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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> ML (student; “satisfactory progress”; Zhou explained) Mauritius [2007] UKAIT 00061 (12 July 2007) URL: https://www.bailii.org/uk/cases/UKIAT/2007/00061.html Cite as: [2007] UKAIT 61, [2007] UKAIT 00061 |
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ML (student; “satisfactory progress”; Zhou explained) Mauritius [2007] UKAIT 00061
Date of hearing: 19 June 2007
Date Determination notified: 12 July 2007
ML |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
For the Appellant: Mr P Morris instructed by IAS
For the Respondent: Mr G Saunders, Senior Home Office Presenting Officer
(1) The Court of Appeal in Zhou v SSHD [2003] EWCA Civ 51 was not concerned with the proper construction of para 60(v) of HC 395; (2) The Tribunal's decision in TY [2007] UKAIT 00007 on the meaning of "his course of study" in para 60(v) is correct; (3) However, it follows from the analysis in Zhou that "satisfactory progress" has to be established in the "course of study" for which leave as a student was last granted because there is no mechanism for the Secretary of State to approve transfer to another course of study during the period of that leave.
"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;…"
"19. It seems to us, taking that as an underlying feature of the student rules read together, "his course of study" in paragraph 60(v) also focusses on the "course of study" for which leave to enter or remain was last granted. We see nothing unfair or surprising in requiring the applicant to show 'satisfactory progress' in that "course of study" rather than any other. Why should the individual's progress be assessed by reference to any other "course of study" when further leave is requested? It is the one for which leave was most recently granted or, if appropriate, for which a transfer was subsequently approved by the Secretary of State. Any previous course(s) of study will have been taken into account in earlier decision(s) to extend the individual's leave. It is the course of study which the individual either wishes to continue or, at least in leave terms, is the most immediate, against which it is most appropriate to assess progress. Indeed, we do not consider there to be any justification for an individual to obtain leave for a course of study and then switch to a less difficult one because it proves too difficult but claim, as is proposed in this case, 'satisfactory progress' in the lesser course. Usually such an individual will have shown, in reality, that the leave granted to undertake the more difficult course was in retrospect mistaken."
"30. One can foresee many circumstances in which a person admitted as a student who embarks on a course which complies with the requirements of paragraph 57 may find that he is, perhaps temporarily, unable to maintain 15 hours a week attendance on the course. The college may, because of unforeseen circumstances find that it cannot provide 15 hours a week tuition in the chosen subject. The course may prove unsatisfactory and the student may wish to transfer to another teaching institution – as happened in this case. We do not understand it to be suggested that such events would place someone admitted as a student in breach of a condition attached to the leave to enter, so as to render that person liable to removal under section 10 of the 1999 Act. It seems to us patently unsatisfactory that such an event should render that person in breach of Code 2, and quite possibly guilty of an offence under section 24 of the 1971 Act, if he continues in temporary employment, particularly as the earnings from this might be necessary to supplement income needed for subsistence."
"32….Leave to enter 'as a student' determines an individual's student status at the moment of entry. Thereafter, for the period for which leave to enter has been granted, the basis upon which the individual remains within the country is that leave to remain here for the period in question has been given to him 'as a student'. His leave to enter is subject to the Code 2 prohibition on unauthorised employment, but that itself is subject to the standing authorisation granted to students by Chapter 4 [of the IDI] to accept part-time employment. If those who are permitted to enter as students for a period continue to enjoy student status during that period there will be no room for doubt that, while they are subject to Code 2, they are entitled to work part-time under Chapter 4."
"34…the natural meaning of the word 'student' in the IDI is a person who has been given leave to enter 'as a student'. This, coupled with the practical considerations considered above, has led us to conclude that Mr Zhou's first ground of challenge of the Secretary of State's decision is made good. Mr Zhou remained at all material times a 'student' for the purposes of Chapter 4. His part-time employment at Waitrose was authorised. He was not in breach of any entry condition, and the decision to remove him was unlawful."
Decision
A GRUBB
SENIOR IMMIGRATION JUDGE
Date: