England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT Nos (1): IA/08444/2006; (2): IA/00458/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		1st February 2008

Lord Justice Buxton:

1. These are two applications for permission to appeal from determinations of the Asylum and Immigration Tribunal. Both concern persons who have been granted permission to enter this country as students and who seek to extend that stay as a student beyond the period of the original permission.
2. The centre point of both cases as at present presented (and I am careful to use that formulation) is Rule 60(v) of the Immigration Rules, which requires on an extension such as these are:

"…evidence of satisfactory progress in his course of study including the taking and passing of any relevant examinations;"

The Secretary of State's view is that in neither case has that requirement been   fulfilled and that is the view that was adopted by the Asylum and Immigration Tribunal in the decisions of which complaint is made.

3. Now I am careful to say that that is, or appeared very clearly to me and to my brother who decided the matter on paper, to be the centre point of this case. But Mr Padfield, who has helpfully appeared before me this morning having recently come into the case, tells me that there are other parts of the Rules which are in issue, and also that there will be a question raised as to legitimate expectation: the Home Office, he says, having been informed about the change of course of which it makes complaint some time ago and done nothing about it. There may be some difficulty about taking that latter point. It is not apparent to me that it was ever taken before the court below but that would be a matter to which Mr Padfield will give attention in due course.
4. The basic authority upon which the Asylum and Immigration Tribunal proceeded was the decision of that tribunal in the case of TY (Student; "satisfactory progress"; course of study) (Burma) [2007] UKAIT 7, and in particular where the tribunal said:

"A person seeking an extension of leave as a student must show under paragraph 60(v) of HC 395 satisfactory progress in the 'course of study' for which he was last granted leave to enter or remain or, if appropriate, to which a transfer was subsequently approved by the Secretary of State. He is not entitled to show satisfactory progress by reference to a different course of study which he has undertaken without the Secretary of State's knowledge."

It is that point and the correctness of that view that is in issue in these matters.

5. To mention very briefly the facts of the two cases. Mr Z has been here for a substantial period of time. He originally enrolled on a Bachelor of Engineering course in communications and radio engineering, failed his exams in that course, then at the beginning of the 2003/2004 academic year changed his course to a Bachelor of Engineering in telecom and engineering. His present leave was obtained on 23 October 2003, presumably in the context of that course. He did not succeed in that course and failed a series of exams, including resits, in the course of the first two years of it. He then took up a different course, engineering with business management -- all of these, I should add, being at Kings College, London -- which he started on 20 September 2005; and he completed the first year of that successfully and made the present application for renewed leave on 30 September 2006 in the context of that latest course. It was his failure, as it in effect was, on the predecessor to that course that caused the Secretary of State to refuse him permission.
6. As for Mr O, the other applicant, he is in possession of extensions of stay up to 3 September 2005, having originally entered this country in April 2003 as a student. In September 2004 he commenced an HND course in computing at the University of the Thames Valley. As his skeleton says, he soon lost interest in that course and in September 2005 he commenced study for a BSc in telecommunications, a different subject, at Oxford Brookes University, a different educational establishment. He expects to complete that course in May 2009. At the moment he is progressing satisfactorily on it, or so his evidence says. Here again, it was the change of not only the course but also of institutions that caused the Secretary of State, upheld by the Asylum and Immigration Tribunal, to refuse permission.
7. Permission to appeal to this court was refused on paper in both cases by Moses LJ. He said this:

"The course of study in respect of which leave to enter was given was not in substance the same course of study in respect of which the applicant now asserts he shows progress. The rules do not permit course hopping from the course in respect of which leave was given to another which is, in substance, different. A student is not permitted to change to a course in respect of which he is not being given leave and then assert progress or success in that course. The rules clearly focus on a particular course of study…"

8. As I make clear to Mr Padfield, that, with the greatest of respect, is my view also. At the moment, it would seem to me that, at least so far as Rule 60(v) is concerned, which was the only Rule that was perceived by Moses LJ and originally by myself to be in issue, that view is correct. Accordingly, left to myself, I would not be minded to grant permission. However, the situation so far as the general jurisprudence in this area is that there are a number of cases involving extension of student stay for which permission to appeal has been granted, which have been linked together and are listed for hearing in this court on 7 and 9 April of this year. Those cases range over a number of issues but they certainly put in issue the correct interpretation of Rule 60(v) and whether the decision of the Asylum and Immigration Tribunal in TY was in fact correct. It would clearly be unsatisfactory if I were to refuse permission in these cases, when it may turn out that the view that I have provisionally formed is completely wrong. What I am minded to do therefore is to grant permission in both of these cases and direct that they be linked with and heard at the same time as the series of cases that are due for hearing on 7 to 9 April this year. No doubt in due course directions will be given as to how the various issues are to be handled before this court.
9. I would say two other things. As I indicated to Mr Padfield, there is a good deal in the submissions at the moment, no doubt at that stage perfectly properly, which become otiose and irrelevant once permission has been granted to appeal from TY, and the skeleton arguments need to be reviewed from that point of view and generally. Also if there are other issues that it is sought to add, and I say nothing for the moment as to whether it is legitimate to add them, but if there are other issues that it is sought to add, such as those that Mr Padfield mentioned to me this morning, then those must be set out in the revised skeleton and if needs be attention must be given to the present state of the grounds. I emphasise that. It will be open no doubt to the Secretary of State to complain if matters are being raised that have not been ventilated before the court below, but it is much easier if those points are dealt with by the court that hears the actual appeal and are not sought to be sorted out in advance. I say that in particular because the hearings are clearly going to range fairly widely over this aspect of the Immigration Rules as a whole, and the court may wish to be fully informed about every matter.
10. The other point I would just mention for a matter of record is that I think that when permission was granted for these various appeals the court did not have the advantage of the guidance now given to it as to its very restricted role in hearing appeals from the Asylum and Immigration Tribunal by the House of Lords in the case of SSHD v AH (Sudan) and others [2007] UKHL 00049, in particular at paragraph 30. That will no doubt be something that will be ventilated in the actual appeals.
11. I would therefore order as indicated, grant permission, allow 28 days maximum -- that must be a maximum please -- for the revision of the grounds and the skeletons, all of these cases to be linked with the cases due for hearing on 7 and 9 April.

Order: Applications granted