GO (Nigeria) & Anor v Secretary of State for the Home Department

At the permission stage, the Court of Appeal may grant permission and link an application to related appeals where a common legal issue is already listed for determination, even though the judge provisionally considers the proposed appeal unlikely to succeed. This avoids inconsistent outcomes if the provisional view later proves wrong. The court provisionally considered that Rule 60(v) of the Immigration Rules focuses on satisfactory progress in the course for which student leave was granted, or a transfer approved by the Secretary of State, rather than a substantially different course undertaken without the Secretary of State’s knowledge. It did not finally determine that construction. It also noted the restricted appellate role on appeals from the Asylum and Immigration Tribunal, in light of [2007] UKHL 49.

GO (Nigeria) and HZ (Iran) had entered the United Kingdom as students and sought further extensions of leave after changing their courses; GO also changed institution. The Secretary of State refused the applications on the basis that neither applicant showed satisfactory progress in the relevant course. The Asylum and Immigration Tribunal, in AIT Nos IA/08444/2006 and IA/00458/2007, adopted the approach in TY (Student; “satisfactory progress”; course of study) (Burma) [2007] UKAIT 00007. Moses LJ refused permission on paper. On renewal, Buxton LJ treated the interpretation of Rule 60(v) as central, but noted that related appeals raising the same issue were listed for hearing. The applications therefore concerned whether permission should be granted and the cases linked, while other proposed issues, including legitimate expectation, remained to be clarified.

Lord Justice Buxton granted both applications for permission to appeal and directed that they be linked with related cases listed for hearing on 7 and 9 April.

1. The central issue concerned Rule 60(v) of the Immigration Rules, which requires evidence of satisfactory progress in the relevant course of study. The AIT had relied on TY (Student; “satisfactory progress”; course of study) (Burma) [2007] UKAIT 00007, which treated the relevant course as the course for which leave had been granted or a transfer to which had been approved by the Secretary of State. Buxton LJ provisionally agreed that progress on a substantially different course undertaken without the Secretary of State’s knowledge would not satisfy the rule.
2. That provisional view did not justify refusing permission in these cases. A series of related appeals raised the same interpretation of Rule 60(v) and the correctness of TY. It would be unsatisfactory to refuse permission if the later determination showed that the provisional view was wrong. The cases were therefore to be heard together, without finally deciding the merits.
3. Any additional issues, including legitimate expectation, had to be set out in revised grounds and skeleton arguments. The Secretary of State could object to points not ventilated below. Revised documents were permitted within a maximum of 28 days.
4. For the record, the court noted the House of Lords guidance in SSHD v AH (Sudan) and others [2007] UKHL 49, particularly paragraph 30, concerning the very restricted role of the Court of Appeal in appeals from the Asylum and Immigration Tribunal. That issue was left for the substantive appeals.

Order: Applications granted.

1. Court of Appeal (Civil Division): Buxton LJ granted permission to appeal in both applications, directed that they be linked with related appeals, and allowed a maximum of 28 days for revised grounds and skeleton arguments.
2. Court of Appeal (Civil Division): Moses LJ had refused permission on paper in both cases.
3. Asylum and Immigration Tribunal: The AIT determinations upheld the Secretary of State’s refusals of further student leave, applying TY (Student; “satisfactory progress”; course of study) (Burma) [2007] UKAIT 00007.