VB v The Secretary of State for the Home Department

In a student appeal, satisfactory attendance and satisfactory progress are separate requirements. A strong attendance record does not, without more, establish satisfactory progress on the course.

Progress may be established by evidence such as participation, application, assessed work and examination or test results. Where reliable evidence demonstrates both satisfactory progress and compliance with the other relevant student requirements, the appeal should succeed.

The appellant, a Jamaican national, appealed against the refusal of her application for further leave to remain as a student. An Immigration Judge dismissed the appeal, referring to a lack of evidence of attendance or progress and to aspects of the Tier 4 points-based system.

Permission to appeal was granted. By the Upper Tribunal hearing, the parties accepted that the appellant could change courses. The remaining issues included the registration status of South Chelsea College and whether there was satisfactory evidence of attendance and progress under the applicable student rules.

The appellant produced evidence of high attendance and, following an adjournment, evidence of class participation and test results. The central issue was whether attendance could itself demonstrate satisfactory progress.

1. Appeal allowed. The appellant satisfied the relevant requirements of the Immigration Rules.

2. The Tribunal rejected the submission that anticipated future examinations, coupled with satisfactory attendance, amounted to satisfactory progress. Attendance and progress are distinct concepts. A record showing that a student attends classes regularly does not establish that the student is progressing satisfactorily in the course.

3. The evidence initially produced showed 95% attendance, but did not itself demonstrate progress. The Tribunal therefore adjourned to permit the appellant to obtain evidence specifically addressing progress.

4. The subsequent letter from the college provided that evidence. It described acceptable class participation, above-average application and concentration, and test marks of 64% and 58% in two course units. The class tutor also considered that the appellant would pass the remaining unit. The respondent accepted that this was good evidence of progress.

5. Together with the college's return to the register, the evidence established compliance with the relevant student requirements. No remittal was required.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appellant's appeal against the Immigration Judge's dismissal after receiving evidence of satisfactory progress.
• Immigration Judge: Dismissed the appeal against the refusal of further leave to remain as a student.