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Court of Appeal says students can change courses and fail exams
By Taffy
Nyawanza
THE Court of Appeal has passed a very useful decision
which will assist both foreign students and universities and colleges
in the United Kingdom.
The question before it in GOO v Secretary of State for the Home Department [2008] EWCA Civ 747 was: what is the legal consequences if a foreign student who has obtained leave to enter or remain in order to follow a named course embarks on a different course or fails the course examinations?
The Court of Appeal began by observing that;
1) The admission of foreign nationals to study in the UK is not an act of grace. It helps to maintain English as the world's principal language of commerce, law and science;
2) It furnishes a source of revenue (at rates which, by virtue of an exemption from the Race Relations Act 1976, are far higher than those paid by home students) of critical budgetary importance to the UK’s universities and colleges as well as to many independent schools.
3) The laws and rules should, therefore, not place arbitrary or unnecessary restrictions on what foreign students can study here.
4) It is not unusual for a student to realise that he or she has made an unwise choice, or perhaps is being poorly taught, and to change courses or institutions with beneficial results.
5) A rule preventing students from making such a change might well be
arbitrary or unnecessary in the absence of case-specific reasons.
Having set this thinking in motion, the Court of Appeal went on to overturn
a previous case which had pronounced that under the applicable immigration
rules a student could not succeed in an application for an extension
of his or her stay in the United Kingdom unless the student had demonstrated
satisfactory progress on the course for which he had originally been
given leave to enter the UK.
That case had stated that the concerned student could not switch from a course which was difficult to an easier one, and then say that he or she had made satisfactory progress on the second course.
It gave the classic example of a student given leave for three years, and during that time the student does badly and fails the initial examinations, then changes courses, does well and graduates. He will have done nothing wrong in relation to his leave to enter. It is only if such a student then applies for an extension of stay, still as a student, that the law as it stood would stand in his way, because he would be unable to satisfy rule 60(v): he will not have made satisfactory progress in his original course of study and will have failed his initial examinations. It will not help to say that he has done very well and passed all the examinations on the course to which he switched.
This strict and harsh interpretation of the rules was further buttressed by yet another decision in which the Tribunal said that in relation to the need to show regular attendance a student seeking an extension of stay must show regular attendance on the course for which he or she had been granted leave to enter and that students could not be allowed to rely on past attendance on previous courses if their attendance on the course for which they had leave to remain at the time of the decision on their application for an extension of stay had been unsatisfactory.
In yet another case, the Tribunal had set a precedent that in order to show satisfactory progress, a student applying for an extension of stay must show evidence of satisfactory progress in his course of study including the taking and passing of any relevant examinations, and this meant that if the student’s course required him or her to sit examinations and these were failed, the student would be unable to show satisfactory progress and the application for an extension would have to be refused.
A lot of students were, therefore, faced with this trilogy of very negative precedents indeed. Many applications for extension of student visas failed on these grounds, and the Tribunals were not prepared to exercise discretion because of these tough but very clear precedents.
Mr GOO, a Nigerian gentleman, together with seven others joined forces and challenged these rulings in the Court of Appeal. The Court went to the source of the law, being the Immigration Act of 1971, the statute under which the immigration rules are made, and after a thorough analysis of its construction, ruled that there was no authority given to the Secretary of State by this statute to impose conditions upon a student entrant as to which course he or she was to follow. Therefore, the negative Tribunal decisions referred to above were not consistent with the Immigration Act 1971.
In any event, and in addition, the Court pointed out that in the Visa Application Form, applicants were asked whether they intended to do another course after finishing the one upon which they had been admitted, and clearly applicants would not be refused a visa if they said they intended to do another course.
Similar questions were asked in the form to be completed by a student who had already entered the UK and was seeking an extension of their stay as a student.
The Court concluded, therefore, that these forms suggest that the student may progress with time from one course to another, and that the information required on an application to remain as a student clearly contemplates the possibility that the student will not continue (or possibly even embark) on the course for which he or she is admitted.
The Court also observed that there would be circumstances where a student might find that the course upon which he or she had embarked was unsatisfactory and that, therefore, the student would wish to transfer to another course.
The Court concluded, therefore, that the meaning of the relevant rule is that a student who wants an extension of stay must be able to produce evidence of satisfactory progress, whether on the course named in his application for entry clearance or on another recognised course which he or she has undertaken.
With respect to the requirement to pass exams, the court confirmed that there was provision in the Immigration Rules for re-sits. But it went on to state that a failure to sit or to pass relevant examinations will always be material to the evaluation of the student's progress, but whether it is decisive will depend on the reason for it. If the reason is a good one, such as illness or bereavement during a course, then the Secretary of State should grant an extension.
What next?
Students who have been refused an extension of your student visa on the basis that satisfactory progress was not shown, even at appeal, and no matter how long ago, should be able to challenge and re-open such cases and argue the benefits of GOO.
Taffy Nyawanza works for Bake & Co Solicitors of Birmingham. He can be contacted on info@bakesolicitors.co.uk, ph. 0121 616 5025 or visit Bake & Co Solicitors’ website at www.bakesolicitors.co.uk.
Disclaimer:
This article only provides general information and guidance on immigration
law. It is not intended to replace the advice or services of a solicitor.
The specific facts that apply to your matter may make the outcome different
than would be anticipated by you. The writer will not accept any liability
for any claims or inconvenience as a result of the use of this information.
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