KM (definition of short course) Japan [2006] UKAIT 00014 (10 February 2006) [2006] UKAIT 00014

UKAIT
KM (definition of short course) Japan [2006] UKAIT 00014 (10 February 2006)
[2006] UKAIT 00014 · 2006-02-10
[1]KM (definition of short course) Japan [2006] UKAIT 00014 ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 23 January 2006 Date Determination notified: 10 February 2006 Before MR G WARR (SENIOR IMMIGRATION JUDGE) MR R CHALKLEY (SENIOR IMMIGRATION JUDGE) Between APPELLANT and Secretary of State for the Home Department RESPONDENT For the Appellant: Mr A Kaihiva (Kaihiva & Co.) For the Respondent: Mr P Alleyne, Home Office Presenting Officer DETERMINATION AND REASONS A course of one year's duration is not a short course as defined in paragraph 60(vi) of HC 395. The appellant is a citizen of Japan. She was given leave to enter the United Kingdom on 6 March 2003 in the capacity of student. She was granted leave until 31 December 2003. Her leave was extended until 31 January 2005. On 25 January 2005 she made an application for further leave to remain as a student of English to study the Cambridge IELTS examination at the Natural English Conversation School. Her application was refused on 9 February 2005.[2]In the original ground of refusal the Secretary of State took the point that the school had not been registered on the relevant list. However, the Secretary of State in his explanatory statement said that the point could now be disregarded. No point on the matter has been relied upon before us.[3]The live issues before the Immigration Judge (Mr M.B. Hussain) who allowed the appellant's appeal, were the questions raised in paragraph 3 of the explanatory statement. It was contended that the appellant had only undertaken short courses below degree level. The Secretary of State was not satisfied that the appellant would not, as a result of an extension of stay, spend more than two years on short courses below degree level. It was also contended that the appellant did not provide evidence of satisfactory progress in her course of study, including the taking and passing of any relevant examinations. The decision under appeal is dated 9 February 2005.[4]The appellant was unrepresented at the hearing before the Immigration Judge. The Immigration Judge did not accept the Secretary of State's claim that the appellant had not made satisfactory progress in her studies. The appellant's evidence, which the Secretary of State did not dispute, was that she had begun by studying a general English language course and had now got herself prepared to sit for an IELTS examination. In the Immigration Judge's judgement the appellant had made sufficient progress to bring her to the position she was in during the two years she had been studying in the United Kingdom. There is no appeal against that aspect of the Immigration Judge's decision.[5]The Immigration

Judge dealt with the short course argument as follows:

'The respondent argued that if the appellant was granted a further extension of leave then she would have spent more than two years on short courses below degree level. However, by the date of his decision, namely 9 February 2005, the appellant would have been short of a month before the two year [period] was up. Therefore, I find that his decision is not in accordance with the rules.'
[6]In the grounds of appeal settled by the Secretary of State it was submitted that the date of the Secretary of State's decision was not the deciding factor under the relevant Immigration Rule. The question was whether, if an extension were granted, the appellant would have spent more than two years on short courses at the end of such leave.[7]At the hearing before us, we noted that the appellant had been enrolled on a Cambridge IELTS examination course and had paid her school fees for a period of one year according to the enrolment confirmation supplied to the appellant and dated 17 January 2005. The letter makes it clear that the appellant would be enrolled for one calendar year as a full time student, commencing on 24 January 2005 and her registration would expire on 23 January 2006.[8]We noted that paragraph 60(vi), as amended by Cm. 4339, provides that it is a requirement for an extension of stay as a student that the appellant 'would not, as a result of an extension of stay, spend more than two years on short courses below degree level (i.e. courses of less than one year's duration, or longer courses broken off before completion) ...'[9]We raised with Mr Alleyne the question whether in the circumstances of the definition the appellant had enrolled on a short course at all. We put the case back to enable Mr Alleyne to consider the point. Mr Alleyne, on the court resuming, submitted that while the interpretation based upon the rule by the Tribunal might be correct, he was not instructed to withdraw the Secretary of State's appeal because of the uncertainty of the meaning of the definition. The case depended upon the point because there was nothing in the other ground of appeal where it was argued that the Immigration Judge had relied on the wrong rule.[10]At the conclusion of the submissions we reserved our decision. The relevant rule appears to us to be perfectly clear. Short courses are defined as courses of less than one year's duration. If it had been intended to catch the course on which the student had embarked the rule would have defined short courses as courses of one year's duration or less. Mr Alleyne advanced no argument before us beyond submitting that the rule was not clear and we find it perfectly clear. Neither side referred us to WR [2005] UKAIT 00170 where the Tribunal considered the proper construction of paragraph 60(vi) prior to its amendment by Cm. 6339. In that case the Tribunal accepted the submission from the Home Office Presenting Officer that the total period of study was to be taken as the calendar year and was not to be restricted to the (shorter) academic year in which the course was studied. The requirement of paragraph (vi) was "concerned only with an individual's immigration status as a student on short courses and not with the minutiae of calculating time actually spent studying." In that case the appellant was indisputably engaged on short courses. The Tribunal was not concerned with the question that arises in this case, which is whether a one year course is a short course at all. In this case the evidence is that the appellant was engaged as a full time student (with daily tutorials Monday to Friday) for a one year period. Such a course is not, in our judgment, a short course as defined.[11]We are also clear that the Immigration Judge misdirected himself in finding that the date of decision was the relevant date, but that was immaterial given that the rule did not apply to the appellant since she was not embarked on a short course. Accordingly, it would not follow that as a result of any extension the appellant would infringe the two year rule provided by paragraph 60(vi) when one bears in mind the definition of short course.[12]The Immigration Judge determined the question of satisfactory progress in favour of the appellant. There has been no appeal against that aspect of the Immigration Judge's decision. Although the Immigration Judge misdirected himself on the question of the relevant date when assessing whether the appellant fulfilled the requirements of paragraph 60(vi) of the Immigration Rules, the error was not material since the appellant was not embarked upon a short course and would not fall foul of paragraph 60(vi).[13]Although the Immigration Judge made an error in his construction of the relevant rules, the error was not material and accordingly we direct that the decision of the Immigration Judge shall stand. Signed Date 8 February 2006 G Warr Senior Immigration Judge

Cited in 1 later judgment