TF (student, conditional offer not acceptance) Pakistan [2007] UKAIT 00029 (12 March 2007) [2007] UKIAT 00029

UKIAT
TF (student, conditional offer not acceptance) Pakistan [2007] UKAIT 00029 (12 March 2007)
[2007] UKIAT 00029 · 2007-03-12
[1]TF (student, conditional offer not acceptance) Pakistan [2007] UKAIT 00029 ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 2 February 2007 Date Determination notified: 12 March 2007 Before Senior Immigration Judge P R Lane Between TF APPELLANT and ENTRY CLEARANCE OFFICER, ISLAMABAD RESPONDENT For the Appellant: Ms S. Taylor, Counsel, instructed by J.R. Immigration Consultancy For the Respondent: Ms S. Ong, Home Office Presenting Officer DETERMINATION AND REASONS A student who has been accepted on a course lasting for less than six months and has a conditional offer for a (subsequent) course which would extend the study to a period of more than six months has not been accepted on a course of more than six months and therefore has no right of appeal save on human rights or race discrimination grounds because of the provisions of s.91 (1) (a). The appellant, a citizen of Pakistan born on 25 April 1982, applied on 26 May 2005 for leave to enter the United Kingdom as a student. On 9 June 2005 her application was refused. She purported to appeal against that decision to the Tribunal and her appeal was heard at Hatton Cross on 28 April 2006 by Immigration Judge Greasley. He allowed the appellant's appeal.[2]On 22 May 2006 reconsideration of the Immigration Judge's decision was ordered under section 103A of the Nationality, Immigration and Asylum Act 2002. The reason for ordering reconsideration was that it was arguable that the appellant had not been entitled to appeal against the refusal of entry clearance as the only course on which she had been unconditionally accepted would last for less than six months.[3]Whilst in Pakistan, the appellant had undertaken a six month course as a beautician. The time came, however, when she decided that she would like to pursue a course in the United Kingdom on child care. In her application form, the appellant stated at Box 9.2 that she wished to undertake 'English language course 4 July – 26 August 05. GCSE programme September 2005 one year'. These were to be undertaken at New College Nottingham.[4]Interviewed on 9 June 2005, the appellant told the respondent that she would study in the United Kingdom a 'child care course'. Asked 'Which subjects will the course cover?' she replied 'GCSE course'.[5]The notice of refusal addressed to the appellant began by telling the appellant 'You have applied for entry clearance to the United Kingdom as a student for less than 6 months'. The notice stated that the appellant had been unable satisfactorily to explain the basic content of her proposed course or the future benefits that might accrue from it. Her proposed course was regarded by the respondent as 'unrealistic because it is inconsistent with your previous pattern of study'. The appellant had, furthermore, 'taken no preparatory steps for your course to ensure that these studies are appropriate'. Finally, the appellant's account of her 'personal, economic and social circumstances and how these studies will be used does not satisfy me, on the balance of probabilities, that you intend to leave the United Kingdom on completion of you studies'.[6]In the explanatory statement, the respondent asserted that the appellant:
'does not have a right of appeal as a student as defined under s.82(1) of the Nationality, Immigration and Asylum Act 2002. This is because the appellant submitted an acceptance letter from New College Nottingham dated 16 February 2005, stating she had an unconditional offer for enrolment on an English language course with the duration for July 2005 – August 2005. However, the subsequent offer for a progression to a 1 year GCSE course is conditional on completion of IELTS to level 5.5 and reward (sic) of a satisfactory progress report. Given this, we could only assess this application based on the initial course, which is less than 6 months. Therefore this application does not attract a full right of appeal and should be dismissed. '
[7]The Tribunal's attention has not been directed to the letter of 16 February 2005. However, before the Immigration Judge there was a letter dated 24 June 2005 from New College Nottingham, which appears to reiterate the contents of the earlier letter. The letter of 24 June 2005 stated:
'We confirm that [the appellant] has an unconditional offer as a student on the English language course starting July 4th, 2005 – August 26th 2005 . This is a weekday course and it involves attendance for a minimum of 15 hours per week daytime study. The total fee for this course is £840 and the student has paid a deposit of £500 to guarantee a place on the course. The student has a conditional offer for progression on to the GSCE programme starting 5 September 2005 for one year. To progress the student must achieve the required IELTS level 5.5 and obtain a satisfactory progress and attendance report. On successful completion of the GSCE programme a student will progress to the Childcare and Education Cache Foundation Award . The fees for this course are £4,000. However, the student is eligible for the '
Country Bursary' therefore the fee is reduced to £3,500 for each year.' (writer's emphases)[8]A further letter of 9 March 2006 from New College Nottingham was in similar terms, albeit that it referred to the two courses starting on 3 July 2006 and 4 September 2006 respectively. At the reconsideration hearing, the Tribunal was also shown a letter of 6 June 2006, which was not before the Immigration Judge, but which purported to confirm on behalf of New College Nottingham 'that the one month initial English Language Course, is a preliminary requirement to the GCSE study programme'.[9]The Immigration

Judge found as follows:

'7. Mr Gibbs [the Presenting Officer] indicated that he did not seek to challenge any of the evidence provided from the sponsor. 8. However, he nonetheless asked me to consider the contents of the explanatory statement, issued on 14 November 2005, which indicated that a letter from New College in Nottingham dated 9 March 2006, said that appellant was placed on an unconditional offer (sic) as a student on an English language course for one month. There was then a conditional offer for progression to a GCSE English programme course lasting one year. Satisfactory progress in this would then lead to enrolment on the Child Care and Education Foundation Award course. 9. Mr Gibbs submitted that the Entry Clearance Officer had taken the view that the initial one month course was separate to, and an additional requirement of, progression to the GSCE English course. On this basis, given the course lasted less than six months, the Entry Clearance Officer had found that there was no available right of appeal against this decision, given that the course was of less than one year's duration and was accordingly excluded by operation of Section 89 of the 2002 Nationality, Immigration and Asylum Act. 10. Ms Taylor submitted that the one month initial English language course was clearly a preliminary requirement to the GCSE study and was not to be considered as a separate one month course. This was simply an initial hurdle for the appellant to clear, once the college was satisfied as to her proficiency in English. Moreover, the appellant's interview albeit brief, had been conducted in English and there was no suggestion that she had had any difficulty understanding the questions. 11. Having heard the submissions in this appeal, I find that the appeal must be upheld. Given that Mr Gibbs did not seek to challenge any of the documentary evidence from the appellant's uncle, in relation to maintenance and accommodation matters, those specific grounds of refusal set out in the certificate (sic) were not, in essence, relied upon. 12. I find that the preliminary one month English course is, as Ms Taylor submits, a necessary precursor to the GCSE course itself and is therefore not a stand alone course of study, but rather, a well-recognised lead-in English language course which will introduce the appellant to the GCSE studies. 13. I also find that the appellant was able to speak English during her interview, and there was no suggestion that she struggled with any other questions asked of her. I find it reasonably likely that the appellant will, in any event, successfully pass the initial one month course. 14. Having considered the helpful submissions from both representatives, accordingly I therefore find that this appeal must be upheld under paragraph 57 of the Immigration Rules.'
[10]The relevant provisions of the Immigration Rules are as follows:
'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 which is to be provided by an organisation which is included on the Department for Education and Skills'
Register of Education and Training Providers, and is either … … (b) a bona fide private education institution which maintains satisfactory records of enrolment and attendance; [and] … (ii) is able and intends to follow … … (b) a weekday full time course involving attendance at a single institution for a minimum of fifteen hours organised daytime study per week of a single subject, or indirectly related subjects; … (iv) intends to leave the United Kingdom at the end of his studies; and (v) does not intend to engage in business or to 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.'[11]Section 91(1) of the Nationality, Immigration and Asylum Act 2002 provides as follows: (1) A person may not appeal under section 82(1) against refusal of entry clearance if he seeks it – (a) in order to follow a course of study for which he has been accepted and which will not last more than six months, (b) in order to study but without having been accepted for a course, or (b) as the dependant of a person seeking entry clearance for a purpose described in paragraph (a) or (b).'[12]Section 91(2) provides that section 91(1) does not prevent the bringing of an appeal on the grounds referred to in section 84(1)(b) and (c), namely, on racial discrimination or human rights grounds.[13]At the reconsideration hearing Ms Taylor, who had also appeared before the Immigration Judge, submitted that the Immigration Judge had taken as a preliminary issue the question whether there was a right of appeal and that she and the Presenting Officer had addressed the Immigration Judge on whether, as a matter of fact, he had to consider one course or two courses. The Immigration Judge had, she said, concluded that the English course and the GCSE course were, in effect, one composite course. Ms Taylor drew the analogy of a three year degree course, where although one is accepted on to it, passing from the first to the second year, and the second to the third, is nevertheless dependent upon obtaining a satisfactory standard at the end of the earlier of the years in question.[14]However, it is plain that there is more to section 91(1) than the issue of the duration of a course. The structure of section 91(1)(a) and (b) is such that, in order to have a right of appeal, a person must have been accepted for a course of study and that course must be one that will last more than six months. If the only course for which a person has been accepted is one that lasts six months or less, she cannot appeal against the refusal of entry clearance, whether or not she has an aspiration to follow some other longer course for which she has not been accepted. Acceptance on a course of more than six months is a prerequisite to being able to appeal, subject to the limited exceptions in section 91(2). The concentration placed by the Immigration Judge on the issue of whether there were in truth one or two courses led him to miss the point the respondent was making in the explanatory statement. The respondent had not chosen to focus on the IELTS English course for some capricious reason. He did so because he did not consider that the appellant had been "accepted" on the GCSE course.[15]Given that the issue of what is meant by "accepted" in section 92(1)(a) and also, of course, paragraph 57(i) of HC 395 is a crucial one in this case, it is regrettable that at neither stage of the appeal process has either party drawn to the Tribunal's attention the first footnote to paragraph 9.36 of Macdonald's Immigration Law and Practice ( 6th Edition ). This states that 'A conditional acceptance may be insufficient'. Two cases cited are stated as authorities for that proposition: Chinwo v Secretary of State for the Home Department [1985] Imm AR 74 and Youshani [1984] (3181). Those cases dealt with paragraphs 21 and 107 of the former HC 169. Paragraph 21 required a passenger seeking entry to study in the United Kingdom to satisfy the Entry Clearance Officer 'that he has been accepted for a course of study at a university, a polytechnic or further educational establishment, in an independent school or any bona fide private education institution'. Paragraph 107 required a student or would-be student who applied for variation of leave for the purpose of study, to produce evidence 'that he is enrolled for a full-time course of daytime study which meets the requirements for admission as a student'.[16]In Youshani the Immigration Appeal Tribunal had to consider the case of a person who was intending to enter the College of Law. The IAT held that, whenever the point might be at which the appellant could be said to be 'enrolled' on the course offered by the College, it was definitely not at a time when he lacked a 'guaranteed' place on the course because he had yet to give the College his completed 'confirmation form'.[17]In Chinwo, much of the IAT's determination is taken up with the issue of whether there was any difference between the concepts of being accepted and being enrolled. The Tribunal declined to interpret 'enrolled' more restrictively than 'accepted'. What is plain, however, from the determination is that neither a conditional enrolment nor, it would appear, a conditional acceptance could entitle a person to succeed under paragraph 21 or paragraph 107. At page 81, the Tribunal held:
'To make sense of the rule as applicable to students and would-be students, in our view the requirement of "enrolled" has to be read as entitlement to a confirmed place on a course which satisfies the rule. An offer of a place, subject to a condition to be performed prior to confirmation, would not be satisfying the requirements.'
[18]At page 83, the Tribunal found that 'the rule can only make sense if "enrolled" is taken to mean the holding of an unconditional confirmed place on a course'.[19]In this Tribunal's view, the analogy sought to be made by Ms Taylor between the present case and that of a student progressing, subject to satisfactory performance, from one year to the next of a degree course is a false one. On the facts of this case, the better analogy is that of a person being given a conditional offer by a university, dependent upon that person obtaining particular grades at 'A' level. On any reading of the letter of 24 June 2005 from New College Nottingham, the appellant's acceptance on the GCSE programme was conditional; indeed, the third paragraph expressly refers to her having 'a conditional offer'. The Immigration Judge should have looked at the two courses for which the appellant had sought entry to the United Kingdom and asked himself whether she had been 'accepted' on them for the purposes of the Rules. As a matter of statutory interpretation, 'accepted' should, the Tribunal finds, be given its ordinary meaning. It cannot be equated with holding 'a conditional offer'. If the drafters of the Rules and the 2002 Act had intended to cover such a case, they could easily have done so. Accordingly, the appellant had not been 'accepted' for the GCSE course.[20]It might be said that, since 1985, the relevant Rules have developed in such a way that a different interpretation should be now placed upon the word 'accepted' in paragraph 57(i) and, by extension, section 91(1) of the 2002 Act. In all cases, the would-be student must show that he or she 'is able and intends to follow' the course in question (paragraph 57(ii)). Ought, therefore, a conditional offer to be equated with acceptance for a course of study, with the issue of whether the condition will be satisfied left to be dealt with under paragraph 57(ii)? In the present case, the Immigration Judge might be said to have adopted such a line, albeit unwittingly, in finding that it was 'reasonably likely that the appellant will, in any event, successfully pass the initial one-month course'.[21]Leaving aside what appears to be the application of an inappropriately low standard of proof on the part of the Immigration Judge, the Tribunal considers that the answer to the question just posed must be in the negative. Not only would such an interpretation fly in the face of the plain meaning of the words used in paragraph 57(i); it would also cast judicial fact-finders in the role of prognosticators on a wide range of matters. To some extent, of course, this is already the result of paragraph 57(ii). Nevertheless, it would require far clearer language than what we see in paragraph 57, as currently drafted, to enable judicial fact-finders, such as this Tribunal, to engage in speculation as to what grade a person might or might not achieve in an examination that has still to be taken, or whether a prior course will be successfully completed, where the education institution concerned has itself felt unable to assume that the candidate is so gifted as to make it unnecessary to require objective evidence of her ability, whether through passing examinations at a particular grade or completing prior courses. In this regard, it must be borne in mind that section 85(5)(b) of the 2002 Act requires the Tribunal, in entry clearance cases such as this, to consider only the circumstances appertaining at the time of the decision to refuse.[22]Finally, the Tribunal must deal with the possible argument that, if the IELTS course and the GCSE course were looked at as a whole, the appellant did, after all, both have a right of appeal and satisfy the requirement of paragraph 57(1), in that she had been 'accepted' for the English course, in the sense required by paragraph 19 above, and that course and the GCSE course, looked at together, would last more than six months. However, as we have already seen, the correspondence from New College Nottingham does not present the two courses as a composite one, with the IELTS acting merely as a type of 'foundation' course. Scoring 5.5 in the IELTS examination, following the short IELTS English course, is, in reality, the condition precedent to being able to start the GCSE course, just as obtaining two 'A' grades at 'A' Level is the condition precedent to starting a university course, following a conditional offer in those terms. But, even if the two courses were to be regarded as one, the appellant still failed to satisfy paragraph 57(1) and fell within section 91(1) because she had not been 'accepted for' that course; only for part of it.[23]Ms Harris asked whether the Tribunal would record that, in the event of the appeal being dismissed, there had been an acceptance by the Presenting Officer at the hearing before the Immigration Judge that, on the evidence adduced by the appellant, she had shown that she satisfied the maintenance and accommodation aspects of the Rules.[24]The determination of the Immigration Judge contains a material error of law and the Tribunal accordingly substitutes for it a decision of its own, dismissing the appellant's appeal for want of jurisdiction. Signed Date: 5 March 2007 Senior Immigration Judge Lane