Zhou v Secretary of State for the Home Department

For the purpose of the standing authorisation in Chapter 4 of the Immigration Directorates’ Instructions, a person granted leave to enter as a student remains a student throughout the period of that leave. The status does not depend on continued attendance for 15 hours each week or on continuing to meet every entry requirement in paragraph 57 of HC 395.

Accordingly, a Code 2 student’s part-time work is authorised by Chapter 4 unless the leave or its conditions have been varied or curtailed. Poor attendance alone does not make such work a breach of a condition capable of justifying removal under section 10 of the Immigration and Asylum Act 1999.

The appellant, a Chinese national admitted to the United Kingdom as a student, held leave until October 2002 subject to Code 2 conditions. While enrolled at Brooklands College, he worked for 12 hours a week at Waitrose. After his attendance and academic progress became poor, and he left the college, an immigration officer treated his employment as unauthorised and directed his removal under section 10 of the Immigration and Asylum Act 1999.

Goldring J refused permission to apply for judicial review. The Court of Appeal granted permission and proceeded, by agreement, to determine the judicial review. The central issue was whether a person with leave to enter as a student ceased to be a “student” for Chapter 4 of the Immigration Directorates’ Instructions when no longer regularly attending the course.

1. Appeal allowed. The court granted permission to apply for judicial review and quashed the Secretary of State’s decision to remove the appellant.

2. Chapter 4 authorised students over 16 with Code 2 conditions to undertake part-time or vacation work. Its reference to “students” had to receive a sensible construction according to the natural meaning of its words. The court applied the approach in Alexander v Immigration Appeal Tribunal [1982] 2 All ER 766.

3. The Secretary of State’s proposed meanings were rejected. Paragraph 57 of HC 395 prescribed the requirements at the time of seeking leave to enter as a student. It did not make continuing attendance for 15 hours each week the criterion of student status under Chapter 4. A fact-and-degree inquiry into whether a person was pursuing a full-time course was also too uncertain where breach of an entry condition could lead to removal and criminal liability.

4. The wording of paragraphs 57 and 58, the surrounding Instructions, and the practical consequences showed that a person given leave to enter as a student retained that status for the period of the leave. The appellant therefore remained a student for Chapter 4. His 12-hour weekly employment was authorised, he had breached no entry condition, and removal under section 10 of the Immigration and Asylum Act 1999 was unlawful.

5. The court added that, if the Secretary of State wished to remove a student who was no longer pursuing study, the appropriate course was ordinarily to curtail the leave under section 3(3)(a) of the Immigration Act 1971 and paragraph 323 of HC 395, followed by removal. Alternatively, actual pursuit of study could be made an express condition of entry.

6. The second ground failed. The abandoned dispute about attendance did not require investigation, and allegations about the college’s treatment of students seeking to leave did not bear on the removal decision.

• Court of Appeal (Civil Division) — in [2003] EWCA Civ 51, granted permission to apply for judicial review, allowed the appeal, and quashed the removal decision.
• Administrative Court — Goldring J refused permission to apply for judicial review on 17 May 2002.
• Administrative Court — Sullivan J had earlier refused permission to apply for judicial review on 12 April 2002; the application was renewed before Goldring J.