United Kingdom Asylum and Immigration Tribunal

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Cite as: [2007] UKAIT 7, [2007] UKAIT 00007

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TY (Student; "satisfactory progress"; course of study) Burma [2007] UKAIT 00007

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 13 December 2006

Date Determination notified: 16 January 2007

Before

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

Senior Immigration Judge Grubb

Between

TY	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr N K Sharma, N Sharma & Co, Solicitors

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

DETERMINATION AND REASONS

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.

The appellant is a citizen of Burma who was born on 22 May 1975. The appeal comes before us as a reconsideration of the decision of Immigration Judge Walters who dismissed her appeal against the respondent's decision taken on 26 June 2006 refusing her further leave to remain as a student under paragraph 62 with reference to paragraph 60(v) of Statement of Changes in Immigration Rules, HC 395.

The appellant entered the United Kingdom on 1 October 2001 on a student visa and was subsequently granted extensions of leave until 31 May 2006. Initially, the appellant studied and successfully completed a number of courses in General English at the West London Business College. In March 2005 she enrolled at the London College of Accountancy on a full-time course leading to completion of the Part 1 examinations of the Charter Association of Certified Accountants (ACCA). However, she sat the three required papers (1.1, 1.2 and 1.3) in June and December 2005 failing all three on both occasions. Her evidence was that she found the course difficult and, in relation to the December examinations, she suffered health problems which prevented her studying. She was advised to undertake a simpler accountancy course which if she completed it successfully would make it easier to pursue the ACCA course. Consequently, on 1 March 2006 she enrolled on a course leading to a CAT professional qualification at the London College of Accountancy. The course was for 18 months duration and divided into three sections. The first part entailed taking CAT papers 1, 2 and 3. The second part commenced on 1 September 2006 and entailed taking CAT papers 4, 5 and 6. We do not have information in respect of part 3 of the course. The appellant took CAT paper 2 on 20 July 2006 shortly before the appeal hearing. At the hearing she produced a certificate in her name from the internet headed "Provisional Results Notification for ACCA Computer Based Examinations" which indicates a pass mark of 56% in part "T2 – Information for Management Control". She also produced evidence before the immigration judge to indicate that she was taking the other two examinations for part 1 of the CAT course, one of which was scheduled for 10 August 2006 which was two days after the hearing before the immigration judge. We interpolate here that we were shown documentation suggesting that the appellant did, in fact, pass that examination (T1) also with a mark of 56%. We were told, however, that she has not taken the third examination (T3).

On the basis of the evidence before him, the immigration judge concluded that the appellant had failed to provide satisfactory progress as required by paragraph 60(v) of HC 395. He referred to the Tribunal's decision in SW and Others (Paragraph 60(v): meaning of "including") Jamaica [2006] UKAIT 00054. That case decided that where examinations were part of a course of study it had to be shown that they had all been taken and passed. Any failure would be fatal to the applicant's case under paragraph 60(v). The immigration judge set out his conclusions in paragraphs [22]-[24] of his determination as follows:

"Conclusions

22. I have taken carefully into account the oral and written submissions made by for or on behalf of the appellant; and I have also weighed carefully the extent to which the appellant's representative had sought to distinguish SW and others (2006) UKAIT 00054, by suggesting that the factual matrix in the appeal before me was entirely different, in that the appellant had successfully completed courses of study in General English before undertaking any accountancy courses.

23. I have concluded that, following the Rules and SW and Others, where examinations have been taken, satisfactory progress under paragraph 60(v) of the Rules has to be shown by evidence including evidence that the examinations have been taken and passed. Upon any analysis, whilst the appellant can demonstrate successful completion of General English courses of study between her arrival in the United Kingdom and 2005, she has failed to demonstrate evidence of satisfactory progress in her course of study including the taking and passing of any relevant examinations thereafter. The appellant failed all papers in Part 1 ACCA examinations in June, 2005; and, giving credit for her ill health, nevertheless failed all three papers again in December, 2005. Had the appellant's ill health been critical to the likely outcome of any examination sat in December, 2005, I would have expected her to have sought a postponement of it, by the production of the necessary medical evidence, both to the educational authorities and to the respondent; there is no evidence the appellant sought any postponement of the examinations. Indeed, it is the evidence of the appellant that, not withstanding ill health, her attendance record stood at some 65%. I do not consider it to be without significance that, following her failure to satisfactorily complete Part 1 of the ACCA examinations, in December 2005, and at a time when, presumably, her ill health was known, the appellant was advised to pursue a less demanding course of study. In pursuing that less demanding course of study, the appellant appears to be, according to the limited evidence available to me, attempting it paper by paper.

24. I have concluded that the appellant does not meet the requirements of paragraph 60(v) of the Rules."

The appellant sought reconsideration which was ordered by Senior Immigration Judge McKee on the basis that the immigration judge may have misdirected himself in taking into account the appellant's lack of success in the ACCA course. It was arguable that the requirement to show satisfactory progress in her "course of study" should be understood as meaning her present course of study, namely the CAT course in which she had successfully passed the one examination she has undertaken on 20 July 2006.

The immigration rules

Although the appeal raises the issue of the proper interpretation of the phrase "course of study" in paragraph 60(v) of HC 395 which deals with an extension of existing leave, it may be helpful also to set out paragraph 57 which deals with the requirements for leave to enter (emphasis has been added by us):

"Requirements for leave to enter as a student

57. 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 which is to be provided by an organisation which is included on the Department for Education and Skills' Register of Education and Training Providers, and is at either;

(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; and

(ii) is able and intends to follow either:

(a) a recognised full time degree course at a publicly funded institution of further or higher education; or

(b) a weekday full time course involving attendance at a single institution for a minimum of 15 hours organised daytime study per week of a single subject, or directly related subjects; or

(c) a full time course of study at an independent fee paying school; and

(iii) if under the age of 16 years is enrolled at an independent fee paying school on a full time course of studies which meets the requirements of the Education Act 1944; and

(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 dependants without taking employment or engaging in business or having recourse to public funds.

….

Requirements for an extension of stay as a student

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

(i) was last admitted to the UK in possession of a valid entry clearance in accordance with paragraphs 57-75M or 82-87F of these Rules, unless the applicant:

(a) was originally admitted to the UK with entry clearance in accordance with paragraphs 57-75M or 82-87F of these Rules which has since expired, but has subsequently been granted leave to remain in accordance with paragraphs 57-75M or 82-87F of these Rules; or

(b) is a non-visa national who has been accepted for a course of study at degree level or above, and who entered the UK with leave as a visitor in accordance with paragraphs 40-46F of these Rules on or before 1 July 2006; or

(c) is a non-visa national who has been accepted for a course of study at degree level or above, and who entered the UK with leave in accordance with the provisions of any category of these Rules, other than paragraphs 40-56J, 82-87, 104-121, and 135I-135N; or

(d) is a non-visa national who has been accepted for a course of study below degree level, and has valid leave in accordance with paragraphs 63-69, 69M-81, Part 2 (other than paragraphs 47-56J), or Parts 4-8 (other than paragraphs 104-121 and 135I-135N) of these Rules, which was granted on or before 22 July 2004; or

(e) is a non-visa national who has been accepted for a course of study below degree level, and has valid leave as a student to study below degree level in accordance with paragraphs 57-62 of these Rules, or has valid leave in accordance with paragraphs 69A-69L or 82-87F of these Rules, which was granted on or before 30 September 2004; and

(ii) meets the requirements for admission as a student set out in paragraph 57 (i) - (vi); and

(iii) has produced evidence of his enrolment on a course which meets the requirements of paragraph 57; and

(iv) can produce 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

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

(vi) would not, as a result of an extension of stay, spend more than 2 years on short courses below degree level (ie courses of less than 1 years duration, or longer courses broken off before completion); and

(vii) has not come to the 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."

Issues in this appeal