AW (Bangladesh) v Secretary of State for the Home Department

Under the student rules, satisfactory progress is an evaluative question. It is not confined to the course for which leave was granted; progress on another recognised course may be considered. Failure to sit or pass examinations is material, but not automatically decisive: its significance depends on the reason. A different evaluation from that reached in another case does not, without more, establish an error of law. Separately, the requirement that a student intends to leave at the end of studies may be assessed by reference to credibility and the overall course history, including prolonged or changing study. A permissible finding that the applicant lacks that intention provides an independent basis for refusal.

The appellant, a Bangladeshi student, challenged refusal of further leave to remain. The Secretary of State concluded that he had not shown satisfactory progress after leaving a university degree course and changing to other courses, and that he had not shown an intention to leave the United Kingdom at the end of his studies.

An Immigration Judge initially dismissed the appeal. On reconsideration, following a material-error finding by consent, Judge Coates dismissed it again on both grounds. The proceedings were a renewed application for permission to appeal after permission had been refused on paper. The central questions were the proper assessment of satisfactory progress under rule 65(v), and whether the finding on intention to leave under rules 60(ii) and 57(vi) disclosed an error of law.

The renewed application for permission to appeal was refused. Carnwath LJ gave the substantive reasons; Toulson LJ and Goldring LJ agreed.

1. Satisfactory progress. The court treated [2008] EWCA Civ 74 as deciding a narrow point. When applying the satisfactory-progress requirement, the decision-maker is not confined to the course for which leave was granted. Progress on another recognised course and the reasons for not sitting or passing examinations may be considered. Examination failure is material, but its weight depends on the reason. It is not enough to show that one immigration judge’s evaluation is more or less generous than another’s. The court was not persuaded that Judge Coates made an error of law on this issue, but treated a final decision on it as unnecessary because the intention issue provided an independent basis.
2. Intention to leave. Rule 60(ii) required compliance with the admission requirements, including rule 57(vi), that the student intend to leave the United Kingdom at the end of studies. The judge was entitled to assess that intention by reference to credibility and the overall position. That included the explanation for leaving Derby, the sequence of course changes, and the proposed prolonged period of study. The finding that the bullying explanation was not credible was accepted as unchallengeable. The resulting finding that the appellant was motivated by a wish to remain permanently was legally available.
3. That conclusion independently sustained refusal of further leave. The order was: application refused.

• Asylum and Immigration Tribunal: Immigration Judge North dismissed the appeal in June 2008. Reconsideration was directed by Senior Immigration Judge Walmsley, and, by consent, a material error of law was found. Judge Coates reconsidered the case and dismissed the appeal in September 2008 on both relevant rules. Senior Immigration Judge Chalkley refused permission in October 2008.
• Court of Appeal: Longmore LJ refused permission on the papers in January 2009. Moore-Bick LJ then adjourned the renewed application for an on-notice hearing. Carnwath LJ, with Toulson LJ and Goldring LJ agreeing, refused the application on 8 June 2009.