Education – Courses – Examinations – Extensions of time – Leave to remain – Students

G Omerenma Obed & 7 Ors v Secretary of State for the Home Department: CA (Civ Div) (Lords Justice Sedley, Longmore, Moses): 1 July 2008

In conjoined appeals, the appellants (O), who had each been given leave to enter or remain in the UK as students, appealed against decisions of the Asylum and Immigration Tribunal, refusing to renew their leave.

Leave had been refused because in each case the students had either failed examinations or changed ­courses. In each case, the tribunal found that they had not shown that they had made satisfactory progress in their courses of study within the meaning of rule 60(v) of the Immigration Rules.

The court had to ascertain the legal consequences of a situation in which a foreign student who had obtained leave to enter or remain to follow a named course embarked on a ­different course or failed the course examinations.

Held: (1) A student who abandoned or was excluded from his course or who enrolled at an unrecognised ­institution could succeed in lawfully remaining in the UK for the duration of his leave, provided he continued to comply with restrictions on any employment he took, and provided the leave was not in the meantime revoked. Rule 60(v) was ambiguous, but the court could not adopt the construction decided on in TY (Burma) v Secretary of State for the Home Department [2007] UKAIT 7 and JJ (Gambia) v Secretary of State for the Home Department [2007] UKAIT 50, TY and JJ disapproved, R (on the ­application of Zhou) v Secretary of State for the Home Department [2003] EWCA Civ 51, [2003] INLR 211 applied.

Section 3 of the Immigration Act 1971 made general provision for the regulation or control of immigration but gave the secretary of state no authority to impose conditions on a student entrant as to the course he was to follow. Moreover, an ­examination of the entry clearance forms for leave to remain as a student showed that the information on which the secretary of state decided ­applications to enter as a student ­contemplated that the entrant might progress from one course to another. The information required did not ­suggest that entry was conditional on not changing courses and clearly ­contemplated the possibility that the student might not continue, or even embark on, the course for which he was admitted.

Even if the rules were predicated on the student’s pursuit of a single course of study, that did not have to mean a single, pre-determined course. It could still intelligibly mean whichever course of study the student had settled on.

(2) The meaning of rule 60(v) was that a student who wanted an extension of stay had to be able to produce ­evidence of satisfactory progress, whether on the course named in his application or entry clearance or on another recognised course that he had undertaken. A failure to sit or 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 consistent with satisfactory progress, rule 60(v) would be satisfied. The approach of Woolf J in R v Immigration Appeal Tribunal Ex parte Bahman Gerami [1981] Imm AR 187 IAT, namely that lack of exam success went to ­discretion rather than being a condition precedent to a successful ­application, made such sense that it would take clear words to displace it. In that regard, rule 60(v) was by no means clear, Gerami applied, SW (Jamaica) v Secretary of State for the Home Department [2006] UKAIT 54 considered. It would take very explicit words to lay down that a student who had attended all lectures and seminars, and had produced excellent course work, had not made ­satisfactory progress because he was too ill to sit his examinations.

In approving the Immigration Rules pursuant to section 3(2) of the 1971 Act, Parliament could not have thought that it was sanctioning, in such ­circumstances, the termination of a prospective career in which the ­student had invested. All but one of the appeals was allowed.

Appeals allowed in part.

N Padfield QC, A Khan (instructed by N C Brothers & Co) for the first ­appellant; the second appellant appeared in person; S Juss (instructed by Malik Law) for the third, fifth and sixth appellants; S Bassiri-Dezfouli (instructed by Francis MacFoy) for the fourth ­appellant; V Onuegbu ­(instructed by Ovo) for the seventh appellant; I Macdonald QC, M Rupasinghe (instructed by Chipatiso & Co) for the eighth appellant; I Hutton (instructed by the Treasury Solicitor) for the respondent.