SW and Others (Paragraph 60 (v): meaning of  “including”) Jamaica [2006] UKAIT 00054

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Heard at: Field House					Date of Hearing:  20 June 2006 

Before:

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Miss E Arfon Jones, Deputy President of the Asylum and Immigration Tribunal

Between

Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT 

Respondent

Representation:

For the first Appellant:	Mr Goldborough, O’Keefe Solicitors
For the Respondent: 	Miss M Tanner, Home Office Presenting Officer

In order to meet the requirements of paragraph 60(v), an applicant must have taken and passed any relevant examinations.  Other evidence of satisfactory progress may add to but cannot substitute for success in examinations.

DETERMINATION AND REASONS

1.	The appellants are citizens of Jamaica.  The second and third appellants are the children of the first appellant.  The first appellant appeals against the decision of the respondent on 8 November 2005 refusing to vary her leave in order to allow her to remain as a student.  The second and third appellants appeal decisions refusing to vary their leave in order to allow them to remain as dependant children of a student.

2.	The reasons for the decision in the first appellant’s case were as follows:

“You have applied for leave to remain as a student but your application has been refused. 
This is because since you began studying in the United Kingdom in April 2002 you have not achieved any qualifications from your courses and the Secretary of State is not satisfied that you can show evidence of satisfactory progress in your courses of study.
Furthermore you have been working for more than the 20 hours per week which is permissible as a student and you have therefore failed to comply with conditions attached to your grant of leave to remain.
In view of this employment and the other evidence and information about funds which you have submitted the Secretary of State is not satisfied that you are able to meet the costs of your course and accommodation and to the maintenance of yourself and your dependants without taking employment, engaging in business or having recourse to public funds.
Moreover in view of the fact that you have not achieved qualifications and have been working for more than the permissible number of hours, and you have relatives living in the United Kingdom, the Secretary of Sate is not satisfied that you intend to leave the United Kingdom at the end of your studies.”

3.	The appellants’ appeals were heard by an immigration judge Mr G J Hart, on 23 December 2005.  He allowed the appeals.  His conclusions as to the first appellant’s employment have not been subsequently challenged.  His conclusions as to her progress in her studies to date were as follows:

“It is abundantly clear that the appellant achieved little or nothing during her claim to studies with the Borough College and South Lambeth College in London.  Indeed the evidence largely points to the fact that the appellant was still living in Gloucester and working there regularly.  She had made no successful attempt to find a relevant care home placement to support her studies at Borough, although clearly she ultimately found a comparable position in February 2004 at Uplands Homes.  This meant that the appellant was travelling to and from Gloucester, if she were regularly attending her course.  However what influences me is that the respondent had to give consideration to applications by the appellant to extend her stay in February and July 2003 and September 2004.  These all provided the respondent with the opportunity to consider closely the appellants past academic achievements and attendance.  They were clearly lacking in success at that time.  The inference therefore is that the respondent was satisfied that the appellant had provided evidence of satisfactory progress in the course of study, the passing of any relevant examinations and thus her intention and ability to undertake the several courses, including that for which she now seeks leave to extend her stay.  It strikes me that after a dismal and doubtful past he appellant has now shown some dedication to her studies.  Those studies have not been particularly successful but at least she attained two out of three modules which she took in June 2005.  She is now in the process of re-sitting the third module.  It will be an uphill task for her to achieve the completion of the remaining modules in the next six months.  It is not without some anxious thought that I find that on the balance of probabilities the appellant has demonstrated that she has at last made some progress in her studies.  This arises even because earlier she had made no progress.  She has taken and passed some but not all relevant examinations.  I find that she just meets that requirement. “

4.	It is that conclusion which is the subject of the Secretary of State’s application for reconsideration.  The first ground is that the immigration judge applied the wrong test: he decided that the appellant had made  “some” progress in her studies whereas he should have been concerned with whether the appellant had made “satisfactory” progress in her studies.  The second ground is that the immigration rules require success in examinations and that accordingly the immigration judge was not entitled to allow the appeal given his finding that the appellant had not passed all her examinations.

5.	The relevant immigration rules are those in paragraph 60 of HC 395: 

“60.  The requirements for 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; ….”

6.	Mr. Goldborough’s submission on the appellant’s behalf was that “including”  and “any” showed that the taking and passing any relevant examinations was simply an example of the way in which satisfactory progress could be demonstrated.  Ms Tanner’s submission was that the use of those words showed that whatever  other evidence might be available, the applicant was required to show that she had taken and passed any relevant examinations.  

7.	The phraseology of the rule is slightly peculiar.  Whatever may be its precise effect in the course of an appeal, on its face it does not require the appellant to establish that she has made satisfactory progress by producing evidence: it requires her to produce evidence of certain matters.  The evidence is required to be of “satisfactory progress … including the taking and passing of any relevant examinations”.  It does not appear to us that it is possible to read that phrase as meaning that evidence of passing any relevant examinations is an optional extra.  The clear meaning of the words is that whatever other evidence is also provided, the applicant is required to show that she has both taken and passed any “relevant examinations”.  

8.	Of course it is right, as Mr Goldborough pointed out that if there are no “relevant examinations”, an applicant will not be able to show that she has taken and passed them: that, in our view, is the value of the word “any”.  The rule is constructed in such a way that satisfactory progress may be shown without examinations if there have been no examinations; but, if there have been examinations, satisfactory progress has to be shown by evidence including evidence that the examinations have been taken and passed. 

9.	It is also true that on its face this rule makes no allowance for a person who may, within the regulations of his or her course, have an opportunity to re-sit an examination or paper which has not been passed at the first attempt.  That consideration, however, does not cause us to modify our interpretation of this paragraph of the rules, because paragraphs 69A - 69 F make specific provision for leave to enter or remain in order to re-sit an examination.

10.	We remind ourselves also that leave to enter or remain as student has always depended on the course being one which the Secretary of State was satisfied was of a proper standard and at an institution which maintained proper records of attendance and progress, and such leave is now conditional on the course being at an institution appearing on the Secretary of State’s list of approved institutions.  We have little doubt that the institution’s attitude to examinations is one of the factors which would be taken into account in deciding whether an institution was to be approved or not.  In this context it is not at all surprising that paragraph 60 should require that any relevant examinations have been taken and passed.  

11.	For the foregoing reasons we consider that the immigration judge materially erred in law.  

12.	As the first appellant has not passed “relevant examinations” she could not comply with paragraph 60(v).  We substitute a determination dismissing the first appellant’s appeal on the grounds that she did not and does not meet the requirements of paragraph 60(v).  We substitute determinations dismissing the appeals of the second and third appellants on the ground that the first appellant will have no leave as a student.  

C M G OCKELTON
DEPUTY PRESIDENT
          Date: