CT v The Secretary of State for the Home Department [2008] UKAIT 10

[2008] UKAIT 00010

Asylum and Immigration Tribunal

Date 8 th January 2008

THE IMMIGRATION ACTS

Before

senior IMMIGRATION JUDGE SPENCER

Between

ctAppellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mr D Marrington, solicitor, of Alam Ahmed Immigration Advisers for appellant

Mr K Wood, Home Office presenting officer for respondent

A person who entered the United Kingdom with entry clearance as a short term student prior to 1 September 2007, although subject to a condition prohibiting work, was admitted to the United Kingdom in possession of a valid entry clearance in accordance with paragraph 57 of HC 395 and as a student not as a visitor.

DETERMINATION AND REASONS

[1]The appellant is a citizen of Cameroon, born on 5 February 1976. His appeal against the decision of the respondent, made on 5 September 2007, whereby she refused his application for further leave to remain in the United Kingdom as a student, was allowed after a hearing by Immigration Judge J S Law, in a determination promulgated on 26 October 2007. On 14 November 2007 Senior Immigration Judge Jordan ordered reconsideration for the following reasons: “1. I think the issue is whether the appellant was last admitted to the United Kingdom with a valid entry clearance in accordance with paragraphs 57 to 75M or paragraphs 82 to 87F. 2 By allowing the appeal, the Immigration Judge must have found that he had last been given entry clearance under one of the paragraphs referred to above but he failed to identify which one it was. Absent clear findings on this issue, the immigration Judge appears to have made an error of law. 3 It will be for the appellant to establish which part of the immigration rules, the appellant was last admitted. The appellant says he was admitted under paragraph 57 but what evidence was there before the immigration judge that the requirements (which requirements?) Were met? “

[2]Paragraph 60 of HC 395 as at the date of the decision read as follows:

“The requirements for an extension of stay as a student are that the applicant: (i)(a) was last admitted to the United Kingdom in possession of a valid student entry clearance in accordance with paragraphs 57-62 or valid prospective student entry clearance in accordance with paragraphs 82-87 of these Rules; or (b) has previously been granted leave to enter or remain in the United Kingdom to re-sit an examination in accordance with paragraphs 69A-69F of these Rules; or (c) if he has been accepted on a course of study at degree level or above, has previously been granted leave to enter or remain in the United Kingdom in accordance with paragraphs 87A-87F, 128-135, 135O-135T and 143A-143F of these Rules; or (d) has valid leave as a student in accordance with paragraphs 57-62 of these Rules; and. (ii) meets the requirements for admission as a student set out in paragraph 57 (i) - (vi); and (iii) has produced evidence of his enrolment on a course which meets the requirements of paragraph 57; and (iv) can produce 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 (v) can show evidence of satisfactory progress in his course of study including the taking and passing of any relevant examinations; and (vi) would not, as a result of an extension of stay, spend more than 2 years on short courses below degree level (ie courses of less than 1 years duration, or longer courses broken off before completion); and (vii) has not come to the 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.”

[3]The notice of immigration decision dated 5 September 2007 stated that in view of the fact that the appellant arrived in the United Kingdom on 2 July 2007 with entry clearance as a short-term student subject to code conditions prohibiting work or recourse to public funds, the Secretary of State was not satisfied that he was last admitted to the United Kingdom in possession of a valid entry clearance in accordance with paragraph 57-75M or 82-87F of the immigration rules or that he fell within any of the relevant exemptions from the requirements to have been admitted with entry clearance in paragraph 60(i). The notice of decision stated that the application was being refused because the appellant did not have a particular immigration document with reference to section 88(2)(b) of the Nationality, Immigration and Asylum Act 2002 and therefore his right to appeal was limited by operation of section 88 of the Act

[4]In paragraph 6 of his determination the immigration judge recorded that the representative for the appellant submitted that the grounds relating to the refusal were exactly the same as the grounds that the appellant did not have an appealable right following the refusal by the respondent. He said it was stated that the appellant arrived in the United Kingdom with a valid visa for a short term student which would expire on the 2 December 2007. The appellant attended a recognised place of study being the A-Z School of English in Manchester and his studies had commenced on 16 July 2007 to finalise on 16 July 2008. The original visa was for eleven weeks but it was recognised that he needed more English and therefore the appellant telephoned the Home Office to see whether it was possible to extend the student visa in order to improve his English language. The immigration judge recorded that as a result of advice he received from the Home Office the appellant submitted an application form which was acknowledged by the Home Office. The immigration judge observed that the appellant paid the total amount of the fees of £1,980 on the basis that at the time of making his application for leave to extend he had a valid document namely a limited visa to 2 September 2007.

[5]Thereafter the immigration judge appears to have proceeded on the basis of a mistake induced by the appellant's representative which was that it was the fault of the respondent that the appellant did not have valid leave at the date of the decision since the delay by the respondent meant that the application was determined on 5 September 2007 which was after the visa expired on 2 September 2007. In paragraph 9 of his determination immigration judge said this [infelicities in original]:

“A decision therefore had to be made as to whether at the time of the decision didthe Appellant have a valid document. At law the answer and within the Immigration Rules he did not as this had expired three days before the decision. However this appeared to be highly unjust as the Respondent’s delay had caused the generation of the basis of their refusal. If a decision had been made prior to 2nd September then it would be unable to be refused. I find therefore that the Respondent had not acted well within the Immigration Rules and that discretion should have been exercised in favour of the Appellant in allowing leave as at the time of his application and at all material times thereafter he was the possessor of a valid visa which entitled him to remain in the United Kingdom for the purposes of his study of the English language. I find that he complied with the necessary requirements and had completed applications which were specified by the Home Office Department in Liverpool and that he should therefore be allowed this appeal”

. The immigration judge clearly failed to have regard to section 3C of the Immigration Act 1971 by virtue of which the appellant’s leave was extended pending the determination of his application.

[6]The appellant’s representative andthe immigration judge perhaps may be forgiven for the mistake that they made because the respondent was not represented at the hearing and therefore they had to rely solely upon the notice of immigration decision to know the basis upon which the application had been refused. The grounds for review revealed more fully the basis of the refusal of the appellant's application. The grounds asserted that the appellant came to United Kingdom to be a short-term student on 2 July 2007 and he was granted leave until 2 September 2007. For immigration purposes a short-term student was one who was coming to the United Kingdom to undertake a course of study of 6 months duration or less. It was asserted that the appellant was given entry clearance prohibiting work or recourse to public funds, due to the brevity of the course, and subsequently was deemed to have been given leave as a visitor. Prior to 1 September 2007 visitors were permitted to undertake a short course of study within the period of their leave. It was asserted that the appellant then made an application to extend his permission to remain in the United Kingdom as a student as he had embarked on another course of study which was to expire on 16 July 2008. This was refused on 5 September 2007 on the basis that the appellant did not possess valid entry clearance in accordance with paragraphs 57-75M or 82-87F. The grounds went on to assert that in order to have been given a student entry clearance in accordance with paragraph 57 the appellant would have had to have been given a code which prohibited employment, except part-time or vacation work with the consent of the Secretary of State as provided for by paragraph 58 (they meant 57) of the immigration rules.

[7]It is difficult to see how the claim by the respondent that the appellant had entry clearance as a visitor could be maintained in the light of the fact that the entry clearance endorsed on the appellant’s passport showed that the entry clearance was as a “short term student”. The assertion that the appellant was prohibited from working or having recourse to public funds is countered by the fact that as a visitor he would have had to satisfy the entry clearance officer that he intended to leave the United Kingdom at the end of the period of his visit. The application for an extension of leave shows that the appellant proposed to undertake a further course of study in the United Kingdom, namely an engineering course at the Manchester Metropolitan University. It is difficult to see how an entry clearance officer would have granted leave to the appellant as a visitor when he knew that the purpose of the application was so that the appellant could study in the United Kingdom and expect him to have the intention to leave the United Kingdom after 11 weeks.

[8]The answer is put beyond any doubt whatsoever, however, by a consideration of the respondent’s IDIs. At the reconsideration hearing the appellant’s representative produced a copy of IDIs Chapter 3 Section 1 dated August 2007. It was clear, however, that this was drafted in anticipation of a change in the immigration rules to take effect on 1 September 2007. With the representatives’ agreement I indicated that I would look at the IDIs which were in force at the date the appellant was granted entry clearance. The IDIs Chapter 3 Section 1 dated March 2006 contain relevant provisions:

“1.1. Entry Clearance Those nationals who are specified in Appendix 1 to the Immigration Rules require prior entry clearance as a student before arriving in the United Kingdom. From 13 November 2005 all non-visa nationals with the exception of those listed below require prior entry clearance if they wish to study in the United Kingdom for more thansix months. … Non visa nationals seeking leave to enter to study for less than six months do not need prior entry clearance, but will only be granted up to a maximum of six months on arrival, subject to meeting the requirements of the student Rules. However they may choose to apply for entry clearance where they have, for example, previously been refused entry. … 1.2.2.1 Short Term Students - Visitor Conditions Code 5N - Code 3 Short term students, on courses of six months or less, and who make it clear to the Immigration Officer that that they do not wish to take part-time employment may be routinely granted code 5N or code 3 visitor conditions at the port of entry (subject to meeting the requirements of paragraph 57 and provided none of the general grounds of refusal set out in Part 9 of HC395 applies). 1.2.2.2 Short Term Students - Student Conditions Code 2 Short term students, on courses of 6 months or less, who do indicate that they wish to take part-time employment, should be granted leave to enter on code 2 student conditions for the duration of the course up to a maximum of 6 months (subject to meeting the requirements of paragraph 57 and provided none of the general grounds of refusal set out in Part 9 of HC 395 applies).”

[9]The IDIs make it perfectly plain that at the time the appellant was granted entry clearance a short-term student who did not wish to take part-time employment would be granted leave subject to visitor conditions provided that he was able to comply with the requirements of paragraph 57 of HC 395. In these circumstances the fact that the appellant’s entry clearance contained the words “no work or recourse to public funds” is not an indication that he had not been granted entry clearance at a short-term student in accordance with paragraph 57 HC 395.

[10]The appellant’s entry clearance, by virtue of article 2 of the Immigration (Leave to Enter and Remain) Order 2000 (as amended), had effect as leave to enter the United Kingdom and by virtue of article 5 subject to any conditions to which entry clearance was subject which were endorsed on it.

[11]I am satisfied that at the date of the decision the appellant was last admitted to the United Kingdom in possession of a valid entry clearance in accordance with paragraph 57 of HC 395 and that therefore the decision of the respondent was not in accordance with the immigration rules. In these circumstances although the immigration judge made an error of law in relation to the reasons for his finding that the appellant had valid entry clearance at the date of the decision, nonetheless for different reasons, his conclusion was a correct one.

[12]In paragraph 8 of his determination the immigration

judge said this:

“Evidence was made available that the Appellant had been a good student and had attended on an extremely regular basis at his place of study. Further that he discharged the cost of the course and that there were no inherent possible objections on the grounds of accommodation and maintenance as his Sponsor remained the same and he had completed a period of study without falling on public funds or employment.”

[13]The finding of the immigration judge that the appellant complied with the remaining requirements of the rules was not challenged in the grounds for review and the order for reconsideration was limited to the decision of the immigration judge as to whether the appellant had the necessary entry clearance. Therefore it follows that the immigration judge did not make a material error of law in his determination allowing the appeal and his determination shall stand. Signed Dated Senior Immigration Judge Spencer