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Term time employment and thesis students
By Taffy
Nyawanza
THE Asylum and Immigration Tribunal has just notified
an important decision that clarifies the oft asked question; can a student
writing a thesis work more than the permitted 20 hours? The answer is
no, and this decision should serve as a salutary warning to students
in ‘writing up’ but with student visas.
The appellant in OG (Student – thesis – term time employment) Nigeria [2008] UKAIT 00057 had obtained various extensions as a student, and lately sought further leave to remain as a student in order to study for an MBA.
The application was refused on the basis that he had not shown that he had not engaged in business or taken employment without the consent of the Secretary of State for Employment in the light of wage slips produced which showed that he had consistently worked for over twenty hours a week.
On reconsideration, his argument was that while he had worked over the allowed time, the issue was what was meant by "term time" since he had been writing up a thesis during the period in question.
The decision identified, among other issues to be determined, the issue of how "vacation" should be construed, particularly with reference to cases involving a thesis and student cases generally and whether or not the appellant acted in breach of his conditions of leave.
The Home Office’s argument was simply that the fact that the appellant was writing up a thesis did not preclude him from the obligation to work for no more than twenty hours during term time. This was because it had been made clear to him on grant of leave that the appellant could work full-time during vacation periods but that he must not work more than twenty hours per week during term time, and whether a person was studying by attending classes during a course or writing a thesis or dissertation, the obligation remained the same.
The appellant’s argument was equally simple; that the period in question was a period when he was doing his ‘writing-up’ but not "term time" and, therefore, he was not restricted. Reference was made to a letter in which it was pointed out that due to the fact that the appellant only had to do his thesis, there was no term time schedule but that he had to brief and give his supervisor reports of his progress on the work with a given period by which to submit his thesis.
The Tribunal began by considering that the purpose behind the Immigration Rules was that leave to enter the United Kingdom or to remain in the United Kingdom for the purpose of study is not to be equated with a work permit. The Tribunal pointed out that when a person comes to the United Kingdom to study, it is follows that concomitant with that permission, the essential purpose of their stay is to study.
Further, it was clear that a student in the United Kingdom, having been granted leave to enter for the purpose of study, is permitted to work full-time during vacation periods but is allowed to work no more than twenty hours per week during term time. The Tribunal confirmed that this was for the obvious reason that it is expected that he will spend significant amounts of his time in study.
On the other hand, a person who has leave for writing up a thesis (which was not the position in this case) is relieved of the obligation to work only 20 hours. But where a person has leave as a student, it made no difference that he was writing up a thesis at that time rather than attending classes at the university. The obligation to work for no more than twenty hours per week during the term time of that university was an obligation that extended to him even given the nature of the academic work he was doing at that time.
The Tribunal therefore concluded that the Home Office was right to assess the appellant as having breached the requirements of the student immigration rules and to refuse his application for extension as a student.
Hopefully, this case clarifies a very common misconception amongst post-graduate students doing their ‘write-ups’ and saves them from coming to grief on this point.
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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