Domestic workers can travel to the UK independently of their employers in certain circumstances in accordance with policy guidance
Ozhogina and Tarasova (deception within para 320(7B) - nannies) Russia/Russian Federation [2011] UKUT 197 (IAC) (24 May 2011)
This Upper Tribunal case was heard at Field House on 18th October 2010. The appellants (Miss Ozhogina and Miss Tarasova) are Russian nationals and are nannies by profession. They applied to enter the UK as domestic workers pursuant to the terms of paragraph 159A of the immigration rules. They were denied entry clearance and appealed against the decision to the First Tier Tribunal. On 26th February 2010, their appeal was dismissed. The appellants applied for permission to appeal which was granted.
The immigration rules
The requirements to be met under paragraph 159A are that the applicant:
(1) is aged between 18-65 inclusive;
(2) has been employed as a domestic worker for one year or more immediately prior to application for entry clearance under the same roof as his employer or in a household that the employer uses for himself on a regular basis and where there is evidence that there is a connection between employer and employee.
(3) that he intends to travel to the UK in the company of his employer, his employer’s spouse or civil partner or his employer’s minor child”
These were the requirements in consideration before the Tribunal in this appeal.
Facts of the case
In this case, it was held that the appellants had been in continuous employment with their employers up until they made their applications in July 2009. However, their employer travelled back and forth to the UK and in 2008, decided to remain here on the basis of a fear of return to Russia. The employers made a claim for asylum in the UK.
The appellants had previously applied to visit their employers in the UK and did not breach any conditions of their visit visas. The immigration judge in the First Tier Tribunal concluded that the appellants did not form a part of the employer’s household as they were not under his roof. This conclusion was challenged.
Error of First Tier Tribunal
The Upper Tribunal held that the First Tier Tribunal erred in failing to distinguish between the expressions “under the same roof” and “in a household”. The Tribunal stated that although the appellants did not physically live with their employers under his roof (as the employer and his family had moved to the by this stage), they were still members of his household. The appellants remained employed in Russia by their employers and were waiting to be called to the UK. The Tribunal found that the appellants did fall within paragraph 159A (ii) contrary to the conclusion of the First Tier Tribunal.
Another issue considered by the Tribunal related to paragraph 159A(iii) which required that they intend to travel to the UK with their employer which was not a possibility in light of the employers fears of return to Russia. Reference was made to the IDI’s which contains discretion for domestic workers to travel independently (chapter 5, section 12- domestic workers in private households) where for instance, there is no excess time lapse or where the employer provides a letter clearly stating why the domestic worker is to travel alone. The Tribunal held that the respondents were bound to reach the same conclusion in light of the appellant’s circumstances and the correct application of the policy in the IDI’s.
Ultimately, the Tribunal held in this case that there was no lapse of time and that there was satisfactory evidence to explain why the appellants could not be accompanied by their employers.
The final issue dealt with by the Tribunal was the terms of paragraph 320 (7A) and (7B) dealing with grounds on which entry clearance were to be refused (specifically dealing with the use of false representations and previous breach of immigration rules). The Tribunal was satisfied that the appellants did not use deception and that, the respondent was required to show that a false statement was deliberately made for the purpose of securing an advantage in immigration terms. This was not the case here.
The appeal was subsequently allowed.
26th May 2011