QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF NYANHI||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR A O'CONNOR (instructed by TREASURY SOLICITORS) appeared on behalf of the DEFENDANT
Crown Copyright ©
"You have asked for leave to enter the United Kingdom in order to study health and social care, but I am not satisfied that you are able and intend to follow a full-time course of study that meets the requirements for admission as a student. Furthermore, I am not satisfied that you intend to leave the United Kingdom on completion of your studies."
The same document communicated removal directions for removal that same day to Zimbabwe. However, such removal was suspended upon an indication of an application for judicial review and the claimant remains in this country.
"Passenger sought leave to enter the United Kingdom for a period of two years to study health and social care at BETEC Management College. Course fees of £2855 was paid for the first year with £275.00 outstanding.
The 42 year old passenger's last course of study was twenty-three (23) years ago, 1979 when he gained 3 O' Level exams - English, General English and Mathematics. Since 1979 he worked in a bakery, butchers and supermarket losing employment in 1999 and has since been buying and selling clothes. He has no permanent stall and therefore his means of finance is limited. He claims that his wife is the main source of income for the family of 5, he has no savings or property and at times depends on his brother-in-law (on his sister's side).
His brother-in-law who lives in Zimbabwe paid for passengers school fees, accommodation and airline ticket. The sponsor owns a driving school and has a family of 5 to support.
Comparing the passenger's qualifications and subsequent employment with the intended course of study, a logical pattern is not reflected. Further, given the current economic situation in Zimbabwe and the sponsor's own financial responsibilities it is highly doubtful that the passenger can genuinely afford to study in the United Kingdom. I was not altogether satisfied his intentions were as stated and therefore he was refused entry."
"The requirements to be met by a person seeking leave to enter the United Kingdom as a student are that he:
(i) has been accepted for a course of study at:
(a) a publicly funded institution of further or higher education; or
(b) a bona fide private education institution which maintains satisfactory records of enrolment and attendance; or
(c) an independent fee paying school outside the maintained sector;
(ii) is able and intends to follow...
(b) a weekday full-time course involving attendance at a single institution for a minimum of 15 hours organised daytime study period week of a single subject or directly related subjects...;
(iv) intends to leave the United Kingdom at the end of his studies; and
(v) does not intend to engage in business or to take employment, except part-time or vacation work undertaken with the consent of the Secretary of State for Employment; and
(vi) is able to meet the costs of his course and accommodation and the maintenance of himself and any dependents without taking employment or engaging in business or having recourse to public funds."
It is common ground that each of the requirements (i- vi) must be met.
"It would be quite wrong for an immigration officer to take upon himself to ascertain the exact degree of education of an applicant in order to decide [for himself] whether [the applicant] would benefit from the course."
"However, immigration officers should not normally attempt to second-guess decisions by colleges of enrolment as to the students ability to follow the course. Later on, it will become easier to assess ability, as students progress and pass or fail examinations."