RS (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 434

[2011] EWCA Civ 434Case No C5/2010/2385IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
SENIOR IMMIGRATION JUDGE WAUMSLEY
IA/03747/2010
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/04/2011
Before
LORD JUSTICE CARNWATHLORD JUSTICE PATTENMRS JUSTICE BARON
Between
RS (Pakistan)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Mr Zane Malik (instructed by Malik Law) for AppellantMr David Manknell (instructed by Treasury Solicitors) for RespondentHearing Hearing date : 23rd March 2011
Judgment
[1]This is an appeal by Mr Raja Imran Sattar (“the Appellant”) against the determination of Senior Immigration Judge Waumsley sitting in the Upper Tribunal (Immigration and Asylum Chamber) promulgated on 2 September 2010. The Appeal relates to the proper interpretation of Paragraph 120 of Appendix A of the Immigration Rules (HC 395) (the “Rules”). The Appellant seeks leave to remain in the United Kingdom as a student whilst waiting to take the re-sits of the examinations (which he failed in June 2009) without the necessity of attending any accredited course of study during that period.

The Law

[2]Paragraph 245ZX of the Immigration Rules provides that: To qualify for leave to remain as a Tier 4 (General) Student under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the applicant will be refused. Requirements: …(c) The applicant must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A…[3]Appendix A provides that: 119. If the applicant is re-sitting examinations or repeating a module of a course, the applicant must not previously have re-sat the same examination or repeated the same module more than once, unless the Sponsor is a Highly Trusted Sponsor. If this requirement is not met then no points will be awarded for the Confirmation of Acceptance for Studies, unless the Sponsor is a Highly Trusted Sponsor. 120. Points will only be awarded for a Confirmation of Acceptance for Studies (even if all the above requirements are met) if the course in respect of which it is issued meets each of the following requirements:(a) The course must meet the United Kingdom Border Agency’s minimum academic requirements, as set out in sponsor guidance published by the United Kingdom Border Agency and the level of course that a Sponsor may offer will depend on whether the Sponsor is a Highly Trusted Sponsor.(b) The course must, except in the case of a pre-sessional course, lead to an approved qualification as defined in sponsor guidance published by the United Kingdom Border Agency.(c) Other than when the applicant is actually on a work placement, all study that forms part of the course must take place on the premises of the sponsoring educational institution.(d) The course must meet one of the following requirements: i. be a full time course of degree level study that leads to an approved qualification as defined in UKBA guidance; ii. be an overseas course of degree level study that is recognised as being equivalent to a United Kingdom Higher Education course and is being provided by an overseas Higher Education Institution; iii. be a full time course of study involving a minimum of 15 hours per week organised daytime study and, except in the case of a pre-sessional course, lead to an approved qualification, as defined in guidance published by the United Kingdom Border Agency, below bachelor degree level. 4. Rule 245ZY ensures that, in addition to the period of leave granted for the duration of the course itself, there is an additional period of leave to remain totalling 4 months (in the case of a 12 month course) or 2 months (for a 6 month course) after completion of the course. Normally this provision would give a sufficient period of grace within which the candidate would have an opportunity either (i) to plan their future once their results were known or (ii) to take any necessary re-sits. In the Appellant’s case this provision would have enabled him to take the necessary examinations without requiring further leave as they were scheduled for August 2009.[5]Under the terms of the current Rules a student is entitled to the necessary 30 points if he attends a qualifying course. The present scheme envisages that a university or other accredited place of education will operate as the student’s sponsor. As such the educational establishment is required to provide a visa letter/letter of confirmation which affirms the student’s acceptance on a course which complies with the Rules.[6]The sponsor is obliged to monitor the student’s attendance and progress and inform the Secretary of State for the Home Department (“SSHD”) if the student fails to comply with course requirements and/or fails to make sufficient progress.[7]Originally this case (and, therefore, this consequential Appeal) was dealt with under the provisions of subsection (d)(iii) above. However, given that the training was a Graduate Diploma in Law (prima facie, a post graduate qualification), the SSHD reformulated its approach and provided a new ruling under subsection (d)(i) above. This later interpretation would appear to be correct given that the qualification sought by the Appellant could not be termed to be “below bachelor level” for the purposes of paragraph 120(d)(iii). In the circumstances an adjournment of the Appeal was posited. However, Counsel for the Appellant conceded that, given the precisely similar wording in each of the two provisions in sub Rule (d)(i) and (iii), if the Appellant failed to establish his case under subsection (d)(iii) he would also fail under subsection (d)(i). In the light of this the Court decided that it would determine this Appeal because it would resolve any potential arguments concerning the second ruling made by the SSHD.

The Factual Matrix

[8]The Appellant is a citizen of Pakistan, born on 29 August 1978. He arrived in the United Kingdom on 31 December 2004 with entry clearance as a student until 30 April 2006. On 25 May 2006 he was granted further leave to remain as a student until 31 October 2009.[9]The Appellant undertook a graduate diploma at the BPP Law School from 1 September 2008 to 26 June 2009. He failed the examinations and was due to re-sit them in August 2009. Unfortunately, he could not do so because he was unwell. A concession was, therefore, granted by BPP which permitted him to re-sit the examinations between 17 May 2010 and 7 June 2010.[10]In the light of this delay, on 28 October 2009, the Appellant made an application for leave to remain as a Tier 4 (General) Student to re-sit his examinations. This was refused by the SSHD in a decision letter dated 24 December 2009 on the grounds that the Appellant was not attending a course which satisfied the requirement of a minimum of 15 hours per week organised daytime study pursuant to paragraph 120(d)(iii) of Appendix A to the Rules.[11]By an email dated 21 December 2009, BPP confirmed that the Appellant was not attending classes because his course had ended. However it was stated that he was required to re-sit the examinations in May/June 2010. The Appellant considered that this requirement was sufficient to establish compliance with the Rules. In effect he wished to remain in the United Kingdom for at least 7 months until his re-sits on the basis that, in the intervening period, he was not required to attend any qualifying course.[12]The Appellant accepts that he had no intention of attending any BPP training in 2009-10. In fact, he did not wish to repeat (and pay for) any accredited course of study during that academic year.[13]The original adverse decision made by the SSHD was appealed and the matter came before Immigration Judge Meates on 29 March 2010. The Appellant was unrepresented. He confirmed that he was not attending any classes but maintained that he was engaged in private study in preparation for his re-sits in May / June 2010.[14]In a determination promulgated on 7 April 2010, IJ Meates dismissed his appeal on the basis that he was unable to demonstrate that he had met the requirements of paragraph 120(d)(iii). That decision was itself appealed.[15]On 19 August 2010 the further appeal was heard before Senior Immigration Judge Waumsley. He concluded that paragraph 120(d)(iii) was intended only to cover a current course of study rather than any previous course which had been undertaken without success.[16]Despite the expectation that the Appellant would take his examinations in 2010, the BPP subsequently confirmed to the SSHD that the Appellant had not attended on the due examination dates but had chosen to defer his re-sits for another year, that is until May / June 2011. BPP also reported that he had not attended any of the free revision classes for those undertaking re-sits nor had he engaged in any formal/informal teaching since September 2009.[17]The reason for the Appellant’s deferral of the necessary examinations is not known. Indeed, before this Court Counsel on his behalf did not have current information about his client save that (as is permitted for this category of student) he was working some 20 hours a week.

The Grounds of Appeal

[18]The first Ground of Appeal is that the Court should apply a purposive construction of the Rules, based on the view that foreign students should be encouraged to come to the United Kingdom and that any interpretation of the Rules that would militate against this should be avoided.[19]I note that the previous Guidance stated “22. RE-SITS OF EXAMINATIONS …………Where an otherwise acceptable student has to re-sit an examination he may not need or be permitted by the college to attend further classes. In such cases leave may be granted on code 2 to cover the period of the first available re-sit plus an additional 2 months to allow time for the results to be received, provided that the college concerned confirms the situation and that there is no doubt as to the student's intention to leave the country on completion of his studies. Leave to remain (or leave to enter after a short absence abroad) to re-sit an examination without being enrolled on a full time course should be granted once only.” Mr Malik, on behalf of the Appellant, submitted that the new rules should construed in the context of that apparently more favourable regime and argued that the new provisions had to be understood in that context. He pointed to Paragraph 69E of the previous rules which specifically dealt with re-sits:
“An extension of stay to re-sit an examination may be granted for a period sufficient to enable the applicant to re-sit the examination at the first available opportunity, subject to the restriction on his freedom to take employment, provided that the Secretary of State is satisfied that the applicant meets the requirements of 69D.”
Under those regulations (i) the student was expected to re-sit the examination at the first available opportunity and (ii) the student’s rights to pursue employment whilst in the United Kingdom were restricted. So to that extent the previous Rules were, to my mind, less favourable. …………Where an otherwise acceptable student has to re-sit an examination he may not need or be permitted by the college to attend further classes. In such cases leave may be granted on code 2 to cover the period of the first available re-sit plus an additional 2 months to allow time for the results to be received, provided that the college concerned confirms the situation and that there is no doubt as to the student's intention to leave the country on completion of his studies. Leave to remain (or leave to enter after a short absence abroad) to re-sit an examination without being enrolled on a full time course should be granted once only.” “An extension of stay to re-sit an examination may be granted for a period sufficient to enable the applicant to re-sit the examination at the first available opportunity, subject to the restriction on his freedom to take employment, provided that the Secretary of State is satisfied that the applicant meets the requirements of 69D.”[20]He also relied upon paragraphs 69A and D which provided, inter alia: Paragraph 69A “Requirements to enter to re-sit an examination” The requirements to be met by a person seeking leave to enter the United Kingdom in order to re-sit an examination are that the applicant:(i) (a) meets the requirements for admission as a student set out in paragraphs 57 (i) – (viii); or (b) met the requirements for admission as student set out in paragraph 57 (i) – (iii) in the previous academic year and continues to meet the requirements of paragraph 57 (iv) – (vii); save, for the purpose of paragraph (i) (a) or (b) above, where leave was last granted in accordance with paragraph 57 – 62 of these Rules before the 30 November2007, the requirements paragraph 57 (v) do not apply; and(ii) has produced written confirmation from the educational institution or independent fee paying school which he attends or attended in the previous academic year that he is required to re-sit an examination; and(iii) can provide satisfactory evidence of regular attendance during any course which he has already begun; or any other course for which he has been enrolled in the past; and(iv) had not come to end of a period of government or international scholarship agency sponsorship, or has the written consent of his official sponsor for a further period of study in the UNITED KINGDOM and satisfactory evidence that sufficient sponsorship funding is available; and(v) has not previously been granted leave to re-sit the examination.

(i) – (v)

[21]Mr Malik highlighted the fact that, under defunct paragraph 57, any person seeking leave to enter or remain in the United Kingdom had to show to the satisfaction of the SSHD, inter alia, that he was able and intended to follow a bona fide course of study, had the ability so to do and could provide evidence of regular attendance. In short, as Mr Malik put it, the applicant had to demonstrate “intention, ability, attendance and progress”.[22]He prayed in aid the fact that, under the new rules:(i) the supervisory role in relation to “intention, ability, attendance and progress” (previously assumed by the SSHD) had been delegated to the educational establishments themselves;(ii) as sponsors, they were obliged to provide the necessary visa letters/letter of confirmation to satisfy the 30 points entry criteria introduced under the new rules and(iii) they had a supervisory role and were obliged to inform SSHD if the student failed to attend or make proper progress on the course.[23]Mr Malik pointed to the current Guidance for Sponsor Applications for Tier 4 of the points based system and in particular paragraph 258 which provides: “Students are allowed to re-sit examinations or repeat any part of their course up to two times per individual examination or module. If the student’s leave expires before he/she has finished the re-sit or repeated the appropriate studies he/she must make an application to extend his/her leave before his/her current grant of leave expires. Where the student has to do a re-sit or repeat a module of study sponsors must decide based on their knowledge of the student and their assessment of his/her ability to pass the course, whether or not it is appropriate to continue sponsoring him/her”.[24]In this case the sponsor’s letter indicated that the student was required to retake his examinations. In the light of this, Mr Malik asserts that, if BBP, as the Appellant’s sponsor, were content to provide the necessary visa letter that was “an end of the matter” because BPP obviously considered him to be a bona fide student. Consequently any reference in the Rules to a full time course of study could only relate to the previous full time course which had already been completed and, of necessity, the Appellant satisfied the test under paragraph 120(d)(iii) of Appendix A.[25]The same reasoning would follow and apply under subparagraph (d)(i).[26]In conclusion, he submits that, because BPP gave the Appellant the necessary letter of confirmation/visa letter, the Institution must have considered him to be a proper worthwhile candidate and this supports his argument that their sponsorship of him suffices for immigration purposes.[27]Paragraph 259 of the current Guidance states: “It is appropriate for a Tier 4 sponsor to continue its sponsorship of a student throughout the re-sit or repeat period, where the Tier 4 sponsor requires the student’s continued participation, and where the Tier 4 sponsor is confident that it will be able to meet its sponsor’s duties with respect to that student during the re-sit or repeat period. Where the Tier 4 sponsor does not require the students continued participation within 60 days of the start of next academic period (with the exception of recognised institutional vacation periods) the Tier 4 should not continue to sponsor the student. Where the student has continuing leave but the Tier 4 sponsor does not require participation during this 60 day period, the Tier 4 sponsor should notify the U K Border Agency of this and advise the student to leave the United Kingdom. If the student’s leave is due to expire and the Tier 4 sponsor does not require continuing participation within 60 days of the start of the next academic period the Tier 4 sponsor should not issue a visa letter or confirmation of acceptance of studies and the student should make arrangements to leave the UK. The Tier 4 sponsors may then, at a later point, issue a visa letter or confirmation of acceptance for studies which the student may use on his/her application to return to the UK. Mr Malik submitted that this paragraph contains essentially self serving verbiage which cannot, of itself, override a proper construction of the Rules. In particular he drew attention to the 60 day time limit within the guidance which bore no relationship to any rule. I see some force in the final part of that submission but not the remainder because the guidance gives pellucid confirmation of the Rule and of the reasoning behind the new regime.[28]I accept the proposition that the proper approach to the construction of the Rules is to use a more liberal approach than that used for the interpretation of Statute. I have regard to the decision in Mahad & others v Entry Clearance Officer [2009] UKSC 16, in which Lord Brown stated at paragraph 10:
“The [Immigration] Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy”
. However that does not mean that construction should be strained beyond the reasonable boundaries for the use of language and meaning.[29]The Appellant also placed reliance upon the sentiments expressed in GOO & others v SSHD [2008] EWCA Civ 747 and the observation of

Lord Justice Sedley (with whose judgment Longmore and Moses LJJ agreed) at paragraph 4 that:

“…it is relevant to recall that the admission of foreign nationals to study here is not an act of grace. Not only does it help to maintain English as the world’s principal language of commerce, law and science; it furnishes a source of revenue… We therefore find it unsurprising that the legislation and rules, correctly construed, do not place arbitrary or unnecessary restrictions on what foreign students can study here.”
Of course, I accept that foreign students are welcomed to the United Kingdom but the Rules, prima facie, require them (and always have required them) to be bona fide students who need to be within the United Kingdom to enable them to work at an accredited educational establishment sited within the jurisdiction.[30]I do not accept that the previous rules assist the Court with the interpretation of the new Rules or the current underlying immigration scheme because they are different. In some ways the current Rules are more favourable to students because, for example, they are permitted to work but the quid pro quo is the stricter requirement to demonstrate a need to be enrolled in and attend a full time course.[31]The second Ground of Appeal is that, on its true interpretation, Rule 120 read in context with Rule 119, means that a student seeking leave to re-sit an examination is not required to demonstrate that he has to repeat his course or take a new course. To support this, Mr Malik pointed to the provision of Rule 119 which states “If the applicant is re-sitting examinations or repeating a module of a course, the applicant must not previously have re-sat the same examination or repeated the same module more than once…” It is asserted that the specific inclusion of the word “or” means that it is not necessary for the student to undertake both. Accordingly, it is submitted, SIJ Waumsley’s interpretation of paragraph 120(d)(iii) cannot be correct because it effectively abolishes the critical distinction between those re-sitting examinations and those repeating a module of a course given that the effect of his ruling is that students taking re-sits are obliged to repeat modules thus defeating the purpose of the word “or” within Rule 119.[32]This argument is untenable because the use of the disjunctive in the context of Rule 119 is referable only to the two distinct situations where the student is permitted to repeat different parts of his work on but one occasion. In logic, it does not follow that that Rule should be read down into Rule 120 so as to give the latter a meaning which, in ordinary language, it does not have. Moreover the Rule does not necessarily require the repetition of a module because the Rule is not prescriptive about the course provided that the student takes a course which conforms with the Rule.[33]Rule 120 makes it clear that a student taking a re-sit can remain within the United Kingdom provided that he needs to be within the jurisdiction because he is working on an accredited course of study. If the student is not on such a course then, in reality, he can return to his country of origin and study there without difficulty, provided that he can return to the United Kingdom in good time to take his re-sit examinations.[34]Mr Malik submitted that re-entry was/is impossible because the Rules do not permit it. He points to the terms of Rule 56K which set out the requirements to be met by a student visitor. The Rule provides that entry will only be granted for a student who “is genuinely seeking entry as student visitor for a limited period as stated by him, not exceeding six months”. Sub rule (ii) provides (so far as relevant for this appeal) that the requirements are met provided that the student “(ii)has been accepted on a course of study which is to be provided by institution which is:(i) the holder of a Sponsor Licence for Tier 4 of the Points based system(ii) accredited by a UKBA approved accreditation body(iii) intends to leave the UK at the end of his visit as stated by him (iv ) does not intend to take employment in the UK: and (v) does not intend to engage in business, to produce goods and services within the UK, including the selling of goods and services to the public; and…. (vii) will maintain and accommodate himself….. without recourse to public funds (viii) can meet the cost of the return or outward journey…. (i) the holder of a Sponsor Licence for Tier 4 of the Points based system (ii) accredited by a UKBA approved accreditation body[35]At first blush it is not clear that this Rule automatically permits a student to return. However the written submissions of Counsel on behalf of the SSHD stated and I quote: “If the student is not engaged in a suitably full-time course of study prior to his re-sits, then he does not need to remain in the UK in order to re-take his exams. Such a student (including the Appellant) should return to his home country before the expiry of his leave, but may then apply from that country for a Student Visitor visa under Rule 56K in order to return to take his re-sits. A Student Visitor visa has less onerous application criteria, but places stronger restrictions on the student (no employment, no work experience, no dependants, the need to apply from overseas, no switching and a mandatory return overseas after their leave expires). Such a visa is a perfectly reasonable option for a student who does not need to continue studying in the UK on a full-time basis, but simply needs to re-take his exams, as here, several months or a year after he has completed his course”.[36]In oral submissions Mr Manknell, for the SSHD, confirmed that the Department’s position that re-entry for the purpose of a re-sit is not only acceptable but is customarily accepted under the terms of Rule 56K. The Court sees no reason to question that statement of practice, which rightly acknowledges the need for provision to deal with this issue.[37]In any event, I have come to the clear conclusion that the Rules in question are not ambiguous. The Appellant does not qualify for leave because he is not engaged either in a full-time course or on a course that involves a minimum of 15 hours per week of daytime study. The effect of SIJ Waumsley’s interpretation does not give rise to absurdity nor make part of the Rules redundant in the way argued for by the Appellant. The overall effect is that a student, who has failed his examinations, can either engage on any study course which meets the Rule 120 requirements (full-time/ 15 hours minimum) whether that is by way of revision/refresher courses for his re-sit examinations or appropriate additional studies or he can leave the United Kingdom, apply from his home country for a Student Visitor visa and return to take his examinations.[38]The Appellant’s construction of the Rules would permit any applicant to obtain leave to remain year after year for so long as he/she chose to defer the examinations. During this period the student would not have to study anything but could work for 20 hours per week. That scenario has occurred in this case and it exposes the fundamental flaw in the Appellant’s argument. I am certain that the Rules were not designed to enablea student who fails his exams to remain indefinitely in the United Kingdom, with the freedom to work, unless and until he chooses to take/pass his re-sit examinations.[39]For all those reasons I would dismiss this Appeal.[40]I agree.[41]I also agree.