Az (Rule 57(Iv))
| Jurisdiction | England & Wales |
| Judge | Freeman,McKee |
| Judgment Date | 18 December 2009 |
| Neutral Citation | [2010] UKAIT 1 |
| Date | 18 December 2009 |
| Court | Asylum and Immigration Tribunal |
[2010] UKAIT 1
ASYLUM AND IMMIGRATION TRIBUNAL
Senior Immigration Judge Freeman
Senior Immigration Judge McKee
For the appellant: Mr A Rehman of Mayfair Solicitors
For the respondent: Miss Z Kiss, Senior Presenting Officer
AZ (rule 57(iv):“external student” — overseas degree) Pakistan
Although the IDIs are not themselves a guide to the interpretation of the Rules, a construction of rule 57(iv) alternative to that adopted in YS ( India) [2009] UKAIT 15is suggested by them, and of the definition of ‘external student’ at rule 6, is possible, and, as it both agrees with the Home Office view and avoids the unfortunate effect of the construction inYS(India), it is to be preferred.
On 6 th August 2008 the appellant was refused entry clearance to undertake an 18-month course at Essex College (situated, surprisingly perhaps, in Wembley) leading to a Master's degree to be awarded by Barbican University. This university is based in the United States of America, but that is not why the application was refused. Rather, the sole ground of refusal was that Essex College was not itself a degree-awarding body, while the appellant was not enrolled as an external student at Barbican University. It would seem that the ECO either did not realize that Barbican University is not a British university, or did not think that this was relevant. At any rate, the immigration rule cited in the Notice of Refusal was paragraph 57(iv), and it is the correct interpretation of that rule which is the only issue in the present appeal. Rule 57(iv), which in its present form was introduced on 19 th April 2007, makes it a requirement for someone seeking leave to enter as a student that “ if he has been accepted to study externally for a degree at a private education institution, he is also registered as an external student with the UK degree awarding body.”
When the appeal came before Immigration Judge Ruth on 26 th March 2009, the case of YS(paragraph 57(iv): “external student”) India [2009] UKAIT 15 had only just been reported, and Mr Rehman, who also represented the appellant before us, very properly handed a copy of that determination to the judge, who was not familiar with it. Both Mr Rehman and Mr Harold, the Presenting Officer, took the position that, because Barbican University is not a UK degree awarding body, rule 57(iv) did not apply to the appellant at all. Reference was made to Chapter 3, Section 3 of the Immigration Directorates' Instructions (‘IDIs’), which deals at 13.5 with the topic of ‘External Students’. After noting that from 19 th April 2007 a new category of ‘external student’ was introduced into paragraph 57 of the Immigration Rules (and defined at paragraph 6, the Interpretation Section), the guidance goes on to explain that if a student is enrolled at a private college (which is not itself a ‘listed body’) and is aiming for a degree awarded by a recognized UK university, he must be registered as an external student with that university. The example is given of London University, which has long issued degrees to students who have studied for them at private educational institutions. The crucial passage for our purposes is this:
“It [i.e. the new requirement] does not apply to those external students at a private education institution in the United Kingdom who are studying for a degree awarded by an overseas university.”
Initially, IJ Ruth agreed with the joint position adopted by both parties, and indicated that, as the ECO was satisfied about all the other requirements of rule 57, he would allow the appeal. After the hearing, however, a closer reading of YS (India) induced the judge to change his mind. The Deputy Presidential panel in that case had compared the wording of rule 57(iv) with the definition of ‘external student’ at rule 6 ~ “ a student...
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Upper Tribunal (Immigration and asylum chamber), 2009-12-31, [2010] UKAIT 1 (AZ (Rule 57(iv): "external student", overseas degree))
..."Times New Roman", serif; font-size: 12pt; so-language: ar-SA } AZ (rule 57(iv):“external student” – overseas degree) Pakistan [2010] UKAIT 00001 ASYLUM AND IMMIGRATION TRIBUNAL Heard at: Procession House On: 18th December 2009 Before: Senior Immigration Judge Freeman Senior Immigration Jud......