Kiet Nhi Luu v The Secretary of State for the Home Department

For paragraph 245ZX(ha) of the Immigration Rules, study leading to a qualification below degree level may nevertheless count as study at degree level. The question is whether the course is taught at degree level and forms part of a route which, together with further study, results in a degree. A foundation course and an advanced diploma can therefore be counted where each provides credits towards the eventual bachelor’s degree. The title or standalone qualification level does not alone determine whether the period counts. Leave granted for post-study work does not count towards the five-year limit, but an error in including it will not affect a refusal where the qualifying degree-level study still exceeds five years.

The appellant, a Vietnamese national, applied for further leave as a Tier 4 (General) Student Migrant to study a master’s degree. The application was refused on the basis that her study at degree level or above would exceed the maximum period permitted by paragraph 245ZX(ha) of the Immigration Rules.

The First-tier Tribunal dismissed her appeal. On appeal to the Upper Tribunal, the respondent accepted that the First-tier Tribunal had wrongly counted a period of post-study work leave. The central issue was whether the appellant’s earlier degree foundation and advanced diploma studies, which led individually to qualifications below degree level, counted as study at degree level for the five-year limit.

1. The appeal was dismissed under the Immigration Rules. Although the earlier tribunal had erred by including post-study work leave in the calculation, that error was not material because the appellant’s relevant study still exceeded five years.

2. Paragraph 245ZX(ha) concerns the level of study, rather than only the level of the discrete qualification awarded at the end of a particular period. Study for a below-degree qualification is capable of counting as study at degree level where it is taught at that level and, when combined with further periods of study, contributes to the award of a degree.

3. The appellant’s degree foundation course counted because it supplied 120 of the 360 credits comprising her bachelor’s degree. It remained degree-level study even though, if taken alone, it would have led to an NQF level 3 qualification.

4. Her advanced diploma likewise counted. Though it was not itself a degree and led to an NQF level 4 qualification, it was degree-level study capable of providing one-third of the credits required for the bachelor’s degree.

5. Once those periods, the final year of the bachelor’s degree, the MBA, and the proposed further master’s course were taken into account, granting the application would permit more than five years’ study at degree level or above. No applicable exception was established. No anonymity order or fee award was made.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal under the Immigration Rules, holding that the First-tier Tribunal’s error concerning post-study work leave was immaterial.
• First-tier Tribunal: dismissed the appellant’s appeal against the refusal of her Tier 4 application. Its decision had treated the post-study work period as part of the relevant calculation.