Vitalis Madanhi

Vitalis Madanhi is the principal solicitor with Bake & Co Solicitors based in Birmingham, England

UK court delivers important ruling on ‘genuine visitor’

THE United Kingdom’s Upper Tribunal has clarified the issue of a genuine visitor. In many visa applications, the majority of applicants would be seeking to come to the UK to visit family. Entry clearance officers are making it extremely difficult for people to travel to the UK on the basis of visiting. In the majority of cases, people are refused on the basis that they are not genuine visitors and yet indeed they would be keen to share times with their families.

In almost each refusal letter entry clearance officers state the following:

A visitor should not, for example, normally spend more than six out of any 12 months in the UK. In view of all the above, I do not consider that your actions are within the spirit of the immigration rules for family visitors… Given that you have been spending long periods of time in the UK over the last few years, this raises doubts as to your true intentions.

Given all of the above and considering your application as a whole, I am not satisfied that you are genuinely seeking entry as a visitor for a limited period as stated by you, not exceeding six months and that you intend to leave the UK at the end of the period of the visit as stated by you (as required by Paragraph 41 (i) and (ii) of the Immigration Rules.”

The Immigration rules state that “The requirements to be met by a person seeking leave to enter the United Kingdom as a general visitor are that he: (i) is genuinely seeking entry as a general visitor for a limited period as stated by him, not exceeding six months…; and (ii) Intends to leave the United Kingdom at the end of the period of the visit as stated by him…”

In the light of the above, entry clearance officers normally base their refusal letters against loved ones wishing to visit us on the intentions of the visit and the genuineness of the visit. The intentions of the visit and how genuine it is are deliberately given a very restrictive interpretation to deny visas.

In a recent case of Sawmynaden (Family visitors – considerations) the appellant is a citizen of Mauritius who was born on February 13, 1945. She is now 67 years old and was already over 65 when, on May 26, 2011, the Entry Clearance Officer in Port Louis refused to grant entry clearance to her as a family visitor intending to visit her daughter. She was refused because the entry clearance officer was not satisfied that she genuinely intended to visit her two daughters who are resident and working in the UK.

The appellant was a retired civil servant with a good pension of £450 a month. She owns her own home. Her husband died in August 2010. She has family in the United Kingdom as well as a son in Canada. She had visited before and she wanted to continue visiting her family.

In that case the Upper Tribunal made significant clarification as to how visit visa applications should be assessed. The Tribunal considered policy guidance entitled “General visitors: frequency and duration of visits” suggesting that “a visitor should not normally spend more than six out of any 12 months in the UK unless they have a good reason, such as receiving private medical treatment”. It said that whilst this was useful guidance, it did not state the law and it would be wrong to refuse someone entry clearance as a general visitor just because they have spent more than six of the last twelve months in the United Kingdom.

In the final analysis, the court ruled that: “In reaching this conclusion, we have considered what factors might be material in assessing whether an applicant is genuinely seeking entry as a general visitor for the limited period as stated by her, not exceeding six months, and intends to leave the United Kingdom at the end of the period of the visit as stated by her. The following considerations are relevant and may be helpful:

# 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.

# The periods of time spent in the United Kingdom and the country of residence will always be important.

# 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.

# The links that the appellant retains with her country of residence will be a material consideration. The presence of other family members will be a material consideration.

# 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?

# 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.

# 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.

# 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 six-month duration of a single permitted visit); so, too, a serious medical condition.

# 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?”

The first Judge had dismissed the appellant’s appeal and found that she was not an “ordinary visitor”. In addition, the first Immigration Judge had 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.”

In response, the Upper Tribunal observed that: “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.”

In the result, the Upper Tribunal reversed the decision of the first Judge and ruled that the appellant was a genuine visitor who wished to spend time with her family. The above observations were then made to help future visitors’ visa applicants.

In the light of the above, the Upper Tribunal clarified the position of genuine visitors and intentions. It is hoped that the above guidelines would assist some of the family members who are struggling to come to the UK to visit their family members. It helps to challenge any such refusals though the courts. Considering that the majority of people are now settled in the UK, it is important that families be allowed to visit.

Vitalis Madanhi is the Principal solicitor of Bake and CO Solicitors, a firm specializing in Immigration and asylum law in Birmingham, UK. He can be contacted at vmadanhi@bakesolicitors.co.uk, Phone 01216165025, mobile 07947866649 www.bakesolicitors.co.uk

Disclaimer: This article only provides general information and guidance. It is not in any way intended to replace or substitute the advice of any solicitor or advisor.Each case depends on its facts. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information