TB (Student application – variation of course – effect) Jamaica [2006] UKAIT 00034

Asylum and Immigration Tribunal 	

THE IMMIGRATION ACTS

Heard at Field House 	Determination Promulgated	
On 28 February 2006	On 06 April 2006	
	…………………………………	

Before

Mr C M G OCKELTON (DEPUTY PRESIDENT)
Mr J BARNES (SENIOR Immigration Judge)
Mr a jordan (Senior Immigration Judge) 

Between

Appellant

and

Secretary of State for the Home Department 

Respondent

Representation:
For the Appellant:	Mr J Rene, counsel, instructed by Total Legal Services
For the Respondent:	Miss J Brown, Home Office Presenting Officer 

Prior to the Secretary of State’s decision and without notification to him, the Appellant changed her course of studies from that in respect of which the application had been made (paragraph 57(ii)(b) of HC 395 as amended) to one referable to paragraph 57(ii)(a )thereof. Held: (1) the nature of the change was such that the Appellant could not comply with the requirements of the Immgration Rules in relation to the course for which she had initially applied; the Immigration Judge erred in law in considering that the provisions of s. 85(4) of the Nationality, Immigration and Asylum Act 2002 (as explained in LS (Post decision evidence; direction; applicability) Gambia [2005] UKIAT 00085) permitted him to consider post-decision evidence in relation to an application entirely different in nature from that for which the Appellant had applied. (2) An Immigration Judge is entitled to consider whether an Appellant can meet the requirements of all relevant provisions of the Immigration Rules, whether or not raised as an issue by the Respondent, provided that the Appellant is given the opportunity to address such additional requirements (R v Immigration Appeal Tribunal ex parte Kwok On Tong [1981] Imm AR 214 applied). (3) It was arguable that by changing the fundamental nature of her application the Appellant should have known that all requirements of the Immigration Rules were brought into play notwithstanding the terms of the refusal decision. But, in any event event, even if the Immigration Judge had erred in law in not putting her more clearly on notice as to the matters he intended to take into account, such error was not material to the outcome of the appeal for the reasons set out at (1) above.

DETERMINATION AND REASONS

1.	This is the hearing for the reconsideration of the determination of the appellant's appeal against the decision of the respondent taken on 19 September 2005 to refuse to grant her an extension of leave to remain in the United Kingdom as a student.

2.	The appellant is citizen of Jamaica, born on 6 July 1983, who entered the United Kingdom  on 21 October 2002 as a visitor and was given leave to remain  in that capacity until 4 March 2003. Before expiration of that leave she made an application for variation of leave to remain as a student which was granted on 21 February 2003 to expire 1 February 2004. This was in relation to studies with Foresight Business Training in basic bookkeeping in respect of which she was given diplomas in Basic Bookkeeping on 30 July 2003 and in relation to Maintaining a Sales Ledger and Purchase Ledger on 8 October 2003.  Prior to the expiration of that leave,  the appellant again made an in-time application for further leave to remain as a student which was granted for the period 20 February 2004 to 30 June 2005.  During this period she successfully attained certificates of proficiency from Pitman Training in computer applications, namely Word 2000 on 1 April 2005, Excel 2000 on 6 June 2005 and PowerPoint 2000 on 24 June 2005.    Additionally, she had part time weekend work during that period.

3.	On 20 June 2005 the appellant made a further in-time application for further leave to remain as a student.  Her studies which had resulted in the Pitman Training Certificate had also been carried out at Foresight Business Training where she had been studying ‘Business ICT’ at intermediate level. The purpose of the latest application was to follow a course in legal secretarial studies from  4 July 2005 to 30 June 2006, again at Foresight Business Training. This was described on the application forms as a weekday day time course at a single institution involving a minimum of fifteen hours per week.  Section 9 of the application form which the appellant completed contained a declaration which included the following specific statements:

‘The information I have given in this form is complete and is true to the best of my knowledge ...

I confirm that if, before this application is decided, there is a material change in my circumstances, or new information relevant to this application becomes available, I will inform the Home Office. ...

I understand that the Home Office may make enquiries of the institution(s) named in sections 5.2 and/or 6.2 of this form in order to establish whether I meet the requirements of the Immigration Rules with regard to satisfactory attendance and progress ...’

4.	The institutions referred to in the two sections above were Foresight Business Training, being those with whom she had previously studied (section 5), and those with whom the proposed further studies were to be carried out (section 6).

5.	On 19 September 2005 the respondent issued notice of his decision to refuse to vary leave under paragraph 62 with reference to 60(vi) of HC 395 (as amended) in the following terms:

‘You have applied for leave to remain in the United Kingdom as a student but your application has been refused.

Since you commenced your studies in the United Kingdom on 17.02.03 you have only undertaken short courses below degree level and the Secretary of State is not satisfied that you would not, as  a result of an extension of stay, spend more than two years on short courses below degree level (courses of less than one year’s duration), or longer courses broken off before completion.’

6.	It is common ground that, unknown to the Secretary of State, the appellant had on 12 September 2005 commenced what is described as an ABE: Business Information Systems Course at  Giovanni Timarco Centre of Education (GTCE) in Lewisham.  The only written evidence in relation to this new course was a student progress and attendance sheet dated 20 October 2005 which said that the course would end in June 2008 and that attendance, for the limited period involved, had been ‘very good’ and the total fees due of £1530 paid in full. GTCE stated that it was registered with the DfES and was unable to provide additional evidence of progress as the student commenced  ‘his’ course recently. Beyond this there is only the student enrolment form of 12 September 2005 which provides no additional information.  

7.	The appellant appealed against the decision of the Secretary of State and the grounds of appeal are not particularly enlightening. They simply assert that the respondent erred in his decision which was made without consideration of all the facts before him, and, curiously, go on to say that the refusal was based on an erroneous assumption that the appellant did not intend to leave the UK at the conclusion of her studies, a matter in respect of there was no evidence on which the respondent could have reached this conclusion.  That was not, of course, the basis of the refusal of the application. More significantly, perhaps, the appellant did not then say that she had switched courses and no longer intended to pursue that in respect of which her application had been made.  Further, there is no suggestion on the part of Mr Rene that the appellant ever informed the respondent of this change in her circumstances as she had undertaken to do in her application form.   

8.	Her appeal was heard on 27 October 20-05 by Mr M.J. Gillespie, an Immigration Judge.  For the first time, there was reference in the appellant's bundle, stamped as received by the hearing centre two days prior to the date of hearing, to the changed course of study. This bundle also included a short statement by the appellant dated 20 October 2005 and said this in relation to the current appeal :

‘4.   I have been subsequently extending my leave since then until the last leave which was refused in September 2005 on the basis that since I commenced studies in February 2003, I have only undertaken short courses below degree level.  

5.     It is my case that I have been progressing in my studies and I am now studying my ABE Business Information Systems which is in line with my previous studies and qualifications.

6.   I have now enrolled to study an ABE Business Information System. I gained admission into this course with the qualifications previously obtained in my studies. 

7.   I therefore disagree with the Home Office that I am not making any progress in my studies as it is always the case that I must complete foundation course/studies before progressing to a degree level. 

8.     I am enjoying my studies and progressing well. 

9.   This is the basis of the full appeal hearing.’

9.	At the hearing before the Immigration Judge, the appellant was represented by Mrs Oji of Counsel, and the respondent was represented by Miss Gaskell, a Presenting Officer. The Immigration Judge records the issues before him in the following terms at paragraph 7 of his determination:

‘The issue, as this has been presented in the main by the parties, appears to include whether, as was said by Miss Gaskell, the appellant has spent two years already doing short courses and will continue in the United Kingdom doing only short courses below degree level or other course that will not completed [sic];  or, as was said by Mr Oji [sic], the term of the rules have been satisfied by the evidence, which shows the appellant enrolled on a degree course.  In fact, however, the entire basis of the appeal differs from the original application in that the appellant no longer claims the intention mentioned in the application form. It is perhaps somewhat anomalous that an appeal should still subsist, so divergent is the present basis for relief from  that of the original application.  One would have thought that a further application  on the new basis, and an original decision  at first instance would be required. Nevertheless, section 85(4) of the Nationality, Immigration and Asylum Act 2002 provides that in relation to an appeal, other than appeal against the refusal of an entry clearance as provided for under  s.95(5), all evidence relevant to the substance of the decision, including evidence concerning a matter arising after the  date of decision, may be considered by the Tribunal. The effect of this appears to be that where there has been even a fundamental change in the basis of an application, between the date of decision and the date of appeal, evidence as to the new facts surrounding this change ought nevertheless to be considered to determine whether, as at the date of appeal, the requirements for the issue of the leave sought have been made out.   I must therefore turn to consider each of the requirements for the issue of further leave to remain as a student.’

10.	The Immigration Judge then went on at paragraphs 8 to 9 of the determination to consider the requirements of paragraph 60 of HC 395, as amended, the relevant Immigration Rule in relation to student applications. Having set out the evidence in this respect, he concluded at paragraph 10 that the appellant had failed to prove on a balance of probabilities that she met the requirements of paragraph 60. 

11.	It is appropriate at this point that we should identify the relevant rules and, where appropriate, set out their provisions as applicable to this appeal.

12.	Paragraph 32 is the general provision governing applications for extension of the time limit on, or variation of conditions attached to, a person’s stay after admission to the United Kingdom, which must be made prior to expiration of the current leave. With certain exceptions which do not apply to this appeal, such applications must be made using the form prescribed for that purpose by the Secretary of State, completed in the manner required by the form and accompanied by the documents and photographs specified in it.  Paragraph 32 specifically provides that an application for such a variation made in any other way is not valid.

13.	Paragraph 57 sets out the requirements for leave to enter as a student and paragraph 60 deals with the requirements for an extension of stay as a student.  

14.	For our present purposes the relevant provisions of paragraph 57 are as follows:

’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 educating;  or

(b)  a weekday full time course involving attendance at a similar institution for a minimum of fifteen hours organised day time study per week of a single subject or directly related subject;  or

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

16.	The provisions of paragraph 60 are:

’60. The requirement for extension of stay as a student are that the applicant 

(i)	either 

(a)  he is a person specified in Appendix 1 to these Rules and he was last admitted to the United Kingdom in possession of a valid student entry clearance, or valid prospective student entry clearance in accordance with paragraph 82 to 87 of these Rules;  ... 

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

(iii)   has produced evidence of his involvement 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 involved in the past;  and

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

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

17.	We are satisfied that the appellant meets the requirements of paragraph 60(i)(a) as she is a visa national of Jamaica who, according to the passport produced to the respondent, a copy of which is in the respondent's bundle, returned to Jamaica on 22 March 2004 and was then subsequently readmitted to the United Kingdom on return from that visit to  her home country at a time when she had a valid student entry clearance in the United Kingdom. 

18.	As we have already noted, the Immigration Judge considered the fact that the nature of the appellant's course of study had changed and was now not the same course as that  in respect of which she had sought an extension of leave to remain in the United Kingdom as a student - see paragraph 7 of his determination quoted above.    He relies upon section 85(5) of the Nationality, Immigration and Asylum Act 2002 as requiring him to consider evidence as to the situation current at the time of the determination of the appeal even where there has been ‘a fundamental change in the basis of an application, between the date of decision and the date of appeal ...’.  The reference to s.85(5) is clearly an error on his part and we assume that he intended to refer to s.85(4) which provides as follows:

‘On an appeal under s.82(1) or 83(2) against the decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising since the date of the determination.’

19.	The current appeal is under s.82(1) as it is an ‘immigration decision’ falling within the definition in s.82(2)(b).  Section 86 of the 2002 Act deals with the determination of an appeal under s.82(1) and the following subsections are relevant:

(2) 	the Tribunal must determine –
(a) any matter raised in the grounds of appeal (whether or not by virtue of s.85(1)), and (b) any matter  which s.85 requires it to consider ...

(3) 	the Tribunal must allow the appeal in so far as it thinks that – 

(a)	a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including Immigration Rules), or 

(b)  a discretion exercised in making a decision against which the appeal is  brought or is treated as being brought should have been exercised differently. ...

(5) 	In so far as subsection (3) does not apply, the Tribunal shall dismiss the appeal.’

20.	We bear in mind that in LS (Post decision evidence; direction; appealability) Gambia [2005] UKAIT 00085 the Tribunal had concluded that, save in those cases to which s.85(5) applied in restricting consideration only to circumstances operating at the time of the decision to refuse, the effect of s.85(4) was to  entitle an appellant to adduce evidence as to the position current at the date of hearing of his appeal to support a claim that the decision ‘is not in accordance with the Immigration Rules’ even where it is clear that the requirements of the Immigration Rules were not met at the date of the decision itself. That evidence, however must be ‘relevant to the substance of the decision’. In the present case, the substance of the application  was for leave to follow a course in legal secretarial studies commencing on 4 July 2005 and ending on 30 June 2006 – that is for a period of less than one year. That is an application to follow a course of study which falls within the provisions of paragraph 57(ii)(b) of the Immigration Rules and, by reason of the appellant's history of study in the United Kingdom, was bound to fail for the reason given by the respondent in the refusal decision, namely that the appellant  failed to comply with the  requirements of paragraph 60(vi) of the Rules. The scheme of the policy in relation to applications for leave to  enter or remains a student are geared to consideration of a specific type of course as provided in paragraph 57(ii)  which gives three alternative categories.  

21.	The appellant had chosen to make an application in relation to a course which fell within category (ii)(b) and it was such an application with which the substance of the decision was concerned.   The appellant sought before the Immigration Judge to claim compliance with the rules relating to extension of stay as a student on the basis of a course within category (ii)(a) of paragraph 57.  That is an entirely different type of application as is evidenced by the fact that the basis of refusal of the current application would not have any relevance to an application in the different category. By way of analogy, it is as though the appellant had come before the Immigration Judge with evidence that she was now married subsequent to the respondent's decision and required him to consider her immigration status on that basis. That would clearly be absurd as it could have no relevance to the substance of the decision under appeal. The position is no different  in student applications which by their nature are tied to the specific course sought to be followed as set out in the application for extension of leave. Whilst it may be that later evidence of a change of institution for the purpose of continuing in a course in the same category as that applied for might be relevant to the decision on the student application as at the date of the hearing, the same cannot be said to apply  to an entirely different form of student application as is the case here.  

22.   There is no question but that the Immigration Judge materially erred in law in considering that the effect of s.85(4) above was that he was required to determine whether, as at the date of appeal, the requirements for the leave sought had been made out an entirely different basis from that in respect of which the application for extension of leave had been made.

23.	In any event, we note that there was in truth no post decision evidence relevant to the substance of the decision. The appellant had chosen, prior to the date of decision, to take a course falling into a different student leave category without informing the respondent in accordance with her undertaking to do so contained in her application form.  At the date of decision it is clear that the appellant had abandoned any intention of following a course of study falling into the category for which she had applied for an extension of stay. The position is that the Immigration Judge simply had no jurisdiction to consider whether the appellant met the requirements of the rules in respect of this entirely different category of course in respect of which it would be necessary for the appellant to make a fresh application for leave to the respondent.  

24.	Nevertheless, the judge went on to consider the appeal before him on the basis that it should be considered having regard to the evidence, which he accepted, that the appellant had commenced on the ABE Business Information systems course with GTCE with effect from 12 September 2005.  As he had said in paragraph 7 of his determination, he then turned to a consideration of the requirements of paragraph 60 of HC 395 which he deals with point-by-point at paragraphs 8 and 9 of his determination, summarising the findings on the basis of which he dismissed the appeal at paragraph 10 of his determination in the following terms:

‘For these reasons, I find that the appellant has failed to prove to a balance of probabilities that she meets the following requirement of  rule 60:

(a)	paragraph 60(ii) as read with paragraphs 57(ii), 57(iv), 57(v) and 57(vi); more particularly I am not satisfied that the appellant intends to pursue a course of studies, intends to leave the United Kingdom  at the conclusion thereof, does not intend to take work save for approved part time or vacation work, and has the means for accommodation and maintenance without  taking employment or public benefits;  and

(b)	paragraph 60(iv); more particularly that satisfactory evidence of regular attendance on any other course for which she has been enrolled in the past has not been produced; and

(c) 	paragraph 60(v); more particularly in  that satisfactory evidence of progress in her course of study has not been produced; and

(d) 	paragraph 60(vi); more particularly in that I  am not satisfied to a balance or probabilities that the appellant will complete the present course, rather than break it off before completion; and

(e) 	paragraph 60(vii); more particularly in that I  am not satisfied to a balance of probabilities that satisfactory evidence of sufficient sponsorship funding is available.’

25.	The appellant was seeking and was granted an order for reconsideration of that decision on grounds which, although set out at considerable length, may be summarised as asserting that the only aspect of paragraph 60 upon which the respondent relied for refusal of the application was paragraph 60(vi) and that it was only at the hearing that the Immigration Judge then sought to examine the other aspects of paragraph 60.  It was submitted that the appellant was not only taken by surprise but was also prejudiced by this and therefore denied a fair hearing. It was further asserted that it was incumbent upon the Immigration Judge to adjourn the hearing to give the appellant an opportunity fully to address the concerns of the other aspects of paragraph 60, given that he was minded to deal with it. The grounds of appeal then go on to take issue with specific findings made by the judge leading to his dismissal of the appeal on the basis recorded in paragraph 10 of his determination.

26.	The order for reconsideration was in the following terms:

‘I give permission to argue each  of the points raised in the grounds but I am particularly concerned that the Immigration Judge appears to have put initial points that were not put in issue by the Secretary of State without giving the appellant notice that he was putting other points in issue. 

It is arguable that this approach was wrong and arguable that any such error was material. Nevertheless the Tribunal will expect the appellant to show how she would have met any of the additional points put in issue by the learned Immigration Judge if she had had notice of his concerns.’

27.	Despite the specific terms of the order for reconsideration, the appellant has not sought to put in any additional evidence advancing her case from that as it appeared at the date of the hearing before the Immigration Judge.   

28.	The record of proceedings on the Tribunal file does not show that the Immigration Judge specifically drew the attention of the appellant's counsel to his intention to consider the applicable Immigration Rules generally as opposed to paragraph 60(vi) upon which the respondent had placed specific reliance in refusing the application.  That it was perfectly proper for him to consider the application under all relevant Immigration Rules is established by the ratio in R v Immigration Appeal Tribunal ex parte Kwok On Tong [1981] Imm AR 214 where, in an appeal governed by the provisions of s.19(1) of the Immigration Act 1971, it was held that both an Adjudicator and the then Immigration Appeal Tribunal were required to look at the whole of any relevant rule to see whether or not the circumstances of a particular case appear to comply with it. It was said further that if some part of it had not been specifically referred to in the Immigration Officer’s notice of reasons that did not remove that duty or right from the Adjudicator or the Tribunal subject only to the requirement that if a matter was raised either on behalf of the Home Office or by the Adjudicator or Tribunal which was not in the notice of refusal, steps must be taken to ensure that the appellant had a proper opportunity of dealing with the point. In such circumstances, where the appellant would not have come ready to meet the point, it might be necessary for there to  be an adjournment.

29.	We are satisfied that there is no difference in the requirements under s.19(1) of the Immigration Act 1971 and those under s.86(3)(a) of the 2002 Act which we have already set out above. Both require that in considering whether a decision was not in accordance with the law, the effect of the Immigration Rules is to be taken into account.  

30.	There was, therefore, no error of law on the part of the Immigration Judge in holding that the appellant must satisfy him that she complied with all of the relevant Immigration Rules and not simply that on which the respondent's refusal of her application expressly relied.

31.	It is certainly arguable that as the appellant had herself chosen to make a change in her course of studies which would necessarily result in the refusal of her application on the basis on which it had been made: but, she was now seeking to rely on placing herself into a different category of student course in her appeal before the Immigration Judge. It must have been apparent to her legal representatives that on the basis of the ratio in Kwok On Tong  – a decision binding on the Asylum and Immigration Tribunal –she had chosen to open up the range of her appeal to demonstrating that she complied with all requirements of the appropriate Immigration Rules.  

32.	The respondent cannot be criticised for confining his reasoning to the one requirement which was clearly fatal to the prospects of success in her application as made to him. There was no reason for him to consider anything else in those circumstances.  But, it must have been apparent to any competent legal adviser that the way in which the appellant now sought to put her case would almost inevitably raise generally her ability to comply with each and every aspect of the applicable rules. The burden of proving her case on the balance of probabilities rested on her, and she should undoubtedly have come prepared to deal with the appeal on a full basis.   Indeed, the determination records evidence which goes to issues wider  than simply the changed course of study. But, let us assume that weight must be given to the primary assertion in the grounds of appeal that the appellant was unfairly prejudiced by the Immigration Judge taking the wide ranging approach which he did without forewarning so as to give her the opportunity fully to prepare her case on the basis that all issues raised in the rules would have to be proved by her on the balance of probabilities.  That would give rise to procedural  unfairness and could arguably amount to an error of law on the part of the judge in his approach to the making of his findings and decision to dismiss the appeal without giving the appellant the opportunity to call further evidence as to the issues which he identifies only in his determination. 

33.	The issue is then whether that amounts to a material error of law on his part. In our judgment it does not. We have already explained that the judge materially erred in law in his approach in accepting that he was required to consider the application on the basis of the current course of study rather than that in respect of which the application to the respondent had been made. On the basis that the appeal was bound to be considered in the light of whether or not the appellant could satisfy the rules in relation to the course of study for which she had applied, it is, as we have said, common ground that she cannot succeed before us.  Even were we precluded from taking into account an issue which goes to the fundamental jurisdiction of the Tribunal to entertain the appeal on the basis on which it was entertained by the Immigration Judge, because the respondent had failed to raise that issue by the appropriate counter-notice before us, the most that the appellant could hope for at this hearing is a direction that the reconsideration be adjourned in order to take full evidence from her by way of reconsideration afresh.  But, she would be bound to fail on such reconsideration because she is seeking to argue an entirely different application from that in respect of which the appeal arises.  Taking her arguments  at their highest, she cannot succeed in her appeal.

34.	It therefore follows that even if the Immigration Judge did err in law in failing to make clear the way in which he proposed to consider the appeal before him, such error could not be material to the outcome.

35.	For the above reasons, the Tribunal did not materially err in its dismissal of this appeal and the decision of the Immigration Judge shall stand.

Signed								Date       4th April 2006 

J Barnes
Senior Immigration Judge