Working holidaymakers need to show an intention to work

Young nationals of countries listed at Appendix 3 of the immigration rules can apply to come to the United Kingdom as “working holidaymakers” under immigration rule 95. These countries have reciprocal agreements with the UK. The people who may apply are Commonwealth citizens and those from other countries with historic links to the UK.

Applicants must be aged between 17 and 30 years old and not have any dependent children aged 5 or over or who will reach this age during the applicant’s working holiday. The working holiday can last for up to two years.

The rule also requires applicants either to be unmarried or not to be in a civil partnership or to be holidaying with their spouses or civil partners.  Additionally they must intend:

•    to maintain and accommodate themselves without recourse to public funds - and be able to do so

•    “only to take employment incidental to a holiday” and then only for a maximum of 12 months’ of the working holiday

•    to leave the UK at the end of the working holiday, and have the means to do so.

Despite the need to show an intention to leave the UK at the end of the holiday it is possible under the immigration rules for working holidaymakers to switch to the category of work permit employment in an occupation listed on the Work Permits (UK) Shortage Occupations list.   After five years in such a capacity an application can be made for indefinite leave to remain in the UK.  Because applicants can achieve the first step to settlement in the UK by being admitted under the working holidaymaker rule its significance should not be underestimated.  

The Appellant in  NS (India) v Entry Clearance Officer, New Delhi [2007] UKIAT 00090 had lost his appeal before an Immigration Judge because the judge was not satisfied that he had shown that he had any intention to work in the UK.  So the Asylum and Immigration Tribunal had to decide whether rule 95 (vi) did in fact require the Appellant to have shown an intention to work in the UK.  It considered a Court of Appeal judgment (Baris v Immigration Appeal Tribunal [1987] Imm AR 13) in which the Court had, in interpreting an earlier version of the working holidaymaker rule, decided that applicants could not be disqualified under the rule if they intended only to get a job if they became bored or their financial arrangements went wrong.  

The Tribunal considered the various previous forms of the rule and  compared them with the current form of the relevant part of the rule.  This is:

“(vi) is intending only to take employment incidental to a holiday, and not to engage in business, or to provide services as a professional sportsperson, and in any event not to work for more than 12 months during his stay;”

The Tribunal said that in its judgment as it was now drafted rule 95 (vi) was “incomprehensible”.   

However the Tribunal went on to determine whether the Immigration Judge had or had not erred in deciding that applicants needed to show an intention to work.  It considered the contents of the Immigration Directorate’s Instructions (the IDIs) – and compared the requirements of the rules in respect of visitors with those of rule 95.   It concluded the rule did indeed impose such a requirement and upheld the Immigration Judge’s decision.

The reasons given by the Tribunal for this finding are not exactly compelling.  They found that the judgment in Bari  was no longer to be followed  due to the changes in the rule since that judgment.  They rely upon the rule’s emphasis on applicants needing to be able to maintain and accommodate themselves – although it must be said that this is not one of those rules in which the provider of the maintenance and accommodation is spelt out.  There does not appear to be any reason why this requirement could not be met by evidence of “third party support” - in other words support and or accommodation could be provided by a relative or even a friend of the applicants.  In any event there was also a requirement for applicants to show that they could be maintained and accommodated without recourse to public funds in the rule considered long ago by the Court of Appeal in Bari.

The Tribunal also notes that there is nothing in rule 95 to suggest that an intention to do voluntary work would not satisfy the need to show an intention to work.  Voluntary work cannot have anything to do with an ability to maintain and accommodate oneself.  

The Tribunal also relied on the IDIs but acknowledged that the advice given to those thinking of making an application as a working holidaymaker on the Home Office’s website gave the impression that work was optional.  

Unfortunately the Appellant was not represented before the Tribunal and so it seems most unlikely that this determination will be appealed.  It will now be followed by Immigration Judges and applied in entry clearance decisions despite the fact that it is not the result of the Tribunal’s consideration of arguments from each side.  Instead the Tribunal had to do its best to work out the meaning of the rule effectively on its own.  

Furthermore the Tribunal made no reference to its own relatively recent examination of the meaning of rule 95 (vi) in AK (Bangladesh) [2007] UKAIT 00064.  Neither did it refer to another recent case  - AG (Working holidaymaker: ‘incidental’) India [2007] UKAIT 00033, in which the Tribunal dismissed an appeal because of its concern that the Appellant’s intention was to work rather than to have a holiday.   Although in these cases the Tribunal was deciding a different point it emphatically found that the rule emphasised that the purpose of an application must be the holiday and not the work.  It would seem from this that that Tribunal would have been reluctant to see rule 95 (vi) as imposing an obligation to show an intention to work – as opposed to an inclination to work if work incidental to the holiday should arise.