dismissed both entry-clearance appeals, applying TS (Working holidaymaker: no third party support) (India) [2008] UKAIT 00024. JA’s stage-one reconsideration found no material error of law.
• Administrative Court — In KS’s case, Collins J referred the appeal to the Court of Appeal under section 103C of the Nationality, Immigration and Asylum Act 2002.