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Genuine visitor: relevant and irrelevant considerations

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In the reported case of Sawmynaden (Family visitors – considerations) [2012] UKUT 00161 (IAC) the Upper Tribunal outline a number of factors relevant to the assessment of “genuine visitor”.

In Sawmynaden, the appellant had travelled to the UK on a number of occasions since 2001 in order to visit her daughter.  The appellant had stayed for a period of 172 days on her last visit to the UK in 2010. This had been within the period she was legally permitted to stay, but nevertheless the ECO refused the application, partly on the grounds that the appellant had spent too much time visiting the UK.

First-tier Tribunal Judge TRP Hollingworth, in dismissing the appellant’s appeal, found that she was not an “ordinary visitor” (a what?).

In addition, the Immigration Judge found the motivation(s) of the appellant “…overall were probably to use such visits in the future as a preliminary to settlement here at some stage.”

Thankfully, in response to this remarkable premonition, the Upper Tribunal state:

14. Once again, this is not the issue that the Immigration Judge was required to determine. Whatever the future applications may be or, indeed, whether they will or will not succeed (all of which is speculative) it appears that he accepted that the appellant was a visitor albeit for a purpose that he found fell outside those permitted under the Rules.  We are satisfied that this reasoning is wrong in law.  The sole issue before the Judge was whether the appellant intended to visit which necessitated her also establishing that she would leave at the end of the period permitted for a single visit.

The Upper Tribunal allowed the appeal, finding that:

16. We are satisfied that there was no reason for the Judge to dismiss the appellant’s claims, short of making an adverse credibility finding. However, there was, and is, no material upon which such a finding could properly have been made. The death of her husband was a reasonable explanation for her wishing to spend more time with her children. It follows that the appeal must succeed.

Along with reversing the unsustainable decision of the First Tier Tribunal, the Upper Tribunal outlines the following factors relevant to an assessment of a genuine visitor at paragraph 17 of the case:

(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 United Kingdom 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, often 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 in the house, providing child care.  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 her 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 United Kingdom.  The presence of other family members will be a material consideration.

(v) The Tribunal is required to ascertain what is 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 United Kingdom.

(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 will hopefully be of use to all concerned between now and 2014, when family visit appeals are expected to get the chop.

[ed. Disappointing the tribunal didn’t here refer to the admittedly aged Immigration Appeal Tribunal case of Powell (3129) which I think from my now long-ago initial IAS training settled the issue of repeat long visits back in the mid 1970s, and did so without proposing the use of a can opener to examine the contents of people’s brains.]

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