Students can change courses after arrival in the UK
In GO v Secretary of State for the Home Department [2008] EWCA Civ 747 the Court of Appeal has overturned the Asylum and Immigration Tribunal’s interpretation of the immigration rules concerning students’ obligations regularly to attend and to make satisfactory progress on their “courses of study”
Back in February of 2007 we reported the Asylum and Immigration Tribunal’s determination in TY (Student; 'satisfactory progress'; course of study) Burma [2007] UKAIT 00007).
In TY the Tribunal decided that under the applicable immigration rules a student could not succeed in an application for an extension of his or her stay in the United Kingdom unless the student had demonstrated satisfactory progress on the course for which he had originally been given leave to enter the UK. It wasn’t open to the student to switch, for example, from a course which was difficult to an easier one and then to say that he or she had made satisfactory progress on the second course.
Then in July of 2007 in JJ and SS (Student; regular attendance; which course?) Gambia [2007] UKAIT 00050 AIT the Tribunal said that in relation to the need to show regular attendance a student seeking an extension of stay must show regular attendance on the course for which he or she had been granted leave to enter. Students couldn’t reasonably be allowed to rely on past attendance on previous courses if their attendance on the course for which they had leave to remain at the time of the decision on their application for an extension of stay had been unsatisfactory.
These two determinations interpreted sub-rules 60 (iv) and 60 (v) of the immigration rules. The previous year – in SW (Jamaica) [2006] UKAIT 00054 the Tribunal held that since rule 60 (v) required that a student applying for an extension of stay:
(v) can show evidence of satisfactory progress in his course of study including the taking and passing of any relevant examinations;
- it followed that if the student’s course required him or her to sit examinations and these were failed – the student could not show satisfactory progress and the application for an extension would have to be refused.
It can be seen that the regime established by these interpretations of the rules given in these three determinations is very strict indeed. Unsurprisingly many applications made by students for extensions of their stay have been refused, and the Asylum and Immigration Tribunal have dismissed appeals against those refusals in the application of the determinations referred to above.
There were eight joined appeals before the Court of Appeal. The Court began by examining the power under which the immigration rules are made. This is section 3 (1) (c) of the Immigration Act 1971. The Court immediately found that there was no authority given to the Secretary of State by this section whereby she can impose conditions upon a student entrant as to which course he or she was to follow.
Therefore although the Tribunal’s interpretation of sub-rule 60 (v) was consistent with the words of the sub-rule, it was not consistent with the Immigration Act 1971.
The Court went on to examine the sections of the Visa Application Form which people hoping to study in the UK are required to complete. In these sections applicants were asked whether they intended to do another course when the one upon which they had been accepted had finished – and it was clear that applicants would not be disqualified from a visa if they said that that they did intend to undertake another course. Similar questions were asked in the form to be completed by a student who had already entered the UK and was seeking an extension of their stay as a student.
From this the Court concluded:
“Thus the information upon which the Home Office decides applications to enter as a student contemplates that the entrant may progress in the fullness of time from one course to another. More importantly, it does not suggest that entry will be conditional on no changing courses. The information required on an application to remain as a student clearly contemplates the possibility that the student will not continue (or possibly even embark) on the course for which he or she is admitted.”
The Court then examined the relevant immigration rules. It found that rule 57 – “Requirements for leave to enter as a student” – required at rule 57 (i) that the applicant for a student visa had been accepted on a course of study at a specified kind of academic institution. However the rule’s requirement regarding what the applicant intended to do after entry was simply that he or she:
(ii) is able and intends to follow either:
(a) a recognised full-time degree course or postgraduate studies at a publicly funded institution of further or higher education; or
(b) a period of study and/or research in excess of 6 months at a publicly funded institution of higher education where this forms part of an overseas degree course; or
(c) a weekday full-time course involving attendance at a single institution for a minimum of 15 hours organised daytime study per week of a single subject, or directly related subjects; or
(d) a full-time course of study at an independent fee paying school;
Strikingly therefore the student does not have to intend to study the course upon which he or she is enrolled. Instead the student must intend to study any of the kinds of courses referred to in sub rule (ii) (a) to (d).
It had been the Tribunal’s interpretation of the words “his course of study” – as they appeared in sub rule 60 (v):
(v) can show evidence of satisfactory progress in his course of study including the taking and passing of any relevant examinations;
- which had led to the Tribunal’s decision in TY that students applying for an extension of their stay had to show that they had made satisfactory progress in the course which had led to their initial grant of leave to enter the UK. This in turn had led the Tribunal in JJ and SS to “read down” the attendance requirement in rule 60 (sub rule 60 (iv)):
(iv) can produce satisfactory evidence of regular attendance during any course which he has already begun; or any other course for which he has been enrolled in the past;
so that rather than referring to “any course” or “any other course” it referred instead to the course upon which the student had been enrolled prior to his or her entry to the UK.
The Court took the view that “his course of study” – as it appeared in rule 60 (v) was ambiguous. To interpret the word “his” properly it was necessary to examine other provisions. The application forms and the Home Office’s guidance notes – and the wider words of rule 60 (vi), which suggested that students may well have completed a range of different courses, all led to the conclusion that sub-rule 60 (v) did not have to refer to the student’s original course.
Although the Court would have reached this conclusion anyway – it was also consistent with its earlier judgment in Zhou v Secretary of State [2003] EWCA Civ 51. In that case the Court had observed that many circumstances could be conceived of whereby a student would be unable to complete the necessary number of hours per week of attendance on a course. Also the student might find that the course upon which he or she had embarked was unsatisfactory and that therefore the student would wish to transfer to another course. Neither of these eventualities would place the student in breach of any conditions attached to his or her leave to enter. The leave to enter was leave to enter “as a student”.
This left the question of whether SW (Jamaica) [2006] UKAIT 00054 was correctly decided. Did rule 60 (v) operate so as to require students to pass exams – and to require them to leave the UK if they did not? It was clear that the “single course assumption” underlining the overturned determinations in TY and JJ and SS was also material to the reasoning in SW.
The obvious answer to this – and the one which the Tribunal in SW had itself invoked, was simply to point to the existence of rules 69A to 69F, which provide both for re-entry to the UK and for an extension of stay to re-sit exams. But counsel for the Home Office did not attempt to persuade the Court that these rules assuaged all of the possible effects of the Tribunal’s incorrect reading of sub-rule 60 (v). They did not provide:
“for an extension of stay in order to repeat a year which has been lost through illness or bereavement or to sit examinations which the student was unable for these or other reasons to attempt.”
Counsel for the Home Office attempted to reassure the Court that in practice people were not sent home because they failed exams. The re-sit rules were applied flexibly. However the Court noted that there were two problems with this. Firstly the availability of the re-sit rules did not make it possible for students who had done well in a course to which they had changed to get an extension of stay under rule 61 – because of the restrictive interpretation of 60 (v) in SW. Secondly from the facts of the eight cases before them it was clear that the power to be flexible:
“was not always exercised either generously or even fairly”
The Court preferred to consider whether the rules really needed to be interpreted so stringently. In doing so it took account of Mr Justice Woolf’s judgment in R v Immigration Appeal Tribunal ex parte Gerami [1981] Imm AR 187:
"...it would not be right to treat a person as disqualified from being given further leave to remain in this country because of a prolonged lack of success. That is a matter which only goes to discretion under para 12 and does not amount to a condition precedent to a successful application."
This judgment applied to an earlier version of the student immigration rules – but in the Court’s view it formed part of the received wisdom of the law and practice relating to the admission of foreign students. It made so much sense that it would take decisive words to displace it.
The Court therefore concluded that:
31. In our judgment the meaning of rule 60(v) is that a student who wants an extension of stay must be able to produce evidence of satisfactory progress, whether on the course named in his application for entry clearance or on another recognised course which he or she has undertaken. A failure to sit or to pass relevant examinations will always be material to the evaluation of the student's progress, but whether it is decisive will depend on the reason for it. If the reason is not inconsistent with satisfactory progress, rule 60(v) is satisfied.
As a consequence of its judgment the allowed five of the students’ appeals before it outright, dismissed one outright, and sent two back to the Asylum and Immigration Tribunal for reconsideration.
