[2003] UKIAT 00043 S (India)

IMMIGRATION APPEAL TRIBUNAL

Date heard:  21 July 2003 
Date notified: 19 August 2003
 Before:-.

DR H H  STOREY (Chair)
MR A  JEEVANJEE

                                                               Between

                                                 
                                                                                                                      Appellant

                                                                  And

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DETERMINATION AND REASONS

1. The appellant, a national of India, has appealed with leave of the Tribunal against a determination of Adjudicator, Miss R L Meates, dismissing the appeal against the decision by the respondent refusing to vary leave to remain as a student. Miss J Onalo of IAS (Tribunal Unit) represented the appellant. Ms T Hart appeared for the respondent. 

2. The Tribunal has decided to dismiss this appeal.

3. The adjudicator dismissed the appeal because she was not satisfied the appellant had shown he was able to follow the course of studies involved. 

4. The grounds as amplified by Miss Onalo contended that the adjudicator erred in taking into account the appellant’s student history prior to his date of last entry  “as he was not physically in UK”. They further contended that since the appellant’s absence from his course was due to valid medical reasons the adjudicator was wrong to conclude he had been unable to follow his course of studies. Miss Onalo highlighted the written evidence from the appellant’s tutors confirming his academic ability. 

5. As to the first main ground of appeal, we consider it misconceived. The appellant had come to the UK as a student and, having returned to India to recover from his illness, was re-admitted under the same conditions as before. Hence when he made his application for further leave to remain as a student, the Secretary of State was perfectly entitled to consider his previous student history taking account of all his periods of absence from study whilst here and abroad. 

6. Miss Onalo relied mainly on the second contention. She pointed out that it was not in dispute that the appellant had diligently pursued his studies except when he was ill. The adjudicator had accepted that his failure to attend his course and to pursue it was through no fault of his own. He had suffered a serious depressive illness. It went to his credit that when he realised in 2001 that he needed more time to recover, he returned to India to recuperate. 

7. Having considered the medical evidence, we entirely accept that the appellant has suffered from a serious depressive illness. However, at the date of decision (8 November 2001) the basic facts were as follows. The appellant had arrived in the UK in September 1999 and was given leave to enter as a student until August 2001 to pursue an ACCA qualification at the International College of Accountancy. He attended between September 1999 and March 2000. In early March/April 2000 he developed symptoms of depression and left the UK around June 2000. He returned to the UK in July 2001, writing on 23 August 2001 to say that he was now “well enough to resume my studies”. He was due to recommence his course in September 2001. He unfortunately suffered a relapse. Thus between September 1999 and November 2001, i.e. period of just over two years the appellant had only attended classes for three months and had been outside the UK for as long as 11 months. Furthermore, despite asserting that he had recovered sufficiently to resume his studies in August 2001, the appellant had suffered a further relapse. 

8. The appellant’s case fell to be decided under paragraphs 60(iv) and (v) of HC 395 which state as follows: 

“[The requirements for an extension of stay as a student are that the applicant:]

…
(iv) can produce satisfactory evidence of regular attendance during any course which he has already begun; or any other course for which he has been enrolled in the past; and
(v) can show evidence of satisfactory progress in his course of study including the taking and passing of any relevant examinations….”

9. We must also mention that 60 (i) requires that the applicant meet the requirements of paragraph 57 which include at 57(ii) the requirement that he is able and intends to follow his course. 

10. What we have to examine is whether the adjudicator in this case properly applied the relevant legal provisions to the facts in this case. We consider that she did and that she was perfectly entitled to conclude that at the date of decision the appellant, whilst he may have intended to follow his course of study, was not able to do so at this time. Nor was he able to produce satisfactory evidence of regular attendance at or of satisfactory progress on is course. His was not a case of someone who could point to an attendance record broken only by relatively short periods of absence or a progress report showing only temporary disruption followed by satisfactory performance on resumption. The appellant had effectively ceased to attend his course after the first three months and, despite saying he was well enough to return for the autumn 2000 term, he had never recommenced it. In our view a decision-maker faced with the relevant requirements of the immigration rules has to consider ability in the broad sense. It is not enough that a person is academically able. If he is not physically and mentally able, then he cannot perform the tasks which are integral to being a student. That was the case here. 

11. Miss Onalo sought to persuade us that relevant post-decision facts cast a flood of light back on the situation as at the date of decision. In particular she referred us to letters from the appellant’s tutors testifying to his excellent attendance record since January 2002 and their confidence in his ability to follow the ACCA course successfully and on qualifying to follow a successful career as an accountant. They note that in June 2003 he retook the ACCA exams which he had failed in December 2002 and is now awaiting results. However, at the date of decision we do not think that it could be said, given he already had a relapse, that it was reasonably foreseeable he would overcome his medical problems sufficiently to function as a student. Furthermore, we do not consider that these post-decision developments point all in the one direction. The letter from the college registrar dated 24 June 2003 notes that he failed his examinations in December 2002. Certainly this was considered by his college to be  “due to the disruption of his revision caused by the stress of his immigration appeal, the hearing of which took place in November 2002, and by injuries following a criminal assault at the same time which led to his being hospitalised.” But at most this evidence shows that he has been able in more recent times to attend regularly. It does not show that his progress has been wholly satisfactory.  It may be that injuries caused by a criminal assault justified lack of progress to some extent, but on his own account he was still able to attend his course regularly thereafter. We do not consider that stress caused by an immigration appeal (based on a claim to have ability to make satisfactory progress with studies) provides a satisfactory explanation for lack of progress. In short, we do not think that post-decision evidence requires a different view to be taken of the appellant’s position under the rules as at the date of decision. 

12. Miss Onalo also sought to argue that since the appellant’s failure to attend and to make progress was found not to be his own fault but to have arisen for valid medical reasons we should draw an analogy with an employee who is absent from work due to genuine illness. Just as an employer is not entitled to dismiss an employee whose illness is genuine, so the Secretary of State was not entitled to refuse a student extension to a person whose illness was genuine. We have some difficulties with this analogy, even leaving aside that illness can sometimes cause frustration of a contract of employment. For one thing the relationship between the Home Office and an overseas student is not a contractual one nor one between employer and employee. For another, the Immigration Rules clearly lay down certain requirements that have to be fulfilled and clearly contemplate that only those who have demonstrated an ability to pursue their chosen course of study should be granted extensions as a student.   On the evidence before the adjudicator in this case, the appellant had fallen well short of demonstrating such ability. 

13. We note that the adjudicator made an extra-statutory recommendation in this case. If the appellant’s June 2003 exam results prove successful, that may vindicate the adjudicator’s reasons for making such a recommendation; but what weight, if any, the Secretary of State chooses to attach to this recommendation is entirely a matter for him.

14. For the above reasons the appeal is dismissed.

 DR H H STOREY  
VICE-PRESIDENT