OG v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

The appellant is a national of Nigeria. He appealed to an Immigration Judge against the Secretary of State’s decision of 21 February 2006, refusing to vary leave to remain in the United Kingdom. The appellant was originally granted leave to study in the United Kingdom on 2 October 2003 and this was extended on 26 July 2004 and again on 5 July 2005. On 26 January 2006, he sought further leave to remain as a student in order to study for a Master’s in Business Administration with West London College. That application was refused on 21 February 2006. The Secretary of State considered that the appellant 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 and therefore his application for leave to remain was refused under paragraph 62 of HC 395 with reference to paragraph 60(ii) and paragraph 57(v). The Immigration Judge dismissed the appellant’s appeal. He sought reconsideration of this decision, arguing that there was an issue as to what was meant by “term time” since he had been writing up a thesis during the period in question.

Reconsideration was ordered, and there was a hearing on 6 February 2007 at which a Senior Immigration Judge found there to be a material error of law in the Immigration Judge’s determination. That decision identified three potential issues to be determined, firstly how “vacation” should be construed, particularly with reference to cases involving a thesis and student cases generally, whether or not the appellant acted in breach of his conditions of leave and what the consequences were in the light of the actual decision made by the respondent.

At a previous hearing, on 17 August 2007, a question arose as to the wording of the letter of 28 July 2004 which set out the conditions under which the appellant was permitted to work. Neither side had that document and therefore the hearing was adjourned so it could be produced by the Home Office.

The hearing before me took place on 13 May 2008. Ms F Saunders appeared on behalf of the Secretary of State. There was no appearance by or on behalf of the appellant. Subsequent to the hearing, I received a letter from the appellant attaching a letter from his solicitors who expressed concern as to whether they still had his instructions. The appellant said that he had had to stop correspondence with them because of the size of their fees. He said that he would not be present at the hearing on 13 May as it was not possible for him to make arrangements to do so. He did not seek an adjournment. In his absence, and the absence of his representatives, and noting that notice of hearing had been sent to both by first class post on 3 April 2008, I concluded that it was proper to go ahead and hear the appeal.

Ms Saunders had put in a skeleton argument and also attached IDIs. In essence, she argued 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. A copy of the letter of 28 July 2004 had been found and faxed through to the Tribunal. This made it clear that the appellant could work full-time during vacation periods but said that he must not work more than twenty hours per week during term time. Whether a person was studying by attending classes during a course or writing a thesis or dissertation, the obligation remained the same. The refusal in this case was made with reference to paragraph 57(v) to which the letter of 28 July 2004 referred.

As regards the argument that the appellant’s case came under paragraph 69G, the appellant had not applied for leave to enter to write up a thesis, but in any event this involved the need to meet the requirements of, among other provisions, paragraph 57(v), in any event, and, therefore, even if it had been applicable, it would have made no difference.

I think that there is force in Ms Saunders’ submissions. I note from the determination of the Senior Immigration Judge at the hearing on 6 February 2007 that it seemed to be common ground that, during the period of 5 July 2005 to 31 January 2006, the appellant was working in excess of the permitted twenty hours. The essence of the argument and his challenge to the Immigration Judge’s determination is that the period in question was not “term time” and, therefore, he was not restricted. Reference was made in the grounds to a letter from Ms Linda Nicolaides concerning the issue of term time. It is said in that letter that, due to the fact that the appellant only had to do his thesis, there was no term time schedule but he had to brief and give his supervisor reports of his progress on the work and was given till the 31 January 2006 to resubmit his thesis. That does not to my mind quite equate with what it is said to say in the grounds: that it is clearly stated that the period of 8 July 2005 to 30 January 2006 was not term time for the purposes of the appellant’s academic programme. Rather, as it states, there was no term time schedule.

It is, in my view, important to consider the purpose behind the Immigration Rules in this regard. 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. When a person comes to the United Kingdom to study, it is a necessary concomitant of that permission that the essential purpose of their stay is to study. It is clear, and the wording of the letter of 28 July 2004 appears to be in standard form, 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. That is for the obvious reason that it is expected that he will spend significant amounts of his time in study.

I do not think that it can properly be said that a person in the appellant’s position who is writing up a thesis (assuming they have leave to do so, which in any event does not appear to be the position in this case) is relieved of the obligation set out in the letter of 28 July 2004. It remains the case that they are a student at an academic institution which has term times and vacation periods. The expectation is that such a person, whether they are attending lectures and tutorials, supervisions or writing up a thesis, will be studying for a significant amount of time during the period for which they have been given permission to stay. The University of Greenwich, which the appellant was attending at that time, clearly has term periods and vacation periods, like any other university. It is clear that the appellant did work in excess of the permitted period for a significant amount of time during the period in question. I consider that it makes 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. Accordingly, I conclude that the Secretary of State was right to assess the appellant as having breached the requirements of paragraph 57(v) of HC 395, and the decision dismissing his appeal is maintained.