| IMMIGRATION — Limited leave to enter — Application to extend stay — Students wishing to changes courses or re-sit examinations —- Tribunal finding students confined to course for which leave granted and making passing of examination requirement of any extension — Whether rules confining student to single course of study — Whether failure of examinations negating satisfactory progress — Immigration Rules (HC 395), r 60
GO and others v Secretary of State for the Home Department [2008] EWCA Civ 747; [2008] WLR (D) 225
CA: Sedley, Longmore and Moses LJJ: 1 July 2008
A foreign student who wanted an extension of stay had to be able to produce evidence of satisfactory progress, whether on the course named in his application for entry clearance or on another recognised course which he had undertaken. A failure to sit or to pass relevant examinations would always be material to the evaluation of the student’s progress, but whether it was decisive would depend on the reason for it.
The Court of Appeal so stated when (1) allowing the appeals and restoring the determinations of immigration judges in cases brought by GO, WA, HZ, AM, KM, TG and AG, foreign students who had entered the United Kingdom or had leave to remain to pursue a named course and had either started a different course or failed examinations; and (2) dismissing the appeal of EO.
SEDLEY LJ, giving the judgment of the court, said that the case concerned an important question: what were the legal consequences if a foreign student who had obtained leave to enter or remain in order to follow a named course embarked on a different course or failed the course examinations? The consequences arose from the provisions of the Immigration Rules (HC 395) governing leave to enter or remain as a student and leave to enter for the purpose of re-sitting an examination. Central to the present case was the requirement of r 60(v) that a student who wanted an extension of stay had to produce “satisfactory evidence of regular attendance in his course of study, including the taking and passing of any relevant examinations”. A series of Asylum and Immigration Tribunal determinations had held that requirement to confine the student to the course for which leave to enter was given and to make passing the course examinations a requisite of any extension of stay. That interpretation, while consistent with the words of the sub-rule, was inconsistent with the Immigration Act 1971 and the Immigration Rules read as a whole. The grant of clearance to enter the UK as a student did not confine the entrant to a single course of study, and failing an examination did not always negate satisfactory progress. The meaning of r 60(v) was that a student who wanted an extension of stay had to be able to produce evidence of satisfactory progress, whether on the course named in his application for entry clearance or on another recognised course which he had undertaken. A failure to sit or to pass relevant examinations would always be material to the evaluation of the student’s progress, but whether it was decisive would depend on the reason for it. If the reason was not inconsistent with satisfactory progress, r 60(v) was satisfied.
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Appearances: Nicholas Padfield QC and Arfan Khan for GO (NC Brothers & Co, Reading); EO in person; Satvinder Juss (Malik Law, Bethnal Green) for KM, AM and WA; Sourour Bassiri-Dezfouli (Francis MacFoy, Lewisham) for HZ; Vincent Onuegbu, solicitor (Ovo) for TG; Ian Macdonald QC and Manoj Rupasinghe (Chipatiso & Co, Newham) for AG; Ian Hutton (Treasury Solicitor) for the Secretary of State.
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