Students: New Case on 'regular attendance'

In JJ and SS (Student; regular attendance; which course?) Gambia [2007] UKAIT 00050 AIT, the Asylum and Immigration Tribunal (AIT) considered the requirements of ‘regular attendance’, as set out in the UK Immigration Rules relating to students.

The student was not entitled to establish regular attendance under the UK Immigration Rules by reference to a course undertaken without the UK Home Office’s knowledge.

A student seeking an extension of leave was required to show that there was satisfactory evidence of regular attendance on a course for which s/he had last been granted leave to enter (a visa) or to remain. If appropriate the student could also show a satisfactory level of regular attendance on a course for which permission to transfer had subsequently given by the Home Office. This would be a course which the student had already begun or, alternatively, where that was not possible, that the student had already completed. The AIT rejected the argument that the student could show regular attendance (or satisfactory progress) by relying on attendance or progress in another course as being inconsistent with the scheme of the UK Immigration Rules.

So far as the requirement of ‘regular attendance’ was concerned, the AIT re-affirmed earlier case law to the effect that attendance must be ‘sufficiently often, habitual or frequent in order to meet the demands of undertaking and completing the particular course’ (see WR (Student: "Regular Attendance"; "Maximum Period") Jamaica [2005] UKAIT 00170).

The AIT held that ‘regular attendance’ is essentially a question of fact and might still be established where there were some justifiable absences, for example because of illness or, perhaps, because a student had to return home because of family or personal circumstances such as the death of a close relative. They held that there is no basis on which the Home Office could be compelled to make enquiries to establish any explanation for the level of attendance before refusing the application, although such would clearly be ‘sensible practice’.

It is sensible practice for students and their legal representatives, when absences or the question of attendance could create a problem with an application, to ensure that this is addressed in the application. Representatives such as Gherson and Co. advise the applicants they represent on the evidence needed to support an application to give it the best prospects of success.