RS (Pakistan) v Secretary of State for the Home Department

Under the Tier 4 points-based scheme, a student seeking leave to remain to re-sit examinations must still be engaged on a qualifying course meeting paragraph 120 of Appendix A to the Immigration Rules (HC 395). A sponsor’s confirmation, private study, or completion of the original course does not satisfy that requirement. The Rules are read according to their natural and ordinary meaning, using a sensible and relatively liberal approach appropriate to administrative policy, but without straining their language. The disjunctive wording of paragraph 119 does not remove the separate course requirement in paragraph 120. A student who does not need to study in the United Kingdom may leave and seek re-entry as a Student Visitor. The scheme therefore does not permit indefinite residence with permission to work while examinations are deferred.

The appellant, a Pakistani national, had completed a Graduate Diploma in Law but failed his examinations. He sought further Tier 4 leave to remain so that he could re-sit them several months later, without attending a current course of study. His sponsor confirmed that the examinations had to be re-taken, but also confirmed that the original course had ended and that he was not attending classes.

The Secretary of State refused the application because the appellant was not undertaking a course involving the required organised daytime study. Immigration Judge Meates dismissed the appeal. Senior Immigration Judge Waumsley dismissed the further appeal, holding that paragraph 120(d)(iii) concerned a current course rather than a previously completed course. The appeal concerned the proper interpretation of paragraph 120, including whether a student re-sitting examinations had to undertake a qualifying course.

1. Appeal dismissed. Mrs Justice Baron gave the leading judgment. Lord Justice Patten and Lord Justice Carnwath agreed.
2. The Rules should be construed sensibly according to the natural and ordinary meaning of their words, rather than with the strictness applicable to legislation. That approach, stated in Mahad & others v Entry Clearance Officer [2009] UKSC 16, does not permit a construction strained beyond reasonable linguistic meaning.
3. The previous student rules did not control the interpretation of the current scheme because the regimes were materially different. The current scheme gives students greater freedom to work, but requires them to demonstrate a need to be enrolled on and attend a qualifying course. The general policy of welcoming foreign students, reflected in GOO & others v SSHD [2008] EWCA Civ 747, did not justify reading down clear requirements.
4. Paragraph 119 and paragraph 120 operated separately. The word “or” in paragraph 119 addressed the distinct situations of re-sitting examinations and repeating a module. It did not remove the requirement in paragraph 120 that the applicant undertake a compliant course. Under paragraph 120(d)(i) or paragraph 120(d)(iii), a student re-sitting examinations had to be engaged on a current full-time course or a course involving at least 15 hours of organised daytime study, as applicable. A sponsor’s confirmation that examinations had to be re-taken, without current study, was insufficient.
5. The interpretation did not produce absurdity. A student could undertake a suitable revision, refresher or additional course, or leave the United Kingdom and apply from abroad for a Student Visitor visa under Rule 56K to return for the examinations. The appellant’s construction would permit repeated extensions, employment and no study for as long as examinations were deferred, which was not the purpose of the scheme.

1. Court of Appeal (Civil Division): The appeal was dismissed on 18 April 2011. The court upheld the interpretation of paragraph 120 adopted below.
2. Upper Tribunal (Immigration and Asylum Chamber): Senior Immigration Judge Waumsley dismissed the further appeal after a hearing on 19 August 2010. The determination was promulgated on 2 September 2010.
3. First-tier Tribunal: Immigration Judge Meates dismissed the appellant’s appeal in a determination promulgated on 7 April 2010.