In a recent Court of Appeal case (GO and Others v Secretary of State for the Home Department 1 July 2008), Lord Justice Sedley, Lord Justice Longmore and Lord Justice Moses delivered a judgement which will have significant consequences for Colleges and Universities, as well overseas students who are refused Further Leave to Remain after changing courses.
The judgement on overseas students being able change their courses and extend their stay in the United Kingdom, turns on being able to produce “evidence of satisfactory progress”, whether on the course named in their Student Visa application or on another recognised course.
Many students who come to the UK to study find that their courses are not suitable or in some cases that the College fails to deliver the course for which they have paid.
I recently met a Filipina nurse who had come to the UK to study Management, but found that the College was not only ill-equipped, but could not even run the course due to a lack of students. She has since decided to take up an NVQ in Health and Social Care at Majestic College and will need to inform the Home Office.
Lord Justice Sedley questioned the legal consequences if a foreign student who had obtained leave to enter or remain in order to follow a course later switched to a different course or failed the course examinations?
The consequences arose from the provisions of the Immigration Rules (HC 395) governing leave to enter or remain as a student (rules 57 to 62) and leave to enter for the purpose of resitting an examination (rules 69A to 69F).
Central to the present case was the requirement of rule 60(v) that a student who wanted an extension of stay must produce “satisfactory evidence of regular attendance in his course of study, including the taking and passing of any relevant examinations”.
A series of Asylum and Immigration Tribunal appeal cases ruled that a student could be confined to the course for which leave to enter was given and to make passing the course examinations a requirement of any extension of stay. Their Lordships found that that interpretation was inconsistent with the Immigration Act 1971 and the Immigration Rules read as a whole.
In their Lordships’ judgment, “the granting of a student visa did not confine the student to a single course of study, and failing an examination did not always negate satisfactory progress”.
Overseas students who want an extension of stay must produce evidence of satisfactory progress, whether on the course named in their entry clearance application or on another recognised course subsequently undertaken.