Krishnambal Sawmynaden v The Entry Clearance Officer

A succession of family visits does not itself prevent an applicant from being a genuine visitor. The decisive inquiry under Immigration Rules, paragraph 41, is whether the applicant genuinely seeks entry for the limited period stated and intends to leave at its end.

The Tribunal must assess the reality of the arrangements as a whole. Relevant matters include time spent in the United Kingdom and the country of residence, the purpose and pattern of visits, future intentions, and continuing links abroad. Helping relatives with household, childcare or care arrangements is not inherently inconsistent with visitor status. A longer visit caused by a family emergency requires supporting evidence before it can properly be treated as residence.

The appellant, a Mauritian widow and retired civil servant, was refused family-visitor entry clearance to visit her daughter in the United Kingdom. The Entry Clearance Officer relied on the frequency and duration of her previous visits, her family connections in the United Kingdom, and doubts about her intention to leave.

An Immigration Judge dismissed her appeal in a determination promulgated on 26 October 2011. The judge treated her anticipated use of a five-year multiple-entry visa and a possible future settlement application as showing that she was not an ordinary visitor.

The Upper Tribunal considered whether those matters answered the statutory immigration question: whether she was genuinely seeking entry as a visitor for a limited period and intended to leave at the end of that period.

1. Appeal allowed. The Immigration Judge erred in law by asking whether the appellant was an ordinary visitor and by relying on speculative future settlement intentions. The correct issue was whether she intended a visit within the period permitted for a single visit and would leave at its end.

2. Paragraph 41(i) and (ii) of the Immigration Rules impose no numerical restriction on successive visits and no mandatory interval between them. Time spent in the United Kingdom and abroad may justify close scrutiny, but a pattern of prolonged stays and short returns does not automatically disqualify an applicant from visitor status.

3. The Tribunal must determine the reality of the arrangement between the visitor and the United Kingdom host. It should consider the purpose and pattern of visits, past and intended conduct, the elapsed time since earlier visits, links with the country of residence, and family there. The question may be tested by asking whether the applicant has in reality become merely a visitor to the country of residence in order to secure repeated admission to the United Kingdom.

4. Participation in family life, including household help, childcare or care arrangements, is not by itself inconsistent with being a genuine visitor. Nor should a family emergency, such as bereavement, pregnancy, childbirth or serious illness, be treated as residence without adequate evidence.

5. On the evidence, the appellant’s longer stay followed her husband’s death and was reasonably explained by her wish for support from her children. There was no proper basis for an adverse credibility finding. The Tribunal remade the decision and allowed the appeal under the Immigration Rules.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal and remade the decision under the Immigration Rules.

• Immigration Judge: Dismissed the appeal in a determination promulgated on 26 October 2011; that determination was set aside for error of law.