KJ (Working holiday maker – third party support) India [2011] UKUT 34 (IAC) (26 January 2011): This case was about whether an Indian national who applied for entry clearance to the UK, as a working holiday maker, could rely on ‘third party’ financial support whilst here. 

The key issues were what constituted ‘third party’ support in the context of the Immigration Rules (especially paragraph 85 of Rule 385).  Having decided whether the applicant’s father counted as third party support (or whether family members were exempt), the court ruled on whether the ban on holiday makers relying on public funds, extended to include financial support from a holiday maker’s family members.

The Home Office had refused the applicant entry to the UK for a working holiday on 17 March 2009.  The Home Office applied Paragraph 95 of the Statement of Changes in the Immigration Rules HC 395 (as amended).  This states that any prospective working holiday maker must show that s/he is able to, and intending to, maintain and accommodate him/herself without recourse to public funds.  The other conditions are that the prospective holiday maker must only intend to take employment that is incidental to the holiday.  S/he must intend to leave the UK after the holiday ends.

The HO said that it was not credible that the applicant could rely on his father for financial support, as he has stated in his application for entry to the UK.  Based on the money the applicant’s family had, the applicant would need to spend his father’s retirement fund in order to remain financially independent of the state whilst in the UK.

On appeal, the applicant argued that his father was not a ‘third party’ and that the support of a family member did not mean ‘third party’ support, but rather family members supported each other, especially in the Indian tradition.

Permission to appeal was granted because it was arguable (following Mahad v Entry Clearance Officer [2009] UKSC 16) that Paragraph 95 of the Immigration Rules might not extend to ‘third party’ support.  In other words, working holiday makers were entitled to rely on family members to fund or partially fund their stay in the UK.

The Home Office conceded that, provided the applicant was able, and intended to, maintain and accommodate him/herself, without using public money, whilst in the UK, Mahad meant that financial support from family members was not ruled out by the Immigration Rules.

In principle, then, the law did not rule-out working holiday makers using family funds to holiday in the UK.  However, on the facts of the instant case, the applicant’s claim that his father’s retirement fund was truly available to him for travel to the UK, seemed implausible.  The decision to reject the applicant’s application for a working holiday stood therefore, and he was denied entry to the UK.

Zoë Sutherland