AW (Bangladesh) v Secretary of State for the Home Department [2009] EWCA Civ 703

Case No C5/2009/2694[2009] EWCA Civ 703
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No IA/07838/2008]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday, 8 th June 2009
Before
LORD JUSTICE CARNWATHLORD JUSTICE TOULSONLORD JUSTICE GOLDRING
Between
AW (BANGLADESH)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr M Slater (instructed by Abu Naser Wahed) appeared for Appellant.Ms L Busch (instructed by Treasury Solicitors) appeared for Respondent.
Judgment
[1]This is a renewed application for permission to appeal which was adjourned to a hearing by Moore-Bick LJ. The applicant is seeking to overturn a decision that he is not entitled to further leave to remain in the UK as a student. The relevant rules which are in play are rule 65, by which one of the requirements for an extension of stay as a student is that the applicant “(v) can show evidence of satisfactory progress in his course of study including the taking and passing of any relevant examinations.” and rule 60(ii) which requires that:
“he meets the requirements for admission as a student set out in paragraphs 57(i)-(viii).”
There is rule in play here is 57(vi) that “he intends to leave the United Kingdom at the end of his studies”.[2]The applicant is a citizen of Bangladesh. He came to the UK in August 2001 with a valid student entry clearance from August 2001 to August 2003. He enrolled at Loughborough College and in June 2002 successfully completed four GCSEs including GCSE in maths. In June 2003 he successfully completed with good grades the first year of a full-time AVC (that is Advance Vocational Certification) Business and AS Level Computing Course.[3]On 4 August 2003 he was granted an extension of stay as a student up to 30 October 2004. In June 2004 he successfully completed the AVC business course. On 4 December 2004 he was granted an extension of stay until 30 September 2006. He studied the level 5 Higher National Diploma in Business Studies at Loughborough College. In June 2006 he completed his two years HND in Business Studies with good grades. Following completion of that he was accepted by the University of Derby for the final year of its BA Hons course in Business Management for the academic year 2006 to 2007, due to finish in July 2007, with an expected graduation date in January 2008.[4]Unfortunately, he did not complete that course. He left Derby University in October 2006 and he then enrolled at St Peter’s College in London where he started on a course for a diploma in Hardware and Networking which he completed in September 2007. He then applied in November 2007 for an extension of stay in order to study at St Peter’s College for a BSc business degree awarded by the University of London. He has more recently applied to DeMontfort University, Leicester, with a view to registering for the Graduate Certificate in International Business programme commencing in December 2008.[5]At this point his application was refused. The Secretary of State’s letter, dated 8 April 2008, noted that, having been granted permission to remain as a student for the University of Derby’s final year, he had then changed courses for reasons he has provided:
“However, you have not completed any of the assessable material counting towards the degree result at Derby University or sought an alternative university offering the same or similar degree award to be completed within the minimum time frame. Prior to completion of your chosen degree you had successfully achieved a diploma pass in Hardware Networking. The Secretary of State is satisfied that this course is available on a part-time evening basis which would allow you to fit this study around the rest of your degree programme. In view of the above the Secretary of State does not recognise your certificate award as evidence of satisfactory progress in your course of study, [including the taking and passing of any relevant examinations].”
[6]Thus it was held that he did not satisfy rule 65(v). The letter then went on:
“You were initially admitted to the UK on 15 August 2001.You were expected to complete your degree in July 2007 and graduate in 2008. You had declared further intentions of pursuing a Masters in Business Management. Thus, approximately, concluding your studies during the academic year 2009. In view of the fact that you were initially admitted to the UK as a student, on 15 August 2001, and you have intentions of protracting your studies to be completed in 2011, it has been decided that you have not satisfactorily shown that you intend to leave the United Kingdom at the end of your studies.”
So that brought into play the other rule I have mentioned.[7]Since that refusal a great deal of judicial energy has been expended on this case. The matter went before Immigration Judge North who dismissed the appeal in June 2008. A reconsideration of that was sought and directed by Senior Immigration Judge Walmsley, having regard to the decision of this court in a case called GOO & Others vSSHD [2008] EWCA Civ 74, to which I will come. It was then held by consent that there had been a material error of law and reconsideration was directed. The matter then came before Judge Coates, who gave his decision in September 2008, and he rejected the appeal on both rules. SIJ Chalkley refused permission to appeal in October 2008. Longmore LJ refused permission on the papers in January 2009, but then in February Moore-Bick LJ, having heard the appellant in person, ordered that the matter be adjourned on notice. And so it comes to us.[8]Judge Coates’ decision, which is under challenge, deals very fully with the evidence and the background. There was quite a lot of discussion as to why the applicant had left the Derby course. At various times different reasons had been given, one of which was that the course was not suitable; the other was that he had been bullied to some extent. That had been one of the reasons why the appeal had failed before Judge North, because he did not accept the applicant’s account. Before Judge Coates the matter was looked at afresh. He found, at paragraph 26, having given consideration to all the evidence, both oral and documentary, that:
“The appellant’s claim to have left the university on account of bullying was not credible.”
He explained why that was the case. Mr Slater, who has appeared for the applicant, fairly accepts that that is a finding of fact which he cannot challenge.[9]At paragraph 35 he referred to the decision of the Court of Appeal in GOO and clearly understood that the effect of that decision is that it is open to students to change their courses, and the fact that they have changed the course is not evidence that they failed to make satisfactory progress. But

the judge added :

“Nonetheless, one still has to make an evaluation of whether there has been satisfactory progress.”
[10]He continued at paragraph 36:
“The Appellant has abandoned a degree course at Derby University after only four weeks of study for reasons which I do not accept as credible. Having reverted to a less demanding diploma course the Appellant is now proposing to switch courses yet again. I am satisfied that the Appellant is motivated by a desire to remain permanently in the United Kingdom and I consider it to be of significance that his most recent proposal would result in him having accumulated ten years’ lawful residence in the United Kingdom”
He concludedd that appeal failed on both of the relevant rules.[11]Mr Slater has helpfully and clearly argued this case. The heart of his submission is that the effect of the judge’s decision is to apply a significantly higher test for what is satisfactory progress than is at least implicit in the judgment of this court in GOO. He has referred us to parts of the judgment. The judgment there was a judgment of the court given by Sedley LJ, sitting with Longmore and Moses LLJ. The issue and the ratio of the decision appear from paragraph 31:
“The meaning of r 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 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, r 60(v) was satisfied.”
[12]As I understand it, that is really dealing with a relatively narrow point. That is that, in looking at satisfactory progress, one should not confine oneself to the course to which the student was admitted, but also take into account the fact that there may be good reasons for changing it, and therefore look at the position overall, including his record on any other course he has undertaken. One sees that, for example, from the decision in HZ (one of the cases considered at the same time), where it was held that the Senior Immigration Judge had made a material error of law because he thought he should only focus on the course of study for which the student was last granted leave, rather than having regard to his success in any subsequent course.[13]That, to my mind, with respect, is all that case decides as a matter of law. Mr Slater has referred us to the facts of the various cases which were reviewed at the end of the judgment and, as I say, he suggested that they imply a lower standard than is being applied here. However; I do not think it is enough to demonstrate an error of law to show that this particular immigration judge’s decision is, or may be, less or more generous than that of another.[14]However, it is unnecessary to reach a final view on that because there is an alternative basis of decision, which was flagged up by the original decision letter and which was upheld by the immigration judge. That concernsthe intention to leave at the end of the period. There is a clear finding which, Mr Slater accepts, the judge was entitled to make. In that context, of course, his view of the credibility of the reasons given for leaving the Derby course were undoubtedly material, as was the overall position.[15]To sum up, I am not convinced that there are any grounds for thinking the judge went wrong on the rule 65(v) point; but, even if that point were thought to be arguable, it seems to me wholly unarguable that he went wrong in law on the issue of intent at the end of the period. Therefore I would refuse permission.[16]I agree.[17]I also agree.

Order

Application refused