MG ('Degree level' study) South Africa [2007] UKAIT 00067 (30 July 2007) [2007] UKIAT 00067

UKIAT
MG ('Degree level' study) South Africa [2007] UKAIT 00067 (30 July 2007)
[2007] UKIAT 00067 · 2007-07-11
[1]MG ('Degree level' study) South Africa [2007] UKAIT 00067 ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 18 th June 2007 Date Determination notified: 11 July 2007 Before SENIOR IMMIGRATION JUDGE SPENCER Between MG APPELLANT and Secretary of State for the Home Department RESPONDENT For the appellant: Mr C Mannan, counsel, instructed by Simply Visas Limited For the respondent: Mr D Hutchison, Home Office presenting officer DETERMINATION AND REASONS The requirement of 'a course of study at degree level or above' in paragraph 60(i)(c) of HC 395 which has to be interpreted in accordance with paragraph 6 of the Rules means that the constituent parts of the course of study in question have to be at degree level. The background The appellant is a citizen of South Africa, born on 20 th October 1984. Her appeal against the decision of the respondent, refusing her application to vary her leave to remain as a student under paragraph 62 of HC 395 with reference to paragraph 60(i)(b) was dismissed, after a hearing, by Immigration Judge Eban on the grounds that she did not meet the requirements of paragraph 60(i) of the rules and therefore had no right of appeal, in a determination promulgated on 13 th March 2007.[2]On 2 nd April 2007 Senior Immigration

Judge Lane ordered reconsideration on the application of the appellant for the following reasons:

"1. The grounds accompanying the application raise an issue of interpretation as to what is meant by "degree level study", as defined by paragraph 6 of the Immigration Rules. It is arguable that the interpretation should be one that encompasses the type of course on which the appellant embarked. 2. Reconsideration is ordered on the appellant's grounds."
[3]The grounds asserted that there was a material error of law in paragraph 15 of the determination. In that paragraph the immigration judge said that she was not satisfied that the appellant's course at EThames was a course which led to a degree since her counsel had said that registration with the University of London was dependent on the appellant passing her first year exams. The grounds asserted that counsel for the appellant explained that registration with London University would be administered by EThames on behalf of the appellant if she successfully completed the course. Counsel did not say that the same system or procedure would apply if the appellant was at a recognised university or at London University as asserted in paragraph 15 of the determination. He said the position would be the same if the appellant were at the University of London at the outset of her course and did not complete her first year. The second ground for review submitted that the definition of 'leads' should be given its ordinary meaning in law and the appellant's course did in fact lead to a degree. In paragraph 15 of her determination the immigration judge did not say why the appellant's course did not lead to a university degree. She had enrolled on a course at EThames which clearly stated it was to lead to a BSc degree. That was markedly different to a student being told that he/she was to be enrolled on an 'A' level course which was referred to in paragraph 15 of the determination. The third ground for review asserted that the immigration judge had made an error of law in paragraph 16 of her determination in which she found that the HNC which the appellant said she would achieve at the end of her first year was not a qualification at level 6 of the National Qualifications Framework. The grounds suggested that 'A' levels were at level 3 and HNC/degrees were at the old level 4 and the new revised level 6 as shown on the Dfes QCA/government HDAQ/Openquals database.[4]The history of the matter is that the appellant was admitted to the United Kingdom as a working holiday maker. She applied for further leave as a student having enrolled on what was described as a three year BSc Management course from 24 July 2006 to 31 July 2009 at EThames Graduate School.[5]In paragraph 13 of her determination the Immigration Judge stated that the IDIs made it clear for the purposes of the definition of 'degree level study' in paragraph 6 of the rules that "a recognised United Kingdom degree" was a degree that had been awarded by an institution in England, Scotland, Wales or Northern Ireland which had been granted degree awarding powers by either a Royal Charter or an Act of Parliament. These were known as recognised bodies. She went on to say that all United Kingdom universities and some higher education colleges were recognised bodies. She was satisfied that London University was a recognised body. In paragraph 14 of her determination she said that other institutions that did not have the power to award their own degrees might provide courses which led to a degree of a recognised body. These were known as listed bodies. She was satisfied that EThames was a listed body. That means that she was satisfied that EThames was an authorised provider of the course that the appellant proposed to follow and satisfied the requirements of paragraph 57(i) of HC 395. She was also satisfied that the degree that the appellant might obtain was from an institution capable of awarding degrees recognised by the Act, namely London University. In paragraph 15 of her determination however she said this:
"While I am satisfied that the appellant is on a course of study at EThames, I am not satisfied that it is a course which leads to a degree: as Mr Mannan told me registration with the University of London is dependent on the appellant passing her first year exams. He told me that this would be the case for any first year student enrolled at a recognised body and attending a degree course at a recognised body. This was an assertion made by Mr Mannan without any evidence to support it. Accordingly based on the evidence before me I am not satisfied that the course on which the appellant is currently enrolled is a course which leads to a degree, any more than 'A' levels are a course which lead to a degree – they may be a pre-requisite but they are separate and different from a course which leads to a degree."
[6]The matter came before me for reconsideration of the appellant's appeal. The submissions on behalf of the appellant[7]Mr Mannan submitted that EThames Graduate School was included on the Department for Education and Skills Register of Education and Training Providers. The appellant was a South African and therefore a non-visa national. In these circumstances she would be entitled to switch without having had entry clearance as a student. He referred me to paragraph 6 of the immigration rules which defined 'degree level study' as a course which led to a recognised United Kingdom degree at bachelor's level or above, or an equivalent qualification at level 6 or above of the revised National Qualifications Framework, or level 9 or above of the Scottish Credit and Qualifications Framework. He submitted the appellant had been enrolled on a three year BSc Management degree course. At the end of her first year if she achieved an HNC then she would move onto an external degree course leading to a degree from the University of London. He submitted that such a course qualified as degree level study. She was to study for a degree that would be awarded by a recognised university, namely the University of London, and it was not relevant that she was not enrolled at the University of London. Mr Mannan said that he did not have any evidence that HNCs were at the new revised level 6 but both he and Mr Hutchison agreed that I might research the position myself and treat the results as evidence adduced in the course of the hearing. The submissions on behalf of the respondent[8]Mr Hutchison submitted that much depended on the definition of 'leads'. The appellant was enrolled on a one year course at EThames. It could be argued that her course led to an HNC after which if successful she would be entitled to enrol upon a degree level course of study. He submitted that the immigration judge had made an analogy with 'A' levels. He submitted that that was a correct analogy. If the appellant was not enrolled at the University of London her course led to an HNC and not to a degree. My conclusions[9]The relevant part of paragraph 60 of the immigration rules provides as follows:
"The requirements for an extension of stay as a student are that the applicant: (i) was last admitted to the UK in possession of a valid entry clearance in accordance with paragraphs 57-75M or 82-87F of these Rules, unless the applicant: ………………….. (c) is a non-visa national who has been accepted for a course of study at degree level or above, and who entered the UK with leave in accordance with the provisions of any category of these Rules, other than paragraphs 40-56J, 82-87, 104-121, and 135I-135N; or……….."
[10]Paragraph 6 of the immigration rules defines "degree level study" as:
" a course which leads to a recognised United Kingdom degree at bachelor's level or above, or an equivalent qualification at level 6 or above of the revised National Qualifications Framework, or level 9 or above of the Scottish Credit and Qualifications Framework"
[11]Neither representative was able to provide me with any authority during the course of the hearing. In suggesting that the appellant's proposed course led to a degree it may well be that at the back of Mr Mannan's mind was the determination of the tribunal in TY (Student; "satisfactory progress"; course of study) Burma [2007] UKAIT 00007 . In that case in paragraph 11 of their determination the Tribunal said:
"The phrase 'course of study' is capable of encompassing more than one course, though it need not. A 'course of study' is the sum total of the parts (courses) which coherently add together and lead to the educational outcome sought, such as a certificate or other qualification. Thus, a 'course of study' may comprise a foundation course followed by other more advanced courses which together, if successfully completed, lead to the qualification. The contrast therefore is with the parts (the 'courses' which themselves may be comprised of modules) and the whole or overall educational endeavour (the 'course of study'). That is not to say that a 'course of study' must always comprise more than a 'single' course. Whether it does will depend upon the structure of the 'course of study' itself."
It is important to appreciate, however, that the Tribunal was dealing with the obligation on the part of an applicant to demonstrate satisfactory evidence of regular attendance on the course for which he was last granted leave to enter or remain and was not concerned with the definition of a course of study at degree level or above.[12]In YS and SJ ('Degree level' study) Mauritius [2006] UKAIT 00094 the Tribunal held that the requirement of 'a course of study at degree level or above' in paragraph 60(i)(b) of HC 395 had to be interpreted in accordance with paragraph 6 of the rules and also sections 214-216 of the Education Reform Act 1988. The condition could be met only if the claimant had been accepted for a course leading to a degree awarded by an institution capable of awarding a degree recognised by the Act. Dublin Metropolitan University was not such a body. The Tribunal also indicated the correct approach to the situation in the present case in dealing with the suggestion that the appellants had by the date of the hearing enrolled upon courses leading to a recognised degree. In paragraph 25 of their determination the Tribunal said:
"Under cover of a letter to the Tribunal dated 18 September 2006, the appellants have provided evidence that each of them is enrolled at the London Institution for Further and Higher Education, 19 Elmwood Road, Croydon, for a full-time course leading to an advanced diploma of the Association of Business Executives. The first appellant's diploma is to be in business information systems and his start date is given as 26 June 2006; the second appellant's diploma is to be in business administration and her start date is given as 16 October 2006. As is demonstrated by a letter from IND to the registrar of that institution, an ABE advanced diploma is regarded as a qualification at "degree level" for the purposes of the definition in paragraph 6 of HC 395. That is not because it is itself a degree, but because it is at level 6 or above of the revised National Qualifications Framework. We take it that the letters were intended to demonstrate that, at the date of the hearing, the appellants met the requirements of the Immigration Rules. It is possible that s85(4) of the 2002 Act was to be invoked. The position is, however, as Mr Tam pointed out, that registration for an ABE advanced diploma could not of itself show that the appellants met all the other requirements of paragraph 60. There is no evidence that they do meet the other requirements of paragraph 60, and the matter has never been investigated, because the refusal was solely on the basis of their failure to meet the requirements of paragraph 60(i)(b). There is a further problem. Each of the appellants' enrolment for the diploma is specifically conditional on meeting the "necessary entry requirement to pursue the course"
. According to the only evidence before us on the matter, which is paragraph 3.7.3.4 of the Respondent's Immigration Directorates' Instructions, in order to qualify for entry onto either of the advanced diplomas, an entrance must have attained an ABE diploma in the relevant discipline, a degree awarded by a recognised United Kingdom or overseas university, or another recognised qualification on an approved overseas institute of higher education. There appears to be no evidence before us that either of the appellants was qualified to embark on a course leading to an ABE advanced diploma…."[13]There is in the reconsideration bundle a letter from the E Thames Graduate School dated 21 st December 2006 addressed to the respondent which states that the principal could confirm that the appellant was currently studying for a BSc Management from the University of London external programme. Although it might have appeared that the appellant had enrolled upon a course to be provided by E Thames which would lead to a degree in management, what caused difficulty for the appellant in this case was that the Secretary of State received a letter from the University of London dated 12 th January 2007 stating that the appellant was not registered as an external student of the University of London and had not submitted an application for admission for the BSc Management Degree (or any other programme). The letter went on to say that she would not be admitted unless she satisfied the entrance requirements for admission to the programme for which she wished to apply. In paragraph 16 of her determination the immigration judge referred to the evidence of the appellant that she would achieve a Higher National Certificate at the end of her first year.[14]I am satisfied that therefore the position was that the appellant had embarked upon an HNC course for a year to be followed by an external degree course provided that she satisfied the registration requirements of the University of London as an external student. Although the teaching for the courses was to be provided by EThames, nonetheless it is clear that the appellants had not yet enrolled upon the external degree course and her enrolment was conditional upon her success in the HNC examinations. In these circumstances her situation was on all fours with that of the appellants in YS and SJ ('Degree level' study) Mauritius. If the question were asked whether the subjects which the appellant was studying for her HNC course formed part of her proposed degree course the answer in my view would clearly be in the negative. It seems fairly obvious that studying subjects which if successful will result in an HNC cannot be degree level study. Mr Mannan's submission that the situation of the appellant was similar to that of a first year degree course student whose further progression depended upon success in examinations at the end of the first year is not correct since no-one would doubt that such a student had been accepted on a degree level course and his first year's studies formed part of that course. No doubt it suits the commercial interests of EThames Graduate School, whose name suggests the provision of courses at degree level, to advertise the two courses together as a BSc Management course but in my view the HNC element of the course does not amount to a course of study at degree level or above.[15]There is support for this view to be found in the determination of the Tribunal in TF (student – conditional offer not acceptance) Pakistan [2007] UKAIT 00029 . In that case the appellant had been accepted on by New College Nottingham, on an English language course from July 4th, 2005 – August 26th 2005 and had a conditional offer for progression on to the GSCE programme starting on 5 September 2005 for one year. To progress the student had to achieve the required IELTS level 5.5 and obtain a satisfactory progress and attendance report.[16]In paragraph 15 of the determination the Tribunal said that the structure of section 91(1)(a) and (b) of the Nationality, Immigration and Asylum Act 2002 was 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 had been accepted was one that lasted six months or less, she could not appeal against the refusal of entry clearance, whether or not she had an aspiration to follow some other longer course for which she had not been accepted.[17]In paragraph 19 of the determination the Tribunal said: "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".[18]So far as the suggestion that the appellant's HNC course was at level 6 of the National Qualifications Framework is concerned the immigration judge noted in paragraph 16 of her determination that she had been provided with no documentary evidence that it was. In the third ground for review it was asserted that "HNC/Degrees" were at the new revised level 6. If that were the case then it should have been a simple matter for Mr Mannan, who also represented the appellant at the hearing before the immigration judge, to have provided a print out from the relevant web page but none was forthcoming. As previously indicated both representatives agreed that I might research the point myself and regard the result as if evidence of it had been adduced during the hearing. I was not able to find the web page referred to in the grounds for review but the result from www.edexcel.org.uk/nqf-grid/ clearly shows that HNCs are at the revised level 5 of the National Qualification Framework.[19]In these circumstances I am not satisfied that the immigration judge made a material error of law in her determination and her determination dismissing the appeal therefore stands. Signed Dated Senior Immigration Judge Spencer