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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> KL (Student: IDI "warning" about progress) India [2007] UKAIT 00005 (12 January 2007) URL: https://www.bailii.org/uk/cases/UKIAT/2007/00005.html Cite as: [2007] UKAIT 5, [2007] UKAIT 00005 |
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KL (Student: IDI "warning" about progress) India [2007] UKAIT 00005
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 13 December 2006
Date Determination notified: 12 January 2007
Before
Senior Immigration Judge Grubb
Between
KL | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
DETERMINATION AND REASONS
A person seeking an extension of stay as a student must satisfy all the requirements of paragraph 60 of HC 395, including paragraph 60(v) by showing 'satisfactory progress' in his course of study. The obligation in IDI paragraph 3.16.3 that the Secretary of State should warn a student when granting an extension of leave where he has doubts about her satisfactory progress does not detract from the need to satisfy the requirement in paragraph 60(v). Thus, the obligation to warn only applies where the Secretary of State resolves his doubts in the student's favour and so grants leave. The purpose of the warning is to alert the student to potential difficulties should a future application for leave be made. It follows that a student who does not meet the 'satisfactory progress' requirement in paragraph 60(v) is not entitled to leave or a warning.
"On 21 April 2006 you applied for leave to remain in the United Kingdom as a student.
An official has considered your application on behalf of the Secretary of State.
In view of the fact that you failed examinations in May 2004, November 2004 and November 2005 and have only passed 3 subjects in 3 years it has been decided that you have not produced satisfactory evidence that you have made satisfactory progress in your course of study, including the taking and passing of any relevant examinations.
Therefore, you do not satisfy the requirements of the I R for this category and it has been decided to refuse your application for leave to remain as a student under the published immigration rules paragraph 62 with reference to 60(v) of HC 393 (as amended).
In making the decision to refuse your application, consideration has been given to the following:
1. On 15 January 2003 you were granted leave to enter the United Kingdom as a student until 30 January 2005.
2. On 08 March 2005 you were granted further leave to remain as a student until 30 April 2006.
3. On 21 April 2006 you applied for further leave to remain in the United Kingdom as a student.
4. On 21 April 2006 you produced examination results for November 2003, May 2004, November 2004, May 2005 and November 2005 showing you had passed 3 examinations out of a total of 11 taken during that time."
"9. The summary of this is that in November 2003 she sat two papers and failed one. In May 2004 she sat two papers and failed both. In November 2004 she sat two papers and again failed both. In May 2005 she sat two papers and passed both. In November 2005 she sat four papers and failed all. In May 2006 she again sat four papers, passed one and failed three – these being the papers she had taken and failed previously.
10. The enrolment letter from FTC dated 7 March 2005 stated that attendance is compulsory each day and involves 18 to 24 hours of formal tuition each week. In addition, students are required to attend tutorial sessions and are given work to be completed on their own. It goes on to say: students must attend a minimum of three subjects each term to satisfy visa requirements. The examinations are modular and are held every six months. That does not indicate to me, as the appellant has stated in her statement that whether one takes examinations or not is a matter of discretion for the student. I find from the FTC letter that there are relevant examinations to be taken. Furthermore, there is nothing in the FTC letter to suggest that the number of examinations a student sits per term or per annum is a matter for them."
"From the evidence before me, I do not find the appellant has fulfilled the requirements of paragraph 60(v) of HC 395, as amended. She has not shown evidence of satisfactory progress in the course of study including the taking and passing of any relevant examinations."
"The appellant produced credible evidence of satisfactory attendance. Mr Bhatoo submitted that the respondent failed to give the appellant a warning under its IDI before refusing the application. Paragraph 3.16.3 of the IDI states: As a rule. Information is provided on student's attendance and progress on each application for an extension of stay. The student should provide evidence of all examinations he has attempted and the results as required by the application form. Where there are doubts as to progress, but attendance is satisfactory and all other requirements are met, leave may be granted but with a warning that failure to provide satisfactory progress could result in a refusal to grant a further extension of stay in that capacity. I find that the giving of a warning is a matter of the exercise of a discretion on the part of the respondent's caseworker and is not mandatory."
"60. The requirements for an extension of stay as a student are that the applicant:
...
(v) can show evidence of satisfactory progress in his course of study including the taking and passing of any relevant examinations; ...."
"7. The phraseology of the rule is slightly peculiar. Whatever may be its precise effect in the course of an appeal, on the face it does not require the appellant to establish that she has made satisfactory progress by producing evidence: it requires her to produce evidence of certain matters. The evidence is required to be of "satisfactory progress ... including the taking and passing of any relevant examinations". It does not appear to us that it is possible to read that phrase as meaning that evidence of passing any relevant examinations is an optional extra. The clear meaning of the words is that whatever other evidence is also provided, the applicant is required to show that she has both taken and passed any "relevant examinations"."
"3.16.3 Unsuccessful Students
As a rule, information is provided on student's attendance and progress on each application for an extension of stay. The student should provide evidence of all examinations he has attempted and the results as required by the application form. Where there are doubts as to progress but attendance is satisfactory and all other requirements are met, leave may be granted but with a warning that failure to produce evidence of satisfactory progress could result in the refusal to grant a further extension of stay in that capacity."
Decision
A GRUBB
SENIOR IMMIGRATION JUDGE
Date: