PS v Entry Clearance Officer (New Delhi)

There is no single prescribed test for assessing whether a working holidaymaker can maintain and accommodate himself without recourse to public funds. The appellant bears the burden of proving, on the balance of probabilities, that his proposed arrangements are practical.

Reliable evidence of likely expenditure may assist that factual assessment, but it is only a guide. It cannot determine the issue or add requirements to paragraph 95(v) of HC 395. Income-support rates are of limited assistance because they do not reflect accommodation, travel and other holiday-related costs. Published travel-cost material may provide a better indication where independent accommodation is required, but every case turns on its own evidence.

The appellant, an Indian national, applied for entry clearance as a working holidaymaker. The Entry Clearance Officer refused the application, including on the ground that he had not shown that he could maintain and accommodate himself without public funds.

Immigration Judge Lowe dismissed the appeal. She accepted that the appellant had initial funds, could obtain incidental work and intended a genuine working holiday, but assessed his likely expenditure by reference to travel-guide figures and found a shortfall. The High Court ordered reconsideration. The Asylum and Immigration Tribunal held that the Immigration Judge had made a material error of law.

On reconsideration, the Upper Tribunal determined the unresolved issue: whether the appellant satisfied paragraph 95(v) of HC 395.

1. Appeal allowed. The Immigration Judge’s decision was set aside for error of law. The Upper Tribunal substituted a decision allowing the appeal against refusal of entry clearance as a working holidaymaker.

2. Paragraph 95(v) of HC 395 required the appellant to show, on the balance of probabilities, that he was able and intended to maintain and accommodate himself without recourse to public funds. He had to explain his plans and the means by which they would be achieved. The inquiry was one of fact on all the evidence.

3. No single benchmark governed that inquiry. Evidence of likely costs could test whether the proposed arrangements were practical, provided that like was compared with like. Such evidence was guidance only. It could not be treated as determinative or as altering the language of the rule.

4. Income-support rates were not a satisfactory general benchmark for a working holidaymaker. They represented minimum provision for a resident and did not include accommodation, travel or other incidental costs of a holiday. Travel-guide figures were generally a better way of testing viability where an applicant had to finance accommodation throughout the stay, although the result necessarily depended on the individual facts.

5. The appellant’s realistic plans were to be based with family in the West Midlands, obtain work, and make shorter trips elsewhere when funds permitted. He had £2,800, access to family accommodation when needed, and likely earnings of up to £9,568. Those resources established his ability and intention to maintain and accommodate himself without public funds.

• Upper Tribunal (Immigration and Asylum Chamber): On reconsideration, allowed the appeal and substituted a decision allowing the entry-clearance appeal: [2010] UKUT 280 (IAC).
• Asylum and Immigration Tribunal: On 11 January 2010, found that the Immigration Judge had made a material error of law.
• Immigration Judge: Determination issued on 14 April 2009 dismissing the appeal against refusal of entry clearance.