OO & Ors v Secretary of State for the Home Department

Leave to enter the United Kingdom as a student confers that immigration capacity. It does not ordinarily confine the entrant to the course or institution identified in the application. When considering an extension under paragraph 60 of the Immigration Rules (HC 395), attendance and progress may therefore be assessed across another recognised course undertaken by the student.

Paragraph 60(v) does not make passing every relevant examination an absolute condition of satisfactory progress. Failure to sit or pass an examination is always material, but its effect depends on the reason. The requirement is satisfied where that reason is consistent with satisfactory progress. The decision-maker must evaluate progress on the evidence as a whole rather than apply either an inflexible examination rule or a distinct test of commitment.

Eight students appealed from determinations of the Asylum and Immigration Tribunal concerning extensions of leave to remain under the Immigration Rules (HC 395). Seven appeals raised common questions about students who changed courses, failed examinations or could not sit them because of circumstances such as illness or bereavement.

A series of tribunal determinations had construed paragraph 60 as restricting assessment to the course for which leave was last granted and as requiring every relevant examination to be passed. The Court of Appeal considered whether that construction was consistent with the Immigration Act 1971, the Rules as a whole and the nature of leave granted in the capacity of a student.

The eighth appeal concerned a student whose lack of satisfactory progress had been established independently of any course-change or examination issue.

1. The seven appeals raising the common issues were allowed or remitted as appropriate; the separate appeal of E O was dismissed. Leave granted “as a student” does not ordinarily restrict the entrant to one course or institution. The statutory scheme, the structure of paragraphs 57 to 60 of the Immigration Rules (HC 395), and the application materials all contemplate movement between courses.

2. Section 3(1) of the Immigration Act 1971 contains no evident power to impose a condition restricting a student to a specified course. The court left open whether the statutory reference to restricting an entrant’s “occupation” could extend to study. It was unnecessary to decide the point because the Secretary of State did not purport to impose such a condition and the Rules were inconsistent with a single-course restriction.

3. Paragraph 57 defines the relevant immigration capacity as that of a student, rather than a student of one subject at one institution. Paragraph 60(iv) expressly permits evidence of attendance on more than one course, while paragraph 60(vi) contemplates a succession of courses. The contrary construction adopted in TY (Burma) and JJ and SS (Gambia) was rejected. The court’s construction corresponded with Zhou v Home Secretary [2003] EWCA Civ 51, which treated student status as continuing during the period of leave.

4. Paragraph 60(v) requires evidence of satisfactory progress on either the course identified in the application for entry clearance or another recognised course undertaken by the student. Failure to sit or pass a relevant examination is always material, but it is not invariably decisive. Its significance depends on the reason. Illness, bereavement or another explanation may be consistent with satisfactory progress.

5. The absolute examination requirement adopted in SW (Jamaica) was rejected. Paragraphs 69A to 69F, dealing with examination re-sits, did not address every legitimate interruption of study. The court approved the practical approach in R v IAT, ex parte Gerami [1981] Imm AR 187: prolonged lack of success informs the assessment but does not automatically disqualify the student.

6. The original immigration judges’ favourable determinations were restored for A G, T G, A M, H Z and G O-O. K M’s appeal and W A’s appeal were remitted for reconsideration under the correct legal approach. E O’s appeal was dismissed because she had not established satisfactory progress and the tribunal had correctly rejected “commitment” as a substitute for the test in the Rules.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 747, the court rejected the tribunal’s single-course and mandatory-examination constructions. It restored five favourable immigration-judge determinations, remitted two appeals and dismissed E O’s separate appeal.

2. Asylum and Immigration Tribunal: In the seven common-issue cases, the tribunal had generally set aside or declined to reconsider favourable determinations by applying the view that progress had to be shown on the course for which leave was granted and that relevant examinations had to be passed. In E O’s case, it found that the test was satisfactory progress rather than commitment and dismissed her appeal.