COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
SENIOR IMMIGRATION JUDGE WAUMSLEY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
MRS JUSTICE BARON
| RS (PAKISTAN)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr David Manknell (instructed by Treasury Solicitors) for the Respondent
Hearing date : 23rd March 2011
Crown Copyright ©
MRS JUSTICE BARON :
To qualify for leave to remain as a Tier 4 (General) Student under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the applicant will be refused.
…(c) The applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A…
119. If the applicant is re-sitting examinations or repeating a module of a course, the applicant must not previously have re-sat the same examination or repeated the same module more than once, unless the Sponsor is a Highly Trusted Sponsor. If this requirement is not met then no points will be awarded for the Confirmation of Acceptance for Studies, unless the Sponsor is a Highly Trusted Sponsor.
120. Points will only be awarded for a Confirmation of Acceptance for Studies (even if all the above requirements are met) if the course in respect of which it is issued meets each of the following requirements:
(a) The course must meet the United Kingdom Border Agency's minimum academic requirements, as set out in sponsor guidance published by the United Kingdom Border Agency and the level of course that a Sponsor may offer will depend on whether the Sponsor is a Highly Trusted Sponsor.
(b) The course must, except in the case of a pre-sessional course, lead to an approved qualification as defined in sponsor guidance published by the United Kingdom Border Agency.
(c) Other than when the applicant is actually on a work placement, all study that forms part of the course must take place on the premises of the sponsoring educational institution.
(d) The course must meet one of the following requirements:
i. be a full time course of degree level study that leads to an approved qualification as defined in UKBA guidance;
ii. be an overseas course of degree level study that is recognised as being equivalent to a United Kingdom Higher Education course and is being provided by an overseas Higher Education Institution;
iii. be a full time course of study involving a minimum of 15 hours per week organised daytime study and, except in the case of a pre-sessional course, lead to an approved qualification, as defined in guidance published by the United Kingdom Border Agency, below bachelor degree level.
The Factual Matrix
The Grounds of Appeal
"22. RE-SITS OF EXAMINATIONS
…………Where an otherwise acceptable student has to re-sit an examination he may not need or be permitted by the college to attend further classes. In such cases leave may be granted on code 2 to cover the period of the first available re-sit plus an additional 2 months to allow time for the results to be received, provided that the college concerned confirms the situation and that there is no doubt as to the student's intention to leave the country on completion of his studies. Leave to remain (or leave to enter after a short absence abroad) to re-sit an examination without being enrolled on a full time course should be granted once only."
Mr Malik, on behalf of the Appellant, submitted that the new rules should construed in the context of that apparently more favourable regime and argued that the new provisions had to be understood in that context. He pointed to Paragraph 69E of the previous rules which specifically dealt with re-sits:
"An extension of stay to re-sit an examination may be granted for a period sufficient to enable the applicant to re-sit the examination at the first available opportunity, subject to the restriction on his freedom to take employment, provided that the Secretary of State is satisfied that the applicant meets the requirements of 69D."
Under those regulations (i) the student was expected to re-sit the examination at the first available opportunity and (ii) the student's rights to pursue employment whilst in the United Kingdom were restricted. So to that extent the previous Rules were, to my mind, less favourable.
"Requirements to enter to re-sit an examination"
The requirements to be met by a person seeking leave to enter the United Kingdom in order to re-sit an examination are that the applicant:
(i) (a) meets the requirements for admission as a student set out in paragraphs 57 (i) – (viii); or
(b) met the requirements for admission as student set out in paragraph 57 (i) – (iii) in the previous academic year and continues to meet the requirements of paragraph 57 (iv) – (vii); save, for the purpose of paragraph (i) (a) or (b) above, where leave was last granted in accordance with paragraph 57 – 62 of these Rules before the 30 November2007, the requirements paragraph 57 (v) do not apply; and
(ii) has produced written confirmation from the educational institution or independent fee paying school which he attends or attended in the previous academic year that he is required to re-sit an examination; and
(iii) can provide 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; and
(iv) had not come to end of a period of government or international scholarship agency sponsorship, or has the written consent of his official sponsor for a further period of study in the UNITED KINGDOM and satisfactory evidence that sufficient sponsorship funding is available; and
(v) has not previously been granted leave to re-sit the examination.
Rule 69D which provided
"Requirements for an extension of stay to re-sit an examination"
The requirements for an extension of stay to re-sit an examination are that the applicant:
(i) was admitted to the United Kingdom with a valid student entry clearance if he was then a visa national; and
(ii)meets the requirements set out in paragraph 69 A (i) – (v)
"Students are allowed to re-sit examinations or repeat any part of their course up to two times per individual examination or module. If the student's leave expires before he/she has finished the re-sit or repeated the appropriate studies he/she must make an application to extend his/her leave before his/her current grant of leave expires. Where the student has to do a re-sit or repeat a module of study sponsors must decide based on their knowledge of the student and their assessment of his/her ability to pass the course, whether or not it is appropriate to continue sponsoring him/her".
"It is appropriate for a Tier 4 sponsor to continue its sponsorship of a student throughout the re-sit or repeat period, where the Tier 4 sponsor requires the student's continued participation, and where the Tier 4 sponsor is confident that it will be able to meet its sponsor's duties with respect to that student during the re-sit or repeat period. Where the Tier 4 sponsor does not require the students continued participation within 60 days of the start of next academic period (with the exception of recognised institutional vacation periods) the Tier 4 should not continue to sponsor the student. Where the student has continuing leave but the Tier 4 sponsor does not require participation during this 60 day period, the Tier 4 sponsor should notify the U K Border Agency of this and advise the student to leave the United Kingdom. If the student's leave is due to expire and the Tier 4 sponsor does not require continuing participation within 60 days of the start of the next academic period the Tier 4 sponsor should not issue a visa letter or confirmation of acceptance of studies and the student should make arrangements to leave the UK. The Tier 4 sponsors may then, at a later point, issue a visa letter or confirmation of acceptance for studies which the student may use on his/her application to return to the UK.
Mr Malik submitted that this paragraph contains essentially self serving verbiage which cannot, of itself, override a proper construction of the Rules. In particular he drew attention to the 60 day time limit within the guidance which bore no relationship to any rule. I see some force in the final part of that submission but not the remainder because the guidance gives pellucid confirmation of the Rule and of the reasoning behind the new regime.
"The [Immigration] Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy".
However that does not mean that construction should be strained beyond the reasonable boundaries for the use of language and meaning.
"…it is relevant to recall that the admission of foreign nationals to study here is not an act of grace. Not only does it help to maintain English as the world's principal language of commerce, law and science; it furnishes a source of revenue… We therefore find it unsurprising that the legislation and rules, correctly construed, do not place arbitrary or unnecessary restrictions on what foreign students can study here."
Of course, I accept that foreign students are welcomed to the United Kingdom but the Rules, prima facie, require them (and always have required them) to be bona fide students who need to be within the United Kingdom to enable them to work at an accredited educational establishment sited within the jurisdiction.
"If the applicant is re-sitting examinations or repeating a module of a course, the applicant must not previously have re-sat the same examination or repeated the same module more than once…"
It is asserted that the specific inclusion of the word "or" means that it is not necessary for the student to undertake both. Accordingly, it is submitted, SIJ Waumsley's interpretation of paragraph 120(d)(iii) cannot be correct because it effectively abolishes the critical distinction between those re-sitting examinations and those repeating a module of a course given that the effect of his ruling is that students taking re-sits are obliged to repeat modules thus defeating the purpose of the word "or" within Rule 119.
"(ii)has been accepted on a course of study which is to be provided by institution which is:
(i) the holder of a Sponsor Licence for Tier 4 of the Points based system
(ii) accredited by a UKBA approved accreditation body
(iii) intends to leave the UK at the end of his visit as stated by him
(iv ) does not intend to take employment in the UK: and
(v) does not intend to engage in business, to produce goods and services within the UK, including the selling of goods and services to the public; and….
(vii) will maintain and accommodate himself….. without recourse to public funds
(viii) can meet the cost of the return or outward journey….
"If the student is not engaged in a suitably full-time course of study prior to his re-sits, then he does not need to remain in the UK in order to re-take his exams. Such a student (including the Appellant) should return to his home country before the expiry of his leave, but may then apply from that country for a Student Visitor visa under Rule 56K in order to return to take his re-sits. A Student Visitor visa has less onerous application criteria, but places stronger restrictions on the student (no employment, no work experience, no dependants, the need to apply from overseas, no switching and a mandatory return overseas after their leave expires). Such a visa is a perfectly reasonable option for a student who does not need to continue studying in the UK on a full-time basis, but simply needs to re-take his exams, as here, several months or a year after he has completed his course".
LORD JUSTICE PATTEN :
LORD JUSTICE CARNWATH :