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• » Upper Tribunal outlines relevant considerations for ‘genuine visitor’

Upper Tribunal outlines relevant considerations for ‘genuine visitor’

8 June 2012

The recent decision of the Upper Tribunal (Immigration and Asylum Chamber) in Sawmynaden (Family visitors – considerations) [2012] UKUT 00161(IAC) provides useful guidance on the considerations which are relevant when determining whether an applicant is a ‘genuine visitor’. 

The appellant, a Mauritian citizen who had many close family members in the UK, was refused a five-year multiple entry clearance as a family visitor in May 2011. The appellant had frequently visited the UK over the past ten years, and had stayed for a particularly extended period of 172 days from October 2010, shortly after her husband passed away.

As with many cases, the Home Office refused her next application for a visit visa on the basis that they were not satisfied that she was genuinely seeking entry as a visitor for a limited period. It was stated that given she had been spending long periods of time in the UK over the last few years, this raised doubts as to her true intentions.

The Upper Tribunal held that in determining whether to grant a family visit visa, the decision-maker should not speculate on the likelihood of success of any future applications for settlement or whether the applicant was likely to apply for settlement at a later date, or consider if the applicant was an ‘ordinary visitor’ in order to satisfy the requirements of the Immigration Rules. The Tribunal stated that the sole issue was whether the applicant intended to ‘visit’, principally by establishing that they would exit within the period specified for a single visit.

In his decision, Judge Jordan set out the following relevant considerations when determining whether an applicant is a ‘genuine visitor’:

(i) There is no restriction on the number of visits a person may make to the UK, nor any requirement that a specified time must elapse between successive visits;

(ii) The periods of time spent in the UK and the country of residence will always be important;

(iii) Both the expressed purpose of the visit and what the appellant has done in the past and intends to do in the future is material, together with the length of time that has elapsed since previous visits. In cases of this type, the appellant will be visiting a relative, often a parent visiting a son or daughter, or a son or daughter visiting a parent. In the case of a parent visiting a son or daughter, the parent will often fully participate in helping around the house and providing childcare..In the case of a son or daughter visiting a parent, the adult child will often assist in care arrangements. None of these activities, for that reason alone, will take the individual outside the definition of a genuine visitor;

(iv) The links that the appellant retains with their country of residence will be a material consideration. Inevitably, there is likely to be access to accommodation if only for the purpose of returning home in order to make the application that is intended to result in a return to the UK. The presence of other family members will be a material consideration;

(v) The Tribunal is required to ascertain the reality of the arrangement entered into between the appellant and the host in the United Kingdom. Is the reality that the appellant is resident in the United Kingdom and intends to be for the foreseeable future?;

(vi) The issue may be approached by considering whether the reality is that the appellant is now no more than a visitor to her country of residence as the purpose of the return home is confined to using his or her presence there solely as the means of gaining re-admission to the UK;

(vii) This does not preclude the appellant from remaining in the country of residence for the least amount of time sufficient to maintain her status as a genuine visitor;

(viii) Family emergencies, whilst likely to result in a longer visit than the established pattern should not be regarded as taking up residence without adequate supporting evidence to that effect. Thus, the pregnancy of a daughter or daughter-in-law or the aftermath of the birth might explain a more protracted stay (within the 6-month duration of a single permitted visit); so, too, a serious medical condition;

(ix) There may be comparisons with the person who owns homes in two different countries. Is he resident in both or a visitor to one of them?

This guidance is helpful because it acknowledges that people choose to visit the UK for a wide variety of reasons and may participate in activities not normally undertaken by tourists, such as immersing themselves in the lives of their regularised family members by looking after children and so forth.

However, such guidance could be of little or no use if future plans to remove the full right of appeal for those applying to enter the UK as a family visitor are given Parliamentary approval and Royal Assent. These changes will be implemented by 2014 but will begin to be introduced from July 2012, with no right of appeal being introduced for visiting uncles, aunts, cousins, nieces and nephews.

Even with these future restrictions, applicants who are refused family visit visas will still be able to appeal on limited grounds of human rights and, arguably, the guidance given in Sawmynaden could apply to the assessment of whether the refusal of a visit visa amounts to a disproportionate breach of the right to family life under Article 8 of the European Convention of Human Rights.