England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/03/2009

Lord Carlile of Berriew Q.C.:

1. The Claimant, Ms De Oliveira, is a Brazilian national. She wishes to continue computing studies commenced in the United Kingdom. She has been told that she cannot do so, because the study she has chosen does not satisfy the Immigration Rules.
2. There is no dispute that the Claimant, and the institute where she studies, are acting in good faith.
3. The Claimant arrived in the UK in August 2001. Subsequently she was granted leave to remain as a student. On the 24^th April 2007 she applied to extend her leave to remain as a student. On the 30^th May 2007 the Secretary of State for the Home Department [SSHD] refused her an extension of leave for the purpose of study. Permission to apply for Judicial Review was granted by Sullivan J (as he then was) at an oral hearing on the 1^st May 2008, following earlier refusal through the written procedure.
4. There is a single issue in the case. It is whether her studies fall within the applicable version of Paragraph 60 and Paragraph 6 of the Immigration Rules [the Rules have been changed since this case arose].
5. Paragraph 60(i)(b) as relevant reads:

"The requirements for an extension of stay as a student are that the applicant;

(i) …

(b) is a non-visa national who has been accepted for a course of study at degree level or above."

Paragraph 6 provides:

"degree level study [is] a course which leads to a recognised United Kingdom degree at bachelor's level or above or an equivalent qualification at level 6 or above of the revised National Qualifications Network".

6. The study for which the Claimant enrolled forms part of the professional examinations of the British Computer Society [BCS]. The BCS professional examinations have been accredited by the Qualifications and Curriculum Authority [QCA]. There are 3 separate QCA accreditations for 3 years of study. The lowest level is BCS Level 4, providing a Certificate in information technology. The second level is the BCS Level 5: this provides a Diploma in IT. The third level is BCS Level 6: this provides a Professional Graduate Diploma in IT. They do not have to be taken in strict upward order, though logic would suggest an upward progression. In its literature the BCS describes level 4 as "the academic equivalent to Year 1 of a UK university honours degree"; level 5 as equivalent to university Year 2; and level 6 as equivalent to Year 3. Entry into levels 5 and 6 respectively "assumes knowledge of [the previous year[s] or exemption". It is not an absolute requirement to have passed the examinations and assessments of the previous years.
7. The provider of the study for the Claimant is the London Institute of Technology and English [known as LITE]. LITE is fully recognised as an educational establishment providing a range of courses and qualifications, including the qualifications given by the BCS.
8. In summary, in their excellent skeleton arguments and concise oral advocacy Counsel submitted as follows.
9. For the Claimant, Mr Fripp argued that the Immigration Rules are not a statute to be read restrictively or pedantically, but rather are a statement of policy to be read sensibly. Although the 3 levels could be taken separately and (theoretically) in any order, the sensible construction is that the Claimant has undertaken "a course", namely 3 years of progressive study, which "leads to" a level 6 qualification. He argued that it would be unreasonable and unrealistic to argue the contrary.
10. For the Defendant SSHD, Mr Whale argued that Paragraph 60(i)(b) of the Rules makes clear that the "course" must be a degree course as such, i.e. at least level 6, from beginning to end. Paragraph 6 must be read in that light. This Claimant had set about 3 separate courses, not "a course". None has formal entry requirements. All lead to separate qualifications. Only one of them is at level 6, therefore the Claimant's application did not fall within the Rules.
11. I was referred to authorities on two issues. The first concerned the way in which the Immigration Rules are to be interpreted. As it turned out, there was no real dispute about this point. Consistent with earlier authority, in AM (Ethiopia) v Entry Clearance Officer [2008] EWCA Civ 1082, the Court of Appeal adopted the statement by Buxton LJ in an earlier Court of Appeal case Odelola [2008] EWCA Civ 308 as follows:

"These rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument. They must be construed sensibly according to the natural meaning of the language that is employed. The rules give guidance to the various officers concerned and contain statements of general policy regarding the operation of the relevant immigration legislation."

12. The second issue upon which I was referred to authority concerned what is "degree level" study. Part of that authority was the Immigration and Asylum Tribunal decision of MG v SSHD [2007] UKAIT 00067, a persuasive rather than binding precedent. There a Higher National Certificate [HNC] course, at level 5, was held not to amount to or be part of a course of study at degree level, through the presence part way through the proposed combined course of an intervening entry requirement to an entirely separate London University degree course in a related subject. I observed that in the judgment in that case, reference was made to TY (Student; "satisfactory progress"; course of study) Burma v SSHD [2007] UKAIT 00007 , in which, albeit obiter, the Tribunal said:

"A 'course of study' is the sum total of the parts (courses) which coherently add together and lead to the educational outcome sought."

13. In my judgment, there is no hardened principle to be derived from the authorities as to what falls within the Rules as a course admissible within the Rules. In most cases, this included, the decision will be founded on an assessment of the facts within a sensible reading of the Rules.
14. In my judgment, the present Claimant Ms De Oliveira has embarked on 3 sequential and related modules, in the correct sequence, and with the same provider (the BCS) at the same institution (LITE). Each year of study is plainly intended (though not bound) to succeed the previous year. If she completes the 3 modules, just like a conventional university student, she will achieve a degree level (level 6) qualification. If she does not make satisfactory progress, or out of character begins to act with bad faith in relation to immigration laws, the Defendant can take other action against her.
15. In my judgment the sensible and reasonable conclusion on the facts of this case is that the Claimant has embarked on a course of study leading to a level 6 qualification; and that the contrary view taken by the SSHD was wrong. That is the question which, by agreement, I was asked to determine.
16. Therefore, as requested, I quash the decision of the Defendant, and Order the reconsideration by the SSHD of her decision.