Irina Anatolyevna Ozhogina v The Secretary of State for the Home Department

For paragraph 159A(ii) of the Immigration Rules, employment under the same roof and employment in a household are alternative conditions. A domestic worker may remain in an employer’s household although the employer is living in the United Kingdom and the worker remains abroad.

Paragraph 159A(iii) nevertheless requires travel in the employer’s company and cannot be construed to mean subsequent travel at the employer’s request. The applicable policy may permit independent travel where there is no excessive lapse and satisfactory evidence explains it. Under paragraph 320(7B), deception requires a deliberately false statement made to secure an immigration advantage; knowledge of falsity without that purpose is insufficient.

The appellants were Russian nannies employed by Mr and Mrs Chichvarkin. They applied for entry clearance to work in the employers’ United Kingdom household after the employers had remained in the United Kingdom and the Moscow home had ceased to be rented.

The First-tier Tribunal had rejected their appeals. It held that they did not satisfy paragraph 159A(ii) of the Immigration Rules and that prior visitor applications engaged paragraph 320(7B) because they had described themselves as managers in Russian employment documentation. It also found that the respondent had failed to consider policy permitting independent travel, but would otherwise have remitted that issue.

The Upper Tribunal considered whether the appellants satisfied paragraph 159A(ii), whether paragraph 159A(iii) could be met or excused under policy, and whether the earlier false statements amounted to deception for paragraph 320(7B).

1. The appeals were allowed. The First-tier Tribunal erred in treating the alternatives in paragraph 159A(ii) as one condition. The appellants were not living under the same physical roof as their employer, but remained in a household which he used regularly. Their continuing employment and position within that household satisfied paragraph 159A(ii).

2. Paragraph 159A(iii) has a clear and mandatory textual requirement that a domestic worker intends to travel to the United Kingdom in the employer’s company. It could not be construed to cover a worker travelling later, even where the employer was already in the United Kingdom. However, the relevant Immigration Directorate Instructions allowed independent travel where there was no excessive time lapse and satisfactory evidence explained why the worker travelled alone.

3. Applying Secretary of State for the Home Department v Abdi [1996] IAR 148, substitution rather than remittal was appropriate only if the respondent’s lawful decision was inevitable. That condition was met: there was no excessive lapse and the evidence established why the employers could not return to Russia merely to accompany the appellants.

4. Paragraph 320(7B) imposed a different and more serious consequence from paragraph 320(7A): a ten-year bar. Read with the definition of Deception in paragraph 6, and consistently with A v Secretary of State for the Home Department [2010] EWCA Civ 773, it required proof that a false statement was deliberately made to obtain an immigration advantage. The appellants knew that the description of them as managers was false, but the evidence did not establish that it was used to secure such an advantage. Paragraph 320(7B) therefore did not apply.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appellants’ appeals and substituted the outcome that the respondent was bound to reach under the applicable policy.
• First-tier Tribunal: Judge Lewis, by a decision dated 26 February 2010, dismissed the appeals. The Upper Tribunal held that the judge erred on paragraph 159A(ii) and paragraph 320(7B) of the Immigration Rules.