United Kingdom Asylum and Immigration Tribunal

JJ and SS (Student; regular attendance; which course?) Gambia [2007] UKAIT 00050

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 11 May 2007

Date Determination notified: 24 May 2007

Before
Mr Justice Hodge, President Senior Immigration Judge Grubb Immigration Judge JFW Phillips
Between

JJ and SS	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellants: Mr C Jowett instructed by Lawrence Lupin, solicitors For the Respondent: Mr C Hammonds, Home Office Presenting Officer
DETERMINATION AND REASONS

(1) A person seeking an extension of leave as a student must show under paragraph 60(iv) of HC 395 satisfactory evidence of regular attendance on a course for which he was last granted leave to enter or remain or, if appropriate, for which permission to transfer was subsequently given by the Secretary of State and which he has already begun or, alternatively where that is not possible, that he has already completed. He is not entitled to establish regular attendance by reference to a different course which he has undertaken without the Secretary of State's knowledge; (2) "regular attendance" may still be established despite some justifiable absences, for example on account of illness or, perhaps, because a student has to return home because of family or personal circumstances such as the death of a close relative.

1. The first and second appellants are citizens of the Gambia who were born on 4 February 1971 and 15 July 1973 respectively. They are married. On 24 April 2006, the respondent refused to vary the first appellant's leave to remain as a student under paragraph 62 (with reference to paragraph 60) of Statement of Changes of Immigration Rules, HC 395. On that same date, the respondent also refused the second appellant an extension of her leave to remain as the spouse of a student under paragraph 78 (with reference to paragraph 76) of HC 395. In a determination promulgated on 13 June 2006, Immigration Judge Morris dismissed both appellants' appeals. Orders for reconsideration were made on 26 June 2006 by Senior Immigration Judge Southern. As a result, the matter comes before us.
2. The first appellant's immigration history, so far as relevant, is as follows. He arrived in the United Kingdom on 14 January 2003 with a valid entry clearance as a student. His leave as a student was extended on a number of occasions finally being extended on 4 May 2005 until 31 January 2006. In November 2004, the first appellant successfully completed a Chartered Management Institute Management Diploma Level 5 NQF at the CEED (Charity) Ltd Training Institute ('CEED') in Bristol. Thereafter, the first appellant enrolled on an IT Training Level II course on the European Computer Driving Licence ('ECDL'). The course commenced on 3 February 2005 and was due to finish on 4 November 2005. However, the appellant decided that the course was not suitable for him as it was not structured as he had hoped, involving self-learning rather than being taught, and he left the course in July 2005 having completed four (but passing only three) of the seven modules. He decided to undertake an Association of Chartered Certified Accountants (ACCA) course at Bristol College of Accountancy which he enrolled upon in September 2005 but which did not commence until the end of January 2006.
3. On 17 January 2006, he applied for an extension of his leave to undertake the ACCA course which was refused and it is that refusal which is the subject of this appeal. The Respondent's reasons are set out in the Notice of Decision dated 24 April 2006:

"The Secretary of State is not satisfied that you can produce satisfactory evidence of regular attendance during a previous course of study.

Furthermore, the Secretary of State is not satisfied that you can show evidence of satisfactory progress in your previous course of study, including the taking and passing of any relevant examinations."

4. The Respondent amplified these reasons in the Reasons for Refusal Letter also dated 24 April 2006:

"In view of the fact that you withdrew from your previous study at the CEED Training Institute in July 2005 the Secretary of State is not satisfied that you can produce satisfactory evidence of regular attendance during a course for which you have been enrolled in the past.

Furthermore, in view of your success in only three from seven modules of that course, the Secretary of State is not satisfied that you can show evidence of satisfactory progress in your course of study."

5. On appeal, the Immigration Judge accepted that the first appellant was a dedicated and capable student as evidenced by his previous studies and what was said about him on his current ACCA course which he had already begun. She also fully accepted that the first appellant had not completed the ECDL course for good reasons. Nevertheless, she concluded that, as a consequence, he could not meet the requirements on 'attendance' and 'progress' in paragraphs 60(iv) and (v) respectively of the Immigration Rules. At paragraph 15(iv) of her determination, she said this:

"As regards paragraph 60, the fact that the First Appellant withdrew from the EDCL (sic) course, however, well-intentioned, means that he cannot show satisfactory evidence of regular attendance during any course which he has already begun. The requirements of the Rule are that he not only begins a course but also that he also completes it. The same Rules also require that he should show satisfactory progress in his course, meaning the course for which he obtained leave to remain as a student, including the taking and passing of any relevant examinations. Whilst a view may be taken from the consideration of the documentation supplied by the Educational Establishments which the First Appellant has attended that he is more than capable of making satisfactory progress and passing the necessary examinations, the fact remains that he did not do so in the case of his EDCL (sic) course…"

6. As a result, the Immigration Judge dismissed the first appellant's appeal and that of the second appellant which necessarily failed as it was entirely dependent upon the first appellant establishing his entitlement under the Immigration Rules.
7. The applicable Immigration Rules are paragraphs 60 and 62 of HC 395 which, so far as relevant, are as follows:

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

(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; …"

….

62. An extension of stay as a student is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 60 is met."

8. We do not set out paragraph 76 of HC 395 which provides for the extension of leave of a spouse of a student. One of the requirements is that the applicant is married to someone who has leave as a student (para 76(i)). It is not a matter of dispute that the second appellant's appeal falls to be decided in line with that of the first appellant, her husband.
9. On behalf of the appellant, Mr Jowett in his skeleton argument and oral submissions challenged the Immigration Judge's approach in a number of ways. Essentially, he submitted that the Immigration Judge had been wrong to look exclusively at the appellant's 'attendance' and 'progress' on the ECDL course which he did not complete and, at least in relation to the 'attendance' issue, there was a discretion to condone non-attendance.
10. We first deal with the issue of "satisfactory progress" under para 60(v). Mr Jowett submitted that the first appellant had shown satisfactory progress in the ECDL course: it was the course itself rather than his progress on it which was unsatisfactory. It was accepted by the Immigration Judge that the first appellant was a successful and capable student, it could not be, Mr Jowett submitted, that the rule excluded someone who was personally making satisfactory progress but where the course was poorly provided and, as a result, he undertook a more suitable course.
11. We are unable to accept Mr Jowett's submission. First, paragraph 60(v) requires the appellant to show "satisfactory progress" in the course of study for which he was last given leave or permitted to undertake by the Secretary of State. That is established by the Tribunal's decision in TY (Student; "satisfactory progress"; course of study) Burma [2007] UKAIT 00007. At paragraph [19] of its determination, the Tribunal said this:

"19. It seems to us, taking that as an underlying feature of the student rules read together, "his course of study" in paragraph 60(v) also focuses on the "course of study" for which leave to enter or remain was last granted. We see nothing unfair or surprising in requiring the applicant to show 'satisfactory progress' in that "course of study" rather than any other. Why should the individual's progress be assessed by reference to any other "course of study" when further leave is requested? It is the one for which leave was most recently granted or, if appropriate, for which a transfer was subsequently approved by the Secretary of State. Any previous course(s) of study will have been taken into account in earlier decision(s) to extend the individual's leave. It is the course of study which the individual either wishes to continue or, at least in leave terms, is the most immediate, against which it is most appropriate to assess progress. Indeed, we do not consider there to be any justification for an individual to obtain leave for a course of study and then switch to a less difficult one because it proves too difficult but claim, as is proposed in this case, 'satisfactory progress' in the lesser course. Usually such an individual will have shown, in reality, that the leave granted to undertake the more difficult course was in retrospect mistaken. "

12. We agree. The effect in this appeal is that the appellant must show "satisfactory progress" in the ECDL course since, as was accepted by Mr Jowett before us, that was the course for which he was last granted leave on 4 May 2005. He had, of course, commenced that course on 5 February 2005 but was still studying it until he stopped in July 2005. We are not aware that subsequently he has ever been given permission by the Secretary of State to follow any other course of study.
13. Can he show "satisfactory progress" in the ECDL course? It is accepted that he only completed four out of the required seven modules (passing only three) before abandoning the ECDL course. In SW and Others (Paragraph 60 (v): meaning of "including") Jamaica [2006] UKAIT 00054, the Tribunal held that an individual must take and pass any relevant examinations in order to satisfy the requirement in para 60(v). The relevant course of study in this case entailed seven modules and examinations in order to complete it. The course finished in November 2005 and the appellant had only taken four (and passed only three) of those modules. It seems to us that, following SW, the first appellant cannot show that he has taken and passed the relevant examinations for the course. The fact that he subjectively found the course unsatisfactory is neither here nor there. In simple language, he failed to progress as required in the structure of that course. The Immigration Judge committed no error of law in her approach to, and application of, para 60(v) to the first appellant.
14. We turn now to consider para 60(iv). The language of para 60(iv) is, we accept, different from that in para 60(v). On the face of it, para 60(iv) does not require proof of "satisfactory attendance" rather it requires "satisfactory proof of regular attendance". However, as the Tribunal noted in WR (Student: "Regular Attendance"; "Maximum Period") Jamaica [2005] UKAIT 00170:

"[i]n substance these two requirements are looking for satisfactory attendance and satisfactory progress respectively." (at [20])

Thus, there must be"attendance that is sufficiently often, habitual or frequent in order to meet the demands of undertaking and completing the particular course." (at [20])

15. Paragraph 60(iv) also contemplates that regular attendance being either "during any course which has already been begun" or "any other course for which he has been enrolled". Mr Jowett submitted that as a consequence the Immigration Judge was entitled to look at the ACCA course on which the first appellant was now enrolled and also at the management course that he completed in November 2004. Although the former was post-decision, it was admissible by virtue of s. 85(4) of the Nationality, Immigration and Asylum Act 2002. There was no doubt, he submitted, that the first appellant's attendance on both those courses met the requirement in paragraph 60(iv).
16. On the face of it, the wording of para 60(iv) suggests that an individual has a choice: he may rely upon his current course (if any) which he has begun or any other completed course in the past. On behalf of the respondent, Mr Hammonds submitted that this interpretation was to be avoided and the focus should be, as under para 60(v) in relation to 'progress', on the course for which the appellant was last granted leave or subsequent permission by the Secretary of State to undertake.
17. We agree. The reasoning of the Tribunal in para [19] of the Tribunal's decision in TY, which we set out above, has equal force in respect of the attendance requirement in para 60(iv). An individual's attendance on courses undertaken before his existing period of leave will have been taken into account in reaching earlier decisions to extend his leave. What is relevant to the current decision whether to extend leave is the nature of the individual's attendance on courses undertaken during his current period of leave for which leave was granted or subsequent permission to transfer was given by the Secretary of State. There is no rationality in allowing an appellant to trade on his attendance record on earlier courses despite the fact that his attendance record on any course during his current period of leave is poor and unacceptable. An interpretation which avoids this nonsensicality is preferable despite the apparently flexible language used in para 60(iv). Thus, para 60(iv) limits consideration to the course that the appellant was last granted leave to undertake or, if appropriate, for which permission to transfer was subsequently given by the Secretary of State. That course may be one that the individual has already begun or, alternatively where that is not possible, that he has already completed.
18. We are conscious in reaching this view on para 60(iv) that the course relied upon by the appellant in WR to satisfy para 60(iv) was not one for which it would seem that she had leave or permission to undertake. In WR, the point raised in this appeal was not taken before the Tribunal. The principal issue in WR was the meaning of "regular attendance" in para 60(iv). The Tribunal's decision cannot be taken sub silentio as authority for the meaning of para 60(iv) contended for by Mr Jowett which was not raised in WR and so not considered by the Tribunal.
19. On the facts of this appeal, the course for which the appellant was last given leave or permission to transfer to was the ECDL course. Section 85(4) does not assist the appellant. The "substance" of the decision relates to "regular attendance" on that course. Post-decision facts relating to other courses, such as the ACCA course, subsequently undertaken by the appellant are simply not relevant and s. 85(4) cannot make them so (see EA (Section 85 (4) explained) Nigeria [2007] UKAIT 00013). Consequently, the Immigration Judge was correct to consider only the ECDL course.
20. As regards the ECDL course, Mr Jowett submitted that the Immigration Judge had a discretion, in effect, to condone non-attendance for which, as in this case, there was good reason namely that the course itself was unsatisfactory from the appellant's point of view. He relied upon the (then) relevant Home Office IDI of 15 March 2006 at para 3.15.1:

"A student must attend every class or session he is required to attend by his educational establishment, except where attendance is not practicable e.g. due to illness. When judging whether a student has been in regular attendance, it is necessary to look at his record over the whole period under consideration. If it is generally satisfactory with only a short period of absence, further enquiries may not be necessary. If a student has not been in regular attendance he should be given an opportunity to explain the reason for his non-attendance and to provide evidence, such as a doctor's certificate in the case of illness. If the reason given is not satisfactory or the evidence is not forthcoming, refusal should be the normal course of action."

21. Mr Jowett submitted that para 3.15.1 of the IDIs showed that the Immigration Judge had been wrong in paragraph 15(iii) of her determination to conclude that "the relevant Rules are absolute and do not allow the exercise of any discretion".
22. We can dispose of the final point made by Mr Jowett immediately. Paragraph 60(iv) does not create a "discretion" in its application. Its terms must be applied and, of course, judgments as to the facts and the meaning of the words must be made. But, there is no "discretion" to apply or not apply the Rule. If the individual meets the requirements leave will follow. By contrast, if he fails to met the requirements, para 62 makes it plain that the application must be refused.
23. To the extent that Mr Jowett is suggesting that the IDI somehow 'waters down' the requirement of establishing "satisfactory evidence of regular attendance" in para 60(iv), we do not accept that. The requirements of the Rules cannot be changed by the Secretary of State in the IDIs. That can only be done by the Parliamentary process for amending the Rules. At best, the IDIs can provide an aid to interpretation or they may set out a policy (or practice) that is more generous outside the strict requirements of the Rules. They cannot, however, in making decisions under the Rules dispense with a requirement in those Rules.
24. It may be that IDI 3.15.1 illustrates that, on a proper interpretation, "regular attendance" may still be established despite some justifiable absences, for example on account of illness (as set out in the IDI) or, perhaps, because a student has to return home because of family or personal circumstances such as the death of a close relative. We are content to accept that is correct. That cannot, however, help the first appellant in this appeal. He failed to attend the ECDL course after July 2005 – in particular on its resumption in September 2005 -until its completion in November 2005. The fact that he found the course unsatisfactory does not turn his absence from the course for some 2 to 3 months into "regular attendance". We also note that in a progress report from CEED on the first appellant dated 16 January 2006, it is stated that "[s]ince the inception of the Programme [the first appellant's] attendance has been below average." In the light of the facts, we do not see how the IDI can assist the first appellant.
25. Alternatively, Mr Jowett may be suggesting that the IDI creates a legal entitlement or expectation as to the process which will be followed if there are perceived difficulties with an individual's attendance record. We do not regard it as appropriate to treat this IDI as creating any entitlement or legitimate expectation that, in certain circumstances, enquiries will be made before any refusal decision is taken. That is, no doubt, sensible practice for officials acting on behalf of the Secretary of State. Providing guidance to assist decision-makers in understanding and fairly applying the Immigration Rules is, at least in part, one of the purposes of the IDIs. However, we would not regard the IDI as going beyond guidance of that sort and so as to create a legally enforceable practice, departure from which could properly give rise to an appeal on the "not in accordance with the law" ground before the Tribunal. In any event, even if we were wrong in that view, that could not assist the first appellant here. The procedure was followed. Following his application, the first appellant was asked by the Home Office in letters dated 30 January 2006 and 9 March 2006 to provide further information prior to the decision to refuse him leave being taken. In response to the first, he replied in a letter dated 16 February 2006 (at D3 of the Home Office bundle) in which he explained that he had abandoned the ECDL course because he was not satisfied with the course and had lost interest in it. As we have said, that was not an explanation which could lead to any different view being taken of the first appellant's attendance record on the ECDL course.

Decision

26. For these reasons, the Immigration Judge did not materially err in law in dismissing the first appellant's appeal. The decision to dismiss the second appellant's appeal follows. The decisions to dismiss the appeals of both the first and second appellants stand.

A GRUBB

SENIOR IMMIGRATION JUDGE

Date: