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Cite as: [2007] UKAIT 5, [2007] UKAIT 00005

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KL (Student: IDI "warning" about progress) India [2007] UKAIT 00005

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 13 December 2006

Date Determination notified: 12 January 2007

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal

Senior Immigration Judge Grubb

Between

KL	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: No appearance

For the Respondent: Mr P Deller, Home Office Presenting Officer

DETERMINATION AND REASONS

A person seeking an extension of stay as a student must satisfy all the requirements of paragraph 60 of HC 395, including paragraph 60(v) by showing 'satisfactory progress' in his course of study. The obligation in IDI paragraph 3.16.3 that the Secretary of State should warn a student when granting an extension of leave where he has doubts about her satisfactory progress does not detract from the need to satisfy the requirement in paragraph 60(v). Thus, the obligation to warn only applies where the Secretary of State resolves his doubts in the student's favour and so grants leave. The purpose of the warning is to alert the student to potential difficulties should a future application for leave be made. It follows that a student who does not meet the 'satisfactory progress' requirement in paragraph 60(v) is not entitled to leave or a warning.

The appellant is a citizen of India who was born on 8 December 1981. She appeals against a decision of the respondent taken on 17 May 2006 refusing to vary her leave to remain in the United Kingdom as a student under paragraph 62 with reference to paragraph 60(v) of Statement of Changes in Immigration Rules, HC 395. Her appeal against that decision was dismissed by Immigration Judge Jhirad in a determination notified on 25 August 2006. The appellant sought and was granted reconsideration of that decision by Senior Immigration Judge Allen on 8 September 2006. As a result of that, the matter now comes before us.

The appellant was granted leave to enter the United Kingdom as a student on 15 January 2003 for a period of two years in order to undertake an accountancy course at the College of Central London. Shortly after she arrived, the appellant switched colleges to the Financial Training Company (FTC) in London where she again followed accountancy courses and examinations under the auspices of the Chartered Institute of Management Accountancy (CIMA). On application, she was granted further leave to remain as a student until 30 April 2006. On 4 April 2006 she applied for an extension of that leave but was refused on 17 May 2006.

The reasons for the decision are set out in the Reasons for Refusal Letter dated 17 May 2006 as follows:

"On 21 April 2006 you applied for leave to remain in the United Kingdom as a student.

An official has considered your application on behalf of the Secretary of State.

In view of the fact that you failed examinations in May 2004, November 2004 and November 2005 and have only passed 3 subjects in 3 years it has been decided that you have not produced satisfactory evidence that you have made satisfactory progress in your course of study, including the taking and passing of any relevant examinations.

Therefore, you do not satisfy the requirements of the I R for this category and it has been decided to refuse your application for leave to remain as a student under the published immigration rules paragraph 62 with reference to 60(v) of HC 393 (as amended).

In making the decision to refuse your application, consideration has been given to the following:

1. On 15 January 2003 you were granted leave to enter the United Kingdom as a student until 30 January 2005.

2. On 08 March 2005 you were granted further leave to remain as a student until 30 April 2006.

3. On 21 April 2006 you applied for further leave to remain in the United Kingdom as a student.

4. On 21 April 2006 you produced examination results for November 2003, May 2004, November 2004, May 2005 and November 2005 showing you had passed 3 examinations out of a total of 11 taken during that time."

In dismissing the appellant's appeal, Immigration Judge Jhirad in her determination set out a summary of the appellant's progress as follows:

"9. The summary of this is that in November 2003 she sat two papers and failed one. In May 2004 she sat two papers and failed both. In November 2004 she sat two papers and again failed both. In May 2005 she sat two papers and passed both. In November 2005 she sat four papers and failed all. In May 2006 she again sat four papers, passed one and failed three – these being the papers she had taken and failed previously.

10. The enrolment letter from FTC dated 7 March 2005 stated that attendance is compulsory each day and involves 18 to 24 hours of formal tuition each week. In addition, students are required to attend tutorial sessions and are given work to be completed on their own. It goes on to say: students must attend a minimum of three subjects each term to satisfy visa requirements. The examinations are modular and are held every six months. That does not indicate to me, as the appellant has stated in her statement that whether one takes examinations or not is a matter of discretion for the student. I find from the FTC letter that there are relevant examinations to be taken. Furthermore, there is nothing in the FTC letter to suggest that the number of examinations a student sits per term or per annum is a matter for them."

In the light of this, the Immigration Judge concluded at paragraph [11] of her determination:

"From the evidence before me, I do not find the appellant has fulfilled the requirements of paragraph 60(v) of HC 395, as amended. She has not shown evidence of satisfactory progress in the course of study including the taking and passing of any relevant examinations."

In addition, it was argued before the Immigration Judge that the respondent's refusal was not in accordance with an IDI because she had not been warned about her unsatisfactory progress prior to the refusal. The Immigration Judge's reasons are set out at paragraph [12] of her determination as follows:

"The appellant produced credible evidence of satisfactory attendance. Mr Bhatoo submitted that the respondent failed to give the appellant a warning under its IDI before refusing the application. Paragraph 3.16.3 of the IDI states: As a rule. Information is provided on student's attendance and progress on each application for an extension of stay. The student should provide evidence of all examinations he has attempted and the results as required by the application form. Where there are doubts as to progress, but attendance is satisfactory and all other requirements are met, leave may be granted but with a warning that failure to provide satisfactory progress could result in a refusal to grant a further extension of stay in that capacity. I find that the giving of a warning is a matter of the exercise of a discretion on the part of the respondent's caseworker and is not mandatory."

Reconsideration was ordered on the sole ground that the Secretary of State may have acted unlawfully by departing from his published policy before refusing to grant the appellant further leave to remain.

At the hearing before us, neither the appellant nor her representatives, AKL Solicitors appeared. It is clear from the court file that notice of the reconsideration hearing was sent to the appellant's representatives and the appellant herself in a notice dated 23 November 2006. No satisfactory explanation for their absence has been given and so we proceeded to hear the appeal in the absence of the appellant and her representative under rule 19(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005 No 230).

The relevant Immigration Rule is paragraph 60 of HC 395 which provides as follows:

"60. The requirements for an extension of stay as a student are that the applicant:

...

(v) can show evidence of satisfactory progress in his course of study including the taking and passing of any relevant examinations; ...."

The grounds of review do not assert that the Immigration Judge erred in his application of paragraph 60. It is clear to us that she did not err. In SW and Others (paragraph 60(v): meaning of "including") Jamaica [2006] UKAIT 00054, the Tribunal concluded that the meaning of paragraph 60(v) is as follows:

"7. The phraseology of the rule is slightly peculiar. Whatever may be its precise effect in the course of an appeal, on the face it does not require the appellant to establish that she has made satisfactory progress by producing evidence: it requires her to produce evidence of certain matters. The evidence is required to be of "satisfactory progress ... including the taking and passing of any relevant examinations". It does not appear to us that it is possible to read that phrase as meaning that evidence of passing any relevant examinations is an optional extra. The clear meaning of the words is that whatever other evidence is also provided, the applicant is required to show that she has both taken and passed any "relevant examinations"."

Thus, the appellant was required to show that she had taken all relevant examinations in her course of study and had passed them. As is clear from paragraph [9] of the Immigration Judge's determination which we set out earlier, in the period November 2003 until May 2006, the appellant sat sixteen examinations and only passed four of them. It has not been suggested that these examinations were not part of her "course of study" and the Immigration Judge's conclusion that she has failed to meet the requirement in paragraph 60(v) is unassailable.

We turn now to consider the relevance of the IDI relied upon. It is contained in Chapter 3, Section 3 – "Leave to Remain for Students (General)". Paragraph 3.16.3 is in the following terms:

"3.16.3 Unsuccessful Students

As a rule, information is provided on student's attendance and progress on each application for an extension of stay. The student should provide evidence of all examinations he has attempted and the results as required by the application form. Where there are doubts as to progress but attendance is satisfactory and all other requirements are met, leave may be granted but with a warning that failure to produce evidence of satisfactory progress could result in the refusal to grant a further extension of stay in that capacity."

It is this that is relied upon by the appellant. It is said on her behalf that the Secretary of State failed to apply this policy because he did not warn her before refusing to grant an extension of her leave. In the grounds, it is said on behalf of the appellant that the Immigration Judge should have allowed her appeal on that basis.

Mr Deller, who represented the respondent, submitted that the policy only applied on its face to situations where the Secretary of State considers that "there are doubts as to progress". He submitted that in the case of the appellant the Secretary of State had no doubts as to her lack of progress and therefore the policy did not apply. He submitted that there was no evidence to suggest that the previous grant of leave on 8 March 2005 was one which fell within the terms of the policy giving rise to, as he put it, a warnable issue.

The correct effect of paragraph 3.16.3 of the IDI is not immediately obvious. It might be said to contemplate a situation where the Secretary of State is not satisfied about the 'satisfactory progress' requirement in paragraph 60(v) of the Immigration Rules but nevertheless is prepared to grant an extension of stay with a warning to the applicant that a further grant of leave may be refused where there is a "failure to produce evidence of satisfactory progress" next time around. Put in this way, it seems to us that the Secretary of State would, if he were to grant leave to remain in accordance with this paragraph, be exercising his discretion outside the Immigration Rules since he would not be satisfied of a specific requirement of them, namely paragraph 60(v).

There is, however, an alternative understanding of how paragraph 3.16.3 operates. It is as follows. When deciding upon an application, the Secretary of State may, when considering the evidence, have doubts about the satisfactory progress of the appellant. Nevertheless, having considered the evidence, he may conclude on balance that satisfactory progress is shown. In the circumstances, he is satisfied that the requirement in paragraph 60(v) is met and grants leave under the Rules. However, because of the doubts raised in the process of his deliberation he warns or advises the appellant of those doubts to assist the applicant should any future application for an extension of leave be contemplated.

The obvious attraction of this interpretation is that the Secretary of State always makes a decision under the Rules. He decides to grant an extension of leave because the Rules are satisfied either patently or after due deliberation resolving any doubts in favour of the appellant. Alternatively, the Secretary of State refuses to grant the extension of leave because he is not satisfied on the evidence that satisfactory progress has been demonstrated.

We consider that this latter explanation of how paragraph 3.16.3 operates to be preferable. There is no reason to believe that the IDI is concerned with the exercise of discretion outside the Rules, i.e. a departure from them. Rather, the IDI is better understood as indicating how – in one particular instance where there is initial doubt about the strength of the applicant's case – he will act having decided that the Immigration Rules are in fact met. The IDI is not, in our judgment, dealing with the situation where the appellant fails, whether obviously or after some contemplation, on the evidence to met the 'satisfactory progress' requirement.

In our view, therefore, Mr Deller's submission is a complete answer to the appellant's argument in this appeal. The IDI only applies in situations where the Secretary of State has (a) doubts about the appellant's progress and (b) resolves those doubts in the applicant's favour. Here, given the appellant's poor success record in examinations, it is clear that the Secretary of State had no doubts and concluded that her progress was not satisfactory and as a result he refused to extend her leave. The IDI simply does not apply in such a case where the applicant fails under the Rules. Therefore, the Immigration Judge was correct to dismiss the appeal.

Decision

For the foregoing reasons we do not consider that the Immigration Judge materially erred in law in dismissing the appellant's appeal. The Secretary of State's decision was in accordance with the Immigration Rules and in accordance with the law. The decision to dismiss the appeal stands.

A GRUBB

SENIOR IMMIGRATION JUDGE

Date: