Upper Tribunal (Immigration and asylum chamber), 2009-12-31, [2010] UKAIT 1 (AZ (Rule 57(iv): "external student", overseas degree))
| Jurisdiction | UK Non-devolved |
| Judge | Mr J Freeman, Mr R A McKee |
| Status | Reported |
| Date | 31 December 2009 |
| Published date | 22 January 2010 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 18 December 2009 |
| Subject Matter | Rule 57(iv): "external student", overseas degree |
| Appeal Number | [2010] UKAIT 1 |
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 Judge McKee
Between:
AZ
Appellant
and
Entry Clearance Officer, Islamabad
Respondent
Representation:
For the appellant: Mr A Rehman of Mayfair Solicitors
For the respondent: Miss Z Kiss, Senior Presenting Officer
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 15 is 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 in YS (India), it is to be preferred.
DETERMINATION AND REASONS
1. On 6th 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 19th 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.”
2. When the appeal came before Immigration Judge Ruth on 26th 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 19th 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.”
3. 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 studying for a degree from a UK degree awarding body without any requirement to attend the UK degree awarding body’s premises or a UK Listed Body’s premises for lectures and tutorials” ~ and concluded that a person intending to study at a private institution for a degree awarded by another body could only satisfy the requirements of rule 57(iv) by registering with a UK degree awarding body.
4. The judge acknowledged that the IDIs said the opposite, but he observed (rightly) that the IDIs are not conclusive as to the correct interpretation of the Immigration Rules. In the instant case, the Tribunal had adopted a different interpretation, and that was the one which he felt bound to follow. The appeal therefore fell to be dismissed.
5. A review was sought, arguing essentially that the guidance given to Home Office caseworkers was right, and the Tribunal wrong, in the interpretation of rule 57(iv). Senior Immigration Judge Goldstein, however, reiterated the point that the IDIs are no more than internal guidance for Home Office officials and can in no sense bind the Tribunal in the matter of the correct interpretation of the Rules. The application for a review was then renewed to the High Court, and on 8th October 2009 Christopher Symons QC, sitting as a deputy judge of the High Court, ordered reconsideration on the basis that the appellant’s submissions may have been right. Thus it is that the matter comes before us.
6. At the ‘first stage’ of the reconsideration, both representatives again adopted the joint position that rule 57(iv) does not apply to students at private institutions studying for overseas degrees. They invited us to depart from the ‘reported’ decision in YS (India) and, although it is only with great hesitation that we would venture to hold that that case was wrongly decided, we have come to the...
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