Gisha Varkey Kampaka Kunnel v The Secretary of State for the Home Department [2012] UKUT 195 (IAC)

[2012] UKUT 00195(IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Venue Given orally at Field House On 23 May 2012 Determination Promulgated…………………………………
Before
LORD JUSTICE McFARLANEUPPER TRIBUNAL JUDGE WARR
Between
GISHA VARKEY KAMPAKA KUNNELAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondentNo appearance for AppellantMr Melvin for RespondentThe First-tier Tribunal Judge had not erred in law in finding that attendance at a course over a period of three months was not a course of study “of at least one academic year in duration” under paragraph 245 HD (g) of the Immigration Rules (HC 395).DETERMINATION AND REASONSDate 2012-06-20
[1]This is an appeal brought by Gisha Varkey Kampaka Kunnel against the determination of the First-tier Tribunal promulgated on 19 December 2011. The brief factual background to the case is that the appellant, who is qualified in her home country of India as a nurse and who was born on 20th March 1983, initially entered the United Kingdom with leave as a Tier 4 student on 20th October 2010. The leave was valid for 12 months until 17th October 2011. In August 2011 the appellant sought to vary her leave to that of a Tier 2 migrant, but that application was refused. Although she had all of the necessary points under Appendices A, B and C to the Immigration Rules, she fell at the hurdle of establishing attendance at a course which was sufficient to come within paragraph 245 HD (g) of the Immigration Rules as they then were. That provision read as follows:
“An applicant who was last granted leave as a Student, a Student Re-Sitting an Examination, a Student Nurse, a Student Union Sabbatical Officer, or a Tier 4 Migrant must have completed studying a course of study of at least one academic year in duration during that period of leave.”
[2]It was accepted on the evidence before the First-tier Tribunal that the appellant did indeed attend a course at City University and was successful in achieving a certificate at the conclusion of that course. The certificate indicates that she completed a module entitled “Overseas Nurses Programme”. The certificate also is precise as to the dates of her attendance and it certifies that she “attended the above course between 23rd November 2010 and 1st March 2011”; a period therefore of just over three calendar months.[3]The position taken by the Secretary of State was that the attendance at this course for that period was insufficient to establish that the appellant had attended a course “of at least one academic year in duration” during the period of her initial leave to be here. She appealed against the Secretary of State’s determination. The outcome of the hearing before the First-tier Tribunal was that whilst the facts were found in her favour in the sense to which we will refer in a moment, it was impossible, concluded the Tribunal, to hold that her attendance at this course came within the definition of “one academic year”.[4]Our advertence to the facts being found in the appellant’s favour is in relation to the description of the course. It seems from what we read in the first Tribunal’s judgment that the course length was a variable commodity. The aim of the course, certainly in part, would seem to be to establish that those attending it achieved a level of nursing proficiency to a particular standard and that the emphasis of the course, once an initial ten days of class-based learning had been completed, was to demonstrate practical aspects of nursing by being placed on particular placements in the Health Service.[5]It therefore was accepted by the Tribunal that the more proficient an individual might be, the shorter their time could be on the course. Paragraph 13 of the determination states:
“While the course could take longer, up to nine months, and the dates on the original confirmation of acceptance of studies document suggested that it would continue until August 2011, those with more experience of nursing took much less time to complete it as it included a practical aspect involving nursing placements after an initial ten days of class-based learning”
. Therefore the picture is that this appellant, who was proficient in nursing, was able to get through the course more quickly than others and therefore was only occupied on the course between the two dates certified in the certificate.[6]The First-tier Tribunal looked at the later policy guidance which has been applied by the Home Secretary, to this category of work, which states that “an academic year” is normally to be regarded as being of at least 8 months in duration. The conclusion of the First-tier Tribunal is in paragraph 20 in these terms, where Judge Ruth said: “In my view, therefore, even though it is correct to say there is no definition of the term “one academic year” in the immigration rules and there appears to have been none in the guidance in force at the date of application, there can be no doubt that a course running for only three months or which can be completed in three months is not a course lasting for at least one academic year”.[7]The point raised in the Grounds of Appeal is to challenge that conclusion. It is said in ground four that the judge took the wrong approach by looking at the time it took for the appellant to finish the course whereas the point should have been that this was a course which could run for a full academic year or for a period of time which would be recognised as occupying a full academic year. The fact that she was able to complete it more quickly should not be held against her. We paraphrase but, as we would read it, that is the thrust of the grounds of appeal.[8]This morning the Tribunal office has been informed by those acting for the appellant that they have had no further instructions from her for some time and their understanding is that she may well have gone back to India already. Nevertheless we have considered the issues raised by the appeal and have heard submissions on behalf of the Secretary of State by the Presenting Officer, Mr Melvin.[9]It is our view that this appeal raises a need to audit the finding of fact undertaken by the First-tier Tribunal. We do not feel it necessary to offer a definition of the phrase “one academic year”. In our view this case was not finely balanced. The conclusion of the First-tier Tribunal was, in effect, that, whatever the definition in nice and precise terms of one academic year may be, a three month course of this type fell very much on the wrong side of the line insofar as that is viewed by the appellant. Our task is straightforward. We have to consider whether there are grounds for interfering with that finding of fact. Having looked at the matter carefully we find there are no grounds for interfering with the finding of the First-tier Tribunal on this key, indeed only, point in the case and we therefore dismiss the appeal and uphold the determination of the First-tier Tribunal. Signed Date Lord Justice McFarlane