00007
TY (Student; "satisfactory progress"; course of study) Burma [2007] UKAIT 00007 (16 January 2007)
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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
- The immigration judge was only correct to take into account the appellant's lack of success in the ACCA examinations if those examinations formed part of "[her] course of study". That raises two issues concerning the interpretation of paragraph 60(v). First, what is the meaning of the phrase "his course of study"? Second, if a student has undertaken more than one "course of study" since entering the UK, does 'satisfactory progress' have to be shown in all (or only some, perhaps the most recent) of them? We begin with the meaning of the phrase "course of study".
"Course of study"
- We were not referred to any authorities on the meaning of the phrase "course of study" in paragraphs 57 and 60 of HC 395. It will be immediately apparent from reading paragraphs 57 and 60 that they utilise a variety of vocabulary when referring to the educational endeavour upon which a student may embark. The term "course" or "courses" is most frequently used. However, admission and, because of paragraph 60(i) and (ii), extension of stay require the individual to have been accepted for "a course of study" at an appropriate institution. We also see the pluralized form in the phrase "course of studies" used in paragraph 57(iii) in relation to children under 16 studying at an independent fee paying school. The variation in terms is perplexing since such differences that may exist in their meaning, or indeed application in any particular case, is likely to be subtle.
- A potentially significant juxtaposition for the purposes of this appeal is found in paragraphs 60(iv) and (v). In an extension case, paragraph 60(iv) requires satisfactory evidence of regular attendance during "any course" which has already begun or, presumably where the previous closure has been completed and no new course begun, "any other course" on which the individual has been enrolled in the past. By contrast, paragraph 60(v) when requiring satisfactory evidence of progress looks not to a "course" but rather to the individual's "course of study".
- Our starting point must be the words actually used in paragraphs 60 and 57. It is by no means clear that the word "course" and phrase "course of study" are always used there to convey two distinct meanings. For example, when seeking leave to enter paragraph 57(i) requires an individual to have been accepted on a "course of study" at, for example, a publicly funded institution of higher education, i.e. a University. Paragraph 57(ii) requires that the individual establish that he is able and intends to follow a recognised full-time degree "course" at such an institution. Arguably, the terms are being used interchangeably in this situation: the "degree course" is the "course of study".
- Be that as it may, as a matter of construction, the variation in language used by the draftsman must indicate, at least in principle, that it is intended to convey something different when different words are used, for example, the word "course" and at other times the phrase "course of study". This is all too apparent when the immediately proximate requirements in respect of 'satisfactory attendance' and 'satisfactory progress' are anchored to the notion of a "course" and "course of study" respectively.
- The phrase "course of study" is capable of encompassing more than one course, though it need not. A "course of study" is the sum total of the parts (courses) which coherently add together and lead to the educational outcome sought, such as a certificate or other qualification. Thus, a "course of study" may comprise a foundation course followed by other more advanced courses which together, if successfully completed, lead to the qualification. The contrast therefore is with the parts (the "courses" which themselves may be comprised of modules) and the whole or overall educational endeavour (the "course of study"). That is not to say that a "course of study" must always comprise more than a single "course". Whether it does will depend upon the structure of the "course of study" itself.
- This interpretation of the phrase "course of study" envisages, therefore, an educational enterprise where the individual progresses through courses coherently connected to achieve the sought qualification. That is precisely in tune with the requirement in paragraph 60(v) which is, of course, concerned with establishing "satisfactory progress" before the individual's leave can be extended. It makes perfect sense, in our view, to focus on the individual's overall performance on his "course of study" before granting leave either to progress to another element (course) as part of it or, if that course of study has been completed, to move on to another "course of study" which, by a combination of paragraph 60(i) read with paragraph 57(i), it must be proved he has been accepted on. It follows that the phrase "course of study" does not necessarily entail the student's entire educational experience in the UK. One course of study may be followed by another.
- The present case has an obvious illustration of the distinctions we have drawn. Initially on arriving in the UK, the appellant undertook a number of courses to improve her English language skills before moving on to study accountancy. They are described in her certificates as involving a progression of courses beginning with a starter course and ending with an upper-intermediate level course. Taken together, they form a coherently connected set of language "courses" which, in our view, constitute a "course of study". Likewise, when the appellant began to study accountancy and embarked on a set of courses leading to an ACCA qualification, she began another, but distinct, "course of study".
- Applying this interpretation to the facts, we have concluded that the CAT course was a new "course of study" which the appellant embarked upon in March 2006. It was distinct from the earlier ACCA course in its structure, content and the qualification that it led to.
Which "course of study"?
- That, then leads to the second issue: where more than one course of study has been undertaken by the student whilst in the UK are all (or only some) to be taken into account when applying the phrase "his course of study" in paragraph 60(v)?
- On behalf of the appellant, Mr Sharma submitted that the appropriate "course of study" was the CAT course begun in March 2006. The immigration judge should have found on the evidence that the appellant had passed the only examination she had sat at the date of the hearing. Mr Deller on behalf of the respondent did not rely upon the failures in the ACCA examinations in June and December 2005. Instead, he relied on the evidence before the immigration judge in respect of the CAT examination. He submitted that the immigration judge had not found that the appellant had failed that examination, but merely that she had not proved that she had passed it. As a result, the immigration judge had not committed a material error of law in finding that 'satisfactory progress' had not been established under paragraph 60(v).
- In the light of the way Mr Deller put the case for the respondent, it is not strictly necessary for us to decide whether the judge erred in taking account of the ACCA examinations. However, we will do so given that this was the basis of the order for reconsideration and, as will become clear, because we do not agree with Mr Deller's concession that the ACCA examinations were irrelevant.
- We have not found this to be an easy issue to resolve. The array of terms used in paragraphs 57 and 60 make the search for a coherent meaning problematic. However, there is a rational organisation to paragraphs 57 and 60 which underlies the verbal chaos. To be admitted to the UK as a student, an individual must be accepted for a "course of study" at an appropriate institution as set out in paragraph 57(i). The same requirement applies where an extension of stay is sought as a student because all the requirements of paragraph 57 must be satisfied under paragraph 60. Likewise, the transitional provisions in paragraph 60(i) also require that the applicant for an extension be accepted on a "course of study". The decisions to grant leave to enter and then subsequent extensions of that leave focus on the individual undertaking a "course of study". As leave is granted or renewed, it relates to a particular "course of study" to be completed or freshly embarked upon.
- 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 focusses 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.
Application to the facts
- In this case, the appellant was last given leave to undertake the ACCA course of study. We are not aware that the Secretary of State ever agreed to the 'switch' to the CAT course of study. It follows that the relevant "course of study" under paragraph 60(v) was the ACCA examinations and the immigration judge was correct to look for 'satisfactory progress' in respect of it. We do not agree with Mr Deller's submission that these examinations were irrelevant: they were in fact the only relevant ones. Although, the immigration judge's conclusion in relation to her examination record in the CAT examinations was, in our view, entirely sustainable on the evidence before him, he should not have taken that into account. However, that could not possibly have affected the outcome of his decision. Given her poor examination record in the ACCA course, the only conclusion open to him was the one he reached, namely that, applying SW, she had failed to establish "satisfactory progress in [her] course of study" under paragraph 60(v).
Decision
- Consequently, we conclude that the immigration judge's decision does not disclose a material error of law and, as a result, his decision to dismiss the appeal stands.
A GRUBB
SENIOR IMMIGRATION JUDGE
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