Eliza Oppong v Entry Clearance Officer - Accra

A person seeking entry clearance as a general visitor is entitled to it if the requirements of paragraph 41 of the Immigration Rules HC 395 are met. The undefined labels “visitor” and “resident” do not create a separate exclusion.

Providing temporary care for a relative is compatible with being a general visitor. Frequent or lengthy previous visits, including more than six months in a twelve-month period, may justify rigorous scrutiny of the proposed visit and intention to leave. They do not, without more, disqualify the applicant as a matter of law.

Eliza Oppong v Entry Clearance Officer - Accra concerned a Ghanaian national who sought entry clearance for a six-month family visit in order to assist with the care of her brother, who had suffered a stroke.

The Entry Clearance Officer refused the application under paragraph 41(i) and (ii) of Immigration Rules HC 395, relying principally on the duration and frequency of her previous visits. The First-tier Tribunal accepted that she intended to return to Ghana, but dismissed her appeal on the basis that her repeated visits to provide long-term care made her a resident rather than a genuine visitor.

The Upper Tribunal had to decide whether care of a relative and previous lengthy visits legally prevented her from qualifying as a general visitor.

1. Appeal allowed. The Upper Tribunal set aside the First-tier Tribunal’s decision and substituted a decision allowing the appeal.

2. Paragraph 41(i) of Immigration Rules HC 395 requires an applicant to be genuinely seeking entry as a general visitor for the limited period stated, not exceeding six months. The Rules do not define either “visitor” or “resident”. The circular reference in paragraph 41(i) does not add an independent requirement beyond applying for entry in that capacity.

3. A person who in fact satisfies the requirements for admission as a general visitor is a general visitor and is entitled to entry clearance. A visitor’s intention to leave at the end of the proposed visit means that the stay is transient, not permanent. The limited scope to switch from visitor status and the absence of admission for a route leading to settlement also supported the conclusion that compliance with the Rules does not make the person a resident.

4. There is no inherent incompatibility between being a general visitor and temporarily caring for a relative in the United Kingdom. The relevant immigration guidance contemplated that an applicant wishing to care for a friend or relative for a short period should meet the general-visitor requirements. The appellant could therefore be both a carer and a general visitor.

5. Frequent visits and little time in the country of nationality can properly lead to close examination of the claimed duration and purpose of the visit, and of the intention to return. But a prolonged stay punctuated by departures and prompt fresh applications is not, by itself, a legal bar to visitor status. Policy guidance suggesting that a visitor should not normally spend more than six of any twelve months in the United Kingdom did not state the law.

6. As the First-tier Tribunal had found that the appellant intended to return and she met every requirement of paragraph 41, its conclusion that she was not a general visitor was perverse.

• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s dismissal and substituted a decision allowing the appeal.
• First-tier Tribunal: Dismissed the appeal against the refusal of entry clearance, notwithstanding its finding that the appellant intended to return to Ghana.
• Entry Clearance Officer: Refused entry clearance on 2 November 2009 under paragraph 41(i) and (ii) of Immigration Rules HC 395.