SH (Immigration Rule 57(ii)(b), Student) Pakistan [2004] UKIAT 00211 (28 July 2004) [2004] UKIAT 00211

UKIAT

SH (Immigration Rule 57(ii)(b), Student) Pakistan [2004] UKIAT 00211 (28 July 2004)

[2004] UKIAT 00211 · 2004-07-28

[1]SH (Immigration – Rule 57(ii) (b) – Student ) Pakistan

[2004] UKIAT 00211

IMMIGRATION APPEAL TRIBUNAL Date of hearing: 2 July 2004 Date Determination notified: 28 July 2004 Before His Honour Judge Huskinson (Vice President) Mr C Bennett Mr G F Sandall Between Entry Clearance Officer - Islamabad APPELLANT and Secretary of State for the Home Department RESPONDENT For the Appellant: Ms T Hart, Home Office Presenting Officer For the Respondent: [ ] (Sponsor) DETERMINATION AND REASONS The appellant, who is the Entry Clearance Office (ECO) at Islamabad appeals to the Tribunal, with permission, from the Determination of Mr J Graeme Peart, Adjudicator, promulgated on 11 December 2003 whereby he allowed the appeal by the Respondent (hereafter called the Claimant) against the ECO's decision to refuse to grant to the Claimant leave to enter to the United Kingdom as a student under Rule 57 of the Immigration Rules, HC 395 as amended.

[2]The Claimant was, obviously, not present before the Tribunal. Neither was she professionally represented. However, her sponsor [ ], (hereinafter "the Sponsor") who appeared on her behalf before the Adjudicator and who is the husband of the Claimant's aunt, was present before the Tribunal and made representations on the Claimant's behalf.

[3]The Adjudicator found that the Claimant is clearly a woman of ability and a child psychologist working in Pakistan with an MSc in Applied Psychology and post graduate qualifications in her field of expertise. The Claimant wishes to attend a course at the New School of Psychotherapy and Counselling (NSPC) which is based at Royal Waterloo House, 51-55 Waterloo Road, London SE1 8TX. NSPC's writing paper makes clear that it is section of London City College and its post graduate courses are validated by the University of Sheffield and that London City College is a division of Schiller International University.

[4]It is convenient at this stage set out the requirements which need to be met if leave to enter as a student under Immigration Rule 57 is to be granted:

"57. The requirements to be met by a person seeking leave to enter the United Kingdom as a student are that he: (i) has been accepted for a course of study at: (a) a publicly funded institution of further or higher education; or (b) a bona fide private education institution which maintains satisfactory records of enrolment and attendance; or (c) an independent fee paying school outside the maintained sector; and (ii) is able and intends to follow either: (a) a recognised full time degree course at a publicly funded institution of further or higher education; or (b) a weekday full time course involving attendance at a single institution for a minimum of 15 hours organised daytime study per week of a single subject, or directly related subjects; or (c) a full time course of study at an independent fee paying school; and (iii) if under the age of 16 years is enrolled at an independent fee paying school on a full time course of studies which meets the requirements of the Education Act 1944; and (iv) intends to leave the United Kingdom at the end of his studies; and (v) does not intend to engage in business or take employment, except part time or vacation work undertaken with the consent of the Secretary of State for Employment; and (vi) is able to meet the costs of his course and accommodation and the maintenance of himself and any dependants without taking employment or engaging in business or having recourse to public funds."

[5]The date upon which the Claimant made her application to the ECO was 19 December 2002. By reason of the then current situation in Pakistan the ECO considered the Claimant's application solely on the documents submitted. There was no interview. The ECO was not satisfied, on the balance of probabilities, that the Claimant met the requirements of Rule 57 and, in particular, concluded that the Claimant's course was outside the Immigration Rules and also that he was not satisfied that the Claimant intended to leave the United Kingdom at the end of her studies. The ECO's decision is dated 6 January 2003 and the reasons given for refusal were as follows:

"I am not satisfied that you are enrolled on a weekday full-time course involving attendance at a single institution for a minimum of 15 hours of organised day time study per week of a single subject/directly related subjects. Your account of your personal, economic and social circumstances and how you will use these studies does not satisfy me, on the balance of probabilities, that you intend to leave the United Kingdom on completion of your course."

[6]Accordingly the two provisions in Rule 57 which the ECO concluded were not satisfied were those to be found in Rule 57(ii)(b) and (iv).

[7]As regards the question of whether the Claimant intends to leave the United Kingdom at the end of her studies, the Adjudicator considered the additional material which the Claimant had lodged, including the matters contained in her grounds of appeal, and heard evidence from the Sponsor. The Adjudicator found the Sponsor a credible witness and he saw no reason to doubt either his evidence or that of the Claimant herself. He accordingly concluded that the Claimant did have the intention to leave the United Kingdom at the end of her studies. The ECO seeks to challenge the Adjudicator's conclusion on this point in the grounds of appeal – the challenge being based on the complaint that the Adjudicator failed to provide any sufficient reasoning for this finding. In argument before the Tribunal Ms Hart did not concede this point but accepted, quite rightly, that it was not a point she felt able to press with further argument beyond what was already stated in the grounds of appeal. The Tribunal has no hesitation in rejecting the ECO's attack upon the Adjudicator's conclusion on this aspect of the case. The Adjudicator was entitled to find and did find that the Claimant genuinely wished to come to the United Kingdom for the reasons she stated, namely to pursue the course which she identified, and that she genuinely intended to leave the United Kingdom at the end of her studies. The Adjudicator was entitled to reach this conclusion after considering the documents and hearing the Sponsor. He rehearsed the Claimant's evidence and he noted the Sponsor's evidence that the Claimant has become engaged to be married. Accordingly the Tribunal considers this case on the basis that the Claimant has made an entirely genuine application and does intend to leave the United Kingdom at the end of her proposed studies.

[8]The crucial question therefore in the present case is whether the course which the Claimant intends to follow falls within Rule 57(ii)(b). It is therefore necessary to see what was the nature of the course which NSPC was offering to the Claimant.

[9]NSPC's letter of 5 July 2002 makes clear that the Claimant has been accepted for training at the Post-Graduate Certificate in Existential Psychotherapy and Counselling starting in October 2002. It is stated:

"Unfortunately, the Wednesday in-take is full at present, however, we can offer you a place on the waiting list for Wednesday in-take and a definite offer of a place on the Saturday in-take."

This letter indicates that the course runs from 10 am to 5 pm. A letter from NSPC dated 16 August 2002 makes clear what the M.A. programme requires, namely:

"6 hours a week of tuition 6 hours a week ( at least ) of individual study – includes working towards writing dissertation 3 hours a week ( at least ) of clinical work 1 hour a week ( at least ) of supervision for clinical work at the placement 1 hour a week of personal therapy"

[10]As it turned out the Claimant was unable to take up the course starting in October 2002. There was before the Adjudicator further documentation from NSPC dated 21 October 2003 making clear that the Claimant was now offered a course (which is a 3 year course) commencing in January 2004 on the Wednesday in-take. Thus the course would run on Wednesdays from 10 am to 5 pm. One of the letters of 21 October 2003 repeats the ingredients of the MA programme the terms of which have already been set out above. The letter then states: "Therefore the total number off (sic) hours per week that Ms Habib will be studying is 17, which is equivalent to full-time status".

[11]The Adjudicator in paragraph 22 of the Determination set out the requirements of the course which total 17 hours study per week, and observes that NSPC indicates that this is equivalent to full-time status. The Adjudicator then continues in the following terms in paragraphs 24-28 of the Determination:

"24. I find that organised daytime study of a single subject or directly related subjects includes tuition, individual study working towards a dissertation, clinical work, supervision of clinical work and personal therapy. 25. I accept that such tuition, study, clinical work, supervision of clinical work and personal therapy will be under the direction of the New School of Psychotherapy and Counselling and in that sense, involves attendance there or under the control or direction of the New School of Psychotherapy and Counselling elsewhere, for a minimum of 15 hours organised day time study per week of the directly related subjects comprising the substance of the MA course. 26. It might well be that the individual study will, like any other Masters degree, take place wherever it is appropriate for the appellant to carry out, for example, research and writing of her dissertation. I do not accept that the term "involving attendance" prevents the appellant from studying in whatever academic libraries the New School of Psychotherapy and Counselling make available to its students by arrangement with the many research facilities available within academic life in London. 27. In the same way, I accept that clinical work, its supervision and personal therapy may or may not take place within the physical structure of the New School of Psychotherapy and Counselling but I do not accept that if it takes place outside that single institution that 57(ii)(b) is thereby infringed. 28. In my view, the essence of 57(ii)(b) is that this Masters degree course at post graduate level involves attendance at or under the auspices of a single institution, that is, the New School of Psychotherapy and Counselling.

(b) "

[12]Accordingly the Adjudicator concluded that all the relevant requirements of Rule 57 were satisfied and he allowed the appeal.

[13]Ms Hart has relied upon and developed in argument the matters contained in paragraph 2 of the grounds of appeal. In summary she submits: 1. The Adjudicator should not have taken into consideration the fact that in October 2003 (i.e. 9 months after the ECO's refusal) the Claimant was offered a Wednesday course in substitution for the original Saturday course. She submitted that on the basis that the offer was of a Saturday course then this could not in any event satisfy Rule 57(ii)(b) because it was not a weekday course. 2. Quite apart from the forgoing, she submitted that what was on offer was not a "full-time course" nor did it involve attendance at a single institution "for a minimum of 15 hours organised day time study per week". 3. She contended that, even assuming in the Claimant's favour (but without actually conceding the point) that the three hours of clinical work and the 1 hour of supervision for clinical work at the placement and the 1 hour of personal therapy could fall within Rule 57(ii)(b), the 6 hours a week of individual study could not do so. This 6 hours could not qualify because the 6 hours of study was something which the Claimant (and any other student) could do independently in their own time and wherever they wished – in other words the 6 hours of study did not involve attendance at the institution nor was it organised day time study.

[14][ ] in response to these arguments pointed out: 1. That the problem regarding the Saturday had been cured by the substitution of the Wednesday course. 2. That NSPC was clear in its letter of 21 October 2003 that the number of hours studied per week is 17 which is equivalent to full time status. He asked the Tribunal to accept that and to accept the argument of the Adjudicator. He also drew attention to a further letter from NSPC dated 18 March 2004 which draws attention to the considerable amount of background reading which students are expected to do in preparation for classes. The letter states:

"Students are expected to be independent learners guided by their tutors and the courses they attend. They are also required to produce a dissertation of 15,000 words. This is a standard requirement for any Masters degree from a British University, and accordingly involves much independent learning, which is why it is stipulated that students should complete at least a further 6 hours of individual study each week. …We have had a number of overseas students in the past from USA, Israel and Russia, who have all been successful in obtaining student visas to take this course."

[15]With respect to the learned Adjudicator we are unable to agree with his conclusion that the proposed course satisfies Rule 57(ii)(b). We reach this conclusion substantially for the reasons advanced by Ms Hart in argument. The nature of the course is set out in the documents from NSPC. It can be noted (looking for the moment at the proposed Wednesday course) that what the course involves is attendance at NSPC on Wednesday from 10 am to 5 pm. So far as concerns the hours of study, these have been set out above and include 6 hours a week (at least) of individual study. This individual study clearly is not study involving attendance at NSPC nor is it study which can be said to be "organised day time study". Instead it is study in the nature of independent study (which might perhaps be called "homework") which the student is expected to do independently and in his/her own time between attendance on Wednesdays at NSPC's premises between 10 am and 5 pm for the 6 hours a week of tuition and, perhaps, some clinical work or supervision for clinical work or personal therapy. We cannot accept that the fact that the independent study, or homework, is done under the control or direction of NSPC means that it counts towards the relevant 15 hours irrespective of where or how it is carried out. What rule 57(ii)(b) requires is that the student is following a "full-time course" and that this full-time course involves "attendance" at the relevant institution for a minimum of 15 hours "organised day time study" per week. We cannot see how the proposed course, requiring attendance on Wednesdays, can be said to be a full-time course. Nor do we see how the 6 hours of independent study can count as being hours when the Claimant is attending at NSPC for organised day time study. This 6 hours can be done (and would appear to be expected to be done) away from NSPC premises and during such hours of the day or night or weekend as the student may choose.

[16]Accordingly, with respect to the learned Adjudicator we cannot agree with his interpretation of Rule 57(ii)(b). The Adjudicator may be correct in saying that for someone studying at post graduate level it is inappropriate to expect that the student will carry out all the study wholly within the buildings of the institution. There is nothing unreasonable in NSPC expecting students to carry out substantial independent study away from their premises. However, this does not constitute study which can count towards the 15 hours required by the Rules.

[17]The foregoing being our conclusion even assuming that the proposed course is to be held on Wednesdays rather than Saturdays, it is not necessary for us to reach a conclusion on whether the Claimant must in any event fail because the originally proposed course, which was considered by the ECO, was a course which was to be held upon Saturdays. However, if it were necessary for the point to be decided the Tribunal would incline towards agreeing with Ms Hart's submission that the fact that the Claimant was able, 9 months after the ECO's decision, to obtain admission on a Wednesday course rather than a Saturday course is not something that can properly be taken into account by the Adjudicator or the Tribunal in considering whether the Claimant is entitled to succeed upon her appeal from the ECO's decision. If this were the only point the Claimant had lost on it would, of course, be possible for a fresh application to be made in relation to the Wednesday course.

[18]The Tribunal has not overlooked the fact that NSPC has stated that it has a number of overseas students who have been successful in obtaining student visas to take the course. The Tribunal does not know the facts of these other cases and the Tribunal can and must decide the present Claimant's case on the relevant evidence relating to her case. There may be other reasons why these other students have been granted a student visa or it may that these other visas were wrongly granted. However, we are in no doubt that the only decision we can properly come to is that, for the reasons mentioned above, the ECO's appeal must be allowed.

[19]For completeness we should add that the case has been considered by the ECO and by the Adjudicator solely under sub paragraph (b) of Rule 57(ii). It has not been considered whether the claimant could succeed under sub paragraph (a) on the basis that the course is "A recognised full time degree course at a publicly funded institution or further or higher education". There is no evidence before us that NSPC (or London City College or Schiller International University is a publicly funded institution of further or higher education. Even if it were we would be unable (for reasons already stated) to accept that this particular proposed course could be a "full time" degree course.

[20]Accordingly, the appeal by the ECO is allowed. His Honour Judge Huskinson Vice President