United Kingdom Asylum and Immigration Tribunal

SM (Paragraph 60(v): "passing" and "relevant") Pakistan [2007] UKAIT 00068

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 25 May 2007

Date Determination notified: 25 July 2007

Before

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

Immigration Judge McAll

Between

SM	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Dr Choudhry, of International Immigration Advisory Services For the Respondent: Mr O'Leary, Home Office Presenting Officer

DETERMINATION AND REASONS

The requirement in paragraph 60(v) that a student has taken and passed relevant examinations does not preclude failures. The question is whether (whatever previous failures there may have been) all the examinations appropriate to the period of leave have been passed.

1. The appellant, a citizen of Pakistan, appealed to an Immigration Judge against the decision of the respondent on 13 May 2006 refusing to vary his leave in order to allow him to remain for further studies. The appellant appealed to an Immigration Judge, who allowed his appeal. The Secretary of State sought and obtained an order for reconsideration. Thus the matter comes before us.
2. The relevant Immigration Rules are in Part 3 of the Statement of Changes in Immigration Rules, HC 395. The requirements for extension of stay as a student, in paragraph 60, include one that the applicant:

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

3. As the Immigration Judge found, the appellant was admitted to the United Kingdom as a student in December 2000. He successfully studied and completed courses between 2000 and 2004. He applied for and was granted further leave to remain as a student on 22 October 2001 until 31 March 2002; on 4 May 2002 until 30 September 2002; on 4 December 2002 until 31 March 2003; on 12 May 2003 until 30 September 2003; on 9 October 2003 until 31 December 2004; and on 30 December until 28 February 2006. All those applications were made in time, although, as is apparent from the dates of the grant, they were sometimes not decided until an earlier period had expired.
4. The appellant's last grant of leave from 30 December 2004 to 20 February 2006 was in order to allow him to study for the ACCA certificate part 2. There were exams in June 2005 and December 2005, which the appellant failed. He did, however, study and complete a City and Guilds course in computerised accounts. His application for leave to remain was in order to enable him to re-sit the part 2 examinations and to study for the ACCA certificate part 3. One of the grounds of refusal was that the appellant had not produced satisfactory evidence that he had made satisfactory progress in his course of study, including the taking and passing of any relevant examinations.
5. The evidence before the Immigration Judge was that between February and June 2005 the appellant had various illnesses, which affected his studies and prevented him passing the June 2005 examinations. Further, the appellant's father fell ill on 29 October 2005; the appellant immediately went to Pakistan to be with him, suffered mental anguish and stress and so was not prepared for the exams in December 2005. Following the date of the decision, the appellant had failed a re-sit in June 2006, a failure which he attributed to the stress caused by the present appeal. The Immigration Judge accepted the evidence of the appellant's illnesses and of his visit to Pakistan. He said that "the appellant has proved that there were good and compelling reasons for not successfully completing the examinations for the part 2 ACCA course set for June 2005", and "the appellant has proved good reasons for his failure to successfully complete the examinations in December 2005". He reached no conclusion on the reasons for the appellant's further failure in June 2006. He wrote as follows:

"23. In my judgment the appellant has faced considerable difficulties during 2005. It is hard enough to undertake full time study in normal circumstances, but here there have been serious and compelling intervening circumstances which could have been considered. The appellant has a good history of academic success prior to 2005 and again this could have been considered. The appellant has faced further setback in June 2006 where he failed to pass his examinations. The appellant complains of the stress he has faced due to the appeal process.

24. Considering the appellant's position, as I must, on the day of hearing in October 2006, I find that the appellant would have made adequate progress, but for intervening personal illness and other events. The evidence of illness could have been considered (if available) when considering the wider issue of satisfactory progress. The appellant's past academic achievement could also have been balanced. The issue here is: has the appellant made satisfactory progress, not has he merely passed or failed examinations. The passing or failing of examinations is one indicator of progress and is to be balanced with all the other material that can indicate whether the appellant has made satisfactory progress. In my judgment the appellant can successfully argue he has made satisfactory progress and will ultimately pass the ACCA course. It is the appellant's intention, upon completing the course, to return to Pakistan. In my judgment the appellant should be given that opportunity.

25. For all of the above reasons I allow the appeal."

6. The grounds for review assert that the Immigration Judge failed to apply paragraph 60(v) correctly: reference is made to SW & Others [2006] UKAIT 00054. The grounds also assert that the Immigration Judge appears to have allowed himself a discretion in considering the effect of the illness of the appellant, when there is no such discretion in the relevant Immigration Rules.
7. We heard submissions from Mr O'Leary based on the grounds, and from Dr Choudhry who acknowledged that he had a difficult task.
8. We ought to say something generally about the Tribunal's decision in SW & Others. The relevant paragraphs of that determination are as follows:

"7. The phraseology of the rule is slightly peculiar. Whatever may be its precise effect in the course of an appeal, on its 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'.

8. Of course it is right, as Mr Goldborough pointed out that if there are no 'relevant examinations', an applicant will not be able to show that she has taken and passed them: that, in our view, is the value of the word 'any'. The rule is constructed in such a way that satisfactory progress may be shown without examinations if there have been no examinations; but, if there have been examinations, satisfactory progress has to be shown by evidence including evidence that the examinations have been taken and passed.

9. It is also true that on its face this rule makes no allowance for a person who may, within the regulations of his or her course, have an opportunity to re-sit an examination or paper which has not been passed at the first attempt. That consideration, however, does not cause us to modify our interpretation of this paragraph of the rules, because paragraphs 69A - 69 F make specific provision for leave to enter or remain in order to re-sit an examination."

We see no reason to resile from what the Tribunal said there; but we should not wish the Tribunal to be understood to say that failure in an examination is always fatal to an application for further leave under the Rules. The question is not whether examinations have been failed: it is whether they have been passed. If a failure in an examination prevented any further grant of leave, the re-sit provisions in paragraphs 69A-69F would be of somewhat limited utility. A student who passed a re-sit would want to remain to continue his course, which would be impossible if his previous failure prevented him from meeting the requirements of the Rules.

9. It seems to us that what is required is that the examinations are not merely relevant to the course of study but also relevant to the period of leave have been taken and passed. The student who has leave for the first year of a course, and during that year passes the first year exam (even if on a re-sit, having failed them the first time) should be regarded as having taken and passed relevant exams. But a person who, for example, is granted two (academic) years' leave in order to study the first two years of the course, who fails examinations in June, fails a re-sit in September and then passes a re-sit the following June, so that at the end of two years he has only passed the exams appropriate to the first year, is unlikely to be able to show that he has taken and passed "any relevant examinations", because in two years of leave as a student he has only passed the examinations relevant to one year. If the position at the end of the two years is, however, that he has passed all the examinations relevant to the two years, it seems to us that he is likely to show that he can meet the requirements of paragraph 60(v), despite any failures.
10. In the present case it is clear to us that the Immigration Judge erred in treating the passing of examinations as not required by paragraph 60(v). The appellant before him did not meet the requirements of that paragraph and his appeal could not be allowed under the Immigration Rules.
11. We note that the Immigration Judge did not regard the appellant on the facts as having made satisfactory progress: he said that the appellant "would have made adequate progress", but for the difficulties he had suffered. In those circumstances it is very surprising that he treated the appellant as meeting the requirements of paragraph 60(v), even if he had been right in treating the passing of examinations as optional. We say no more about that.
12. We agree with the Secretary of State that the wording of the student rules does not import any discretion on this issue. If there are exams, the relevant ones must have been taken and passed. If they have not been taken and passed, the applicant cannot meet the requirements of paragraph 60(v). If, as the Immigration Judge found in the present case, there is a good or sufficient explanation for the fact that the examinations have not been taken or passed, that is a matter that the Secretary of State is entitled to and perhaps should consider outside the Rules. But if he declines to depart from the Rules, the appellant cannot succeed in an appeal on the ground that his case was so deserving that the Secretary of State should have departed from the Rules, because of the provisions of s86(6) of the Nationality, Immigration and Asylum Act 2002.
13. The Immigration Judge was wrong to arrogate a discretion to himself in this appeal. Part 3 of the Immigration Rules appears to contain no discretions to make a decision in favour of an applicant who does not meet the requirements of the Rules. In particular, paragraph 62 is as follows:

"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."

If a discretion was to be exercised, it would have been outside the Rules, and, as we have said, could not be the subject of an Immigration Judge's review.

14. At the hearing before us Dr Choudhry told us that the appellant has now, without (as we understand it) any authorisation from the Secretary of State, begun another course. He has abandoned his attempt to qualify as an accountant. We are entirely unpersuaded that those subsequent facts, if we were to take them into account under s85(4), would demonstrate that the appeal should be allowed.
15. For the reasons we have given, we consider that the Immigration Judge materially erred in law. We substitute a determination dismissing the appellant's appeal.

C M G OCKELTON

DEPUTY PRESIDENT

Date: