West Law Report

Overseas students can change their courses

Posted in Times Law Report by mrkooenglish on July 23, 2008

From The TimesJuly 23, 2008

Overseas students can change their courses
Court of Appeal
Published July 23, 2008
GO and Others v Secretary of State for the Home Department
Before Lord Justice Sedley, Lord Justice Longmore and Lord Justice Moses
Judgment July 1, 2008

Overseas students could change their courses but if they wanted an extension of stay in the United Kingdom, they had to be able to produce evidence of satisfactory progress, whether on the course named in the application for entry clearance or on another recognised course.

The Court of Appeal so stated when: (i) 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 (ii) dismissing the appeal of EO.

Mr Nicholas Padfield, QC and Mr Arfan Khan for GO; EO in person; Mr Satvinder Juss for KM, AM and WA; Mrs Sourour Bassiri-Dezfouli for HZ; Mr Vincent Onuegbu, solicitor, for TG; Mr Ian Macdonald, QC and Mr Manoj Rupasinghe for AG; Mr Ian Hutton for the Secretary of State for the Home Department.

LORD JUSTICE SEDLEY giving the judgment of the court, asked 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 (rules 57 to 62 )and leave to enter for the purpose of resitting an examination (rules 69A to 69F).

Central to the present case was the requirement of rule 60(v) that a student who wanted an extension of stay must 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.

Their Lordships were satisfied that 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.

In their Lordships’ judgment, 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 rule 60(v) was that a student who wanted an extension of stay must 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, rule 60(v) was satisfied.

Solicitors: N. C. Brothers & Co, Reading; Malik Law, Bethnal Green; Francis Macfoy, Lewisham; Ovo, Clerkenwell; C hipatiso & Co, Manor Park; Treasury Solicitor.

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