Upper Tribunal (Immigration and asylum chamber), 2009-03-17, [2009] UKAIT 15 (YS (Paragraph 57(iv): "external student"))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Mrs Martin C J |
| Status | Reported |
| Date | 17 March 2009 |
| Published date | 19 March 2009 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 19 December 2008 |
| Subject Matter | Paragraph 57(iv): "external student" |
| Appeal Number | [2009] UKAIT 15 |
YS (Paragraph 57(iv): “external student”) India [2009] UKAIT 00015
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Stoke on Trent Date of Hearing: 19 December 2008
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Martin
Between
YS
Appellant
and
THE ENTRY CLEARANCE OFFICER, NEW DELHI
Respondent
Representation
For the Appellant: No appearance
For the Respondent: Mr Corden, Home Office Presenting Officer
The definition of “an external student” in para 6 of the Immigration Rules makes it clear that, to comply with para 57(iv), an external student must be registered as studying for a degree from a UK degree awarding body.
DETERMINATION AND REASONS
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The Appellant, a national of India, appealed to the Tribunal against the decision of the Respondent Entry Clearance Officer on 8 October 2007 refusing him entry clearance to the United Kingdom as a student. The Immigration Judge dismissed the appeal. The Appellant sought and obtained an order for reconsideration. Thus the matter comes before us.
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The Appellant is, of course outside the United Kingdom. He has no representative in the United Kingdom. There was no appearance by him or on his behalf before us. We decided that this was an appropriate case to decide in his absence.
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The Appellant’s proposal was to undertake an MBA, receiving his teaching at CESOS London College, with a view to a degree awarded by IMPAC University in the United States.
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The Entry Clearance Officer refused the application on a number of grounds. He was not satisfied that the Appellant intended to follow the chosen course or that his plan to study was realistic or in line with his previous pattern of study. He was not satisfied that the Appellant was seeking a degree awarded by a UK degree awarding body. He further was not satisfied that the Appellant had available to him sufficient funds to meet the cost of his studies and accommodation.
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The Immigration Judge concluded that he was satisfied on matters relating to the Appellant’s intention. He calculated the funds available to the Appellant and concluded that at £458 they were not sufficient. He also said that “the fact the Appellant is doing a degree course which is not awarded by a UK degree awarding body must mean that the Appellant fails to meet one of the other requirements of para 57”. He thus dismissed the appeal.
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The application for reconsideration contains detailed calculations relating to the funds said to be available to the Appellant. It makes no mention of the other ground upon which the Immigration Judge dismissed the appeal. The order for reconsideration, rather surprisingly, refers only to that other ground and does not mention funding. It looks as though the Senior Immigration Judge was so taken with the point that he had thought of himself that the forgot to deal with the point raised by the Appellant.
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We will deal first with the question of whether the Appellant’s proposal could meet the requirements of the rules in any event. The relevant rules are those in para 57 of the Statement of Changes in Immigration Rules, HC395, as follows:
“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, or a period of research, which is to be provided by or undertaken at an organisation which is included on the register of Education and Training Providers, and is at either:
(a) a publicly funded institution of further or higher education which maintains satisfactory records of enrolment and attendance of students and supplies these to the Border and Immigration agency when requested; or
(b) a bona fide private education institution; or
(c) an independent fee paying school outside the maintained sector which maintains satisfactory records of enrolment and attendance of students and supplies these to the Border and Immigration Agency when requested; and
(ii) is able and intends to follow either:
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a recognised full-time degree course or post graduate studies at a publicly funded institution of further or higher education; or
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a period of study and or research in excess of six months at a publicly funded institution or higher education where this forms part of an overseas degree course, or
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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
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a full-time course of study at an independent fee paying school; and…
(iv) if he has been accepted to study externally for a degree at a private institution, he is also registered as an external student with the UK degree awarding body ….”
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The Appellant’s proposal was to attend a private college for a course which led to a degree awarded by a degree awarding body which is not a UK degree awarding body. The Immigration Judge appears to have taken the view that under those circumstances the Appellant could not meet the requirements of subparagraph (iv), because he is not registered as an external student with any UK degree awarding body.
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Mr Corden said that the terms of subparagraph (iv) were very unclear. He asked us to read it as though the word “the” were replaced with “a”. If the subparagraph were amended in that way, it would be clear that any student seeking to prepare himself for a degree other than one awarded by the institution at which he was studying (for that is what an external degree is) would need to be registered for a degree with a UK degree awarding body.
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Although that alteration would bring clarity to the subparagraph, it is not easy to see that the clear meaning that would ensue is the meaning intended. There is no doubt that the reference to a “recognised full time degree course” in subparagraph (ii)(a) means a degree awarded by a recognised UK institution: YS and SJ [2006] UKAIT 00094. But the Appellant, like many thousands of overseas students, does not propose to study at a publicly funded institution of further or higher education. He proposes to study at a private college. If the proposed modification and reading of subparagraph (iv) is correct, it would have the effect that a course of studies at such a college would be permissible if undertaken by reference to a prospect of a UK degree, and equally permissible if undertaken without reference to any prospect of a degree, but impermissible if undertaken with reference to a degree awarded by a body outside the United Kingdom. We can see no conceivable policy for a rule in that form, and so would hesitate to adopt Mr Corden’s suggestion.
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If, however, the rule is read as it stands, the reference has to be to the UK degree awarding body that is part of the applicant’s proposal. If that is right then “degree” in the first phrase of the subparagraph means a UK degree, which is perhaps what one would expect in any event; and the whole subparagraph only applies to a person who intends to study for a UK degree at an institution other than that which awards the degree. The requirement itself then becomes entirely intelligible: the student must show not merely he has been accepted for the course, but also that he is registered for the degree. Those concepts, normally combined in the case of a course undertaken at a degree awarding institution, are separate in the case of external studies. The emphasis of subparagraph (iv) then shifts from an additional requirement of registration with a UK awarding body to emphasis on a requirement of registration with any UK degree awarding body involved in the application.
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That interpretation of the actual words of the rule would be entirely coherent. We recognise, that so interpreted, the rule allows study at a private institution in this country for a degree awarded by an overseas institution. That is not particularly surprising, even in the light of the decision of the Tribunal in YS and SJ, because that case was about a different requirement, that a course be at “degree level.” It is not surprising, because students who otherwise meet the requirements of the rules are allowed to come to this country in order to undertake courses that do not lead to a UK degree and it would be odd if it was more difficult for the same student to undertake the same course, if it led to a degree from an institution outside the United...
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