OR v The Secretary of State for the Home Department

Under the version of the points-based student rules in force on 6 February 2010, there was no general requirement that a student be able to follow the proposed course or demonstrate a particular command of English.

Where cancellation under paragraph 321A of the Immigration Rules is based on a material change of circumstances since entry clearance, the respondent bears the burden of proving the change. That ordinarily requires evidence establishing the circumstances at the time entry clearance was granted. An immigration officer may question a person on arrival and cancel entry clearance if a proved change has removed the basis for admission, but suspicion arising on arrival is insufficient.

The appellant, a Bangladeshi national, arrived with entry clearance as a Tier 4 (General) Student to study business management at Westminster Academy. On arrival, an immigration officer found that he had very limited English and cancelled his leave under paragraph 321A of the Immigration Rules, on the footing that a proposed pre-sessional English course represented a significant change of circumstances.

Immigration Judge Monro dismissed the appeal. The appellant appealed to the Upper Tribunal, contending that the points-based rules did not require him to show an ability to follow the business course in English and that the respondent had not proved a material change since the visa was issued.

1. Appeal allowed. The Immigration Judge made an error of law. The Upper Tribunal substituted a decision allowing the appeal under the Immigration Rules.

2. The former requirement in paragraph 57 that a student be able to follow an approved course did not form part of the points-based rules applicable when the appellant obtained entry clearance. The judge therefore erred by treating the appellant's ability to follow a business course taught in English as a requirement for admission.

3. For cancellation under paragraph 321A, the respondent bore the burden of proving the facts said to establish a material change of circumstances. To establish a change, the respondent had first to establish the original circumstances. It had produced neither the visa application nor the decision granting entry clearance. There was no evidence that the appellant had represented that he possessed sufficient English to begin the business course immediately.

4. The conflicting material from the college and the appellant's limited English on arrival did not prove a material change since the grant of entry clearance. Nor had the respondent pursued an allegation of false representations or false documents.

5. An immigration officer was entitled to question the appellant on arrival and could have cancelled the visa if a proved change had removed the basis of admission. On the evidence, however, this was not such a case.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal and substituted a decision allowing the appeal under the Immigration Rules.
• Immigration Judge: Immigration Judge Monro had dismissed the appellant's appeal against cancellation of his leave to enter.