YS v THE ENTRY CLEARANCE OFFICER, NEW DELHI

The Appellant, a national of India, appealed to the Tribunal against the decision of the Respondent Entry Clearance Officer on 8 October 2007 refusing him entry clearance to the United Kingdom as a student. The Immigration Judge dismissed the appeal. The Appellant sought and obtained an order for reconsideration. Thus the matter comes before us.

The Appellant is, of course outside the United Kingdom. He has no representative in the United Kingdom. There was no appearance by him or on his behalf before us. We decided that this was an appropriate case to decide in his absence.

The Appellant’s proposal was to undertake an MBA, receiving his teaching at CESOS London College, with a view to a degree awarded by IMPAC University in the United States.

The Entry Clearance Officer refused the application on a number of grounds. He was not satisfied that the Appellant intended to follow the chosen course or that his plan to study was realistic or in line with his previous pattern of study. He was not satisfied that the Appellant was seeking a degree awarded by a UK degree awarding body. He further was not satisfied that the Appellant had available to him sufficient funds to meet the cost of his studies and accommodation.

The Immigration Judge concluded that he was satisfied on matters relating to the Appellant’s intention. He calculated the funds available to the Appellant and concluded that at £458 they were not sufficient. He also said that “the fact the Appellant is doing a degree course which is not awarded by a UK degree awarding body must mean that the Appellant fails to meet one of the other requirements of para 57”. He thus dismissed the appeal.

The application for reconsideration contains detailed calculations relating to the funds said to be available to the Appellant. It makes no mention of the other ground upon which the Immigration Judge dismissed the appeal. The order for reconsideration, rather surprisingly, refers only to that other ground and does not mention funding. It looks as though the Senior Immigration Judge was so taken with the point that he had thought of himself that the forgot to deal with the point raised by the Appellant.

We will deal first with the question of whether the Appellant’s proposal could meet the requirements of the rules in any event. The relevant rules are those in para 57 of the Statement of Changes in Immigration Rules, HC395, as follows:

“The requirements to be met by a person seeking leave to enter the United Kingdom as a student are that he:

(i)

has been accepted for a course of study, or a period of research, which is to be provided by or undertaken at an organisation which is included on the register of Education and Training Providers, and is at either:

(a)

a publicly funded institution of further or higher education which maintains satisfactory records of enrolment and attendance of students and supplies these to the Border and Immigration agency when requested; or

(b)

a bona fide private education institution; or

(c)

an independent fee paying school outside the maintained sector which maintains satisfactory records of enrolment and attendance of students and supplies these to the Border and Immigration Agency when requested; and

(ii)

is able and intends to follow either:

(a)

a recognised full-time degree course or post graduate studies at a publicly funded institution of further or higher education; or

(b)

a period of study and or research in excess of six months at a publicly funded institution or higher education where this forms part of an overseas degree course, or

(c)

a weekday full-time course involving attendance at a single institution for a minimum of 15 hours’ organised daytime study per week of a single subject or directly related subjects; or

(d)

a full-time course of study at an independent fee paying school; and…

(iv)

if he has been accepted to study externally for a degree at a private institution, he is also registered as an external student with the UK degree awarding body ….”

The Appellant’s proposal was to attend a private college for a course which led to a degree awarded by a degree awarding body which is not a UK degree awarding body. The Immigration Judge appears to have taken the view that under those circumstances the Appellant could not meet the requirements of subparagraph (iv), because he is not registered as an external student with any UK degree awarding body.

Mr Corden said that the terms of subparagraph (iv) were very unclear. He asked us to read it as though the word “the” were replaced with “a”. If the subparagraph were amended in that way, it would be clear that any student seeking to prepare himself for a degree other than one awarded by the institution at which he was studying (for that is what an external degree is) would need to be registered for a degree with a UK degree awarding body.

Although that alteration would bring clarity to the subparagraph, it is not easy to see that the clear meaning that would ensue is the meaning intended. There is no doubt that the reference to a “recognised full time degree course” in subparagraph (ii)(a) means a degree awarded by a recognised UK institution: YS and SJ [2006] UKAIT 00094. But the Appellant, like many thousands of overseas students, does not propose to study at a publicly funded institution of further or higher education. He proposes to study at a private college. If the proposed modification and reading of subparagraph (iv) is correct, it would have the effect that a course of studies at such a college would be permissible if undertaken by reference to a prospect of a UK degree, and equally permissible if undertaken without reference to any prospect of a degree, but impermissible if undertaken with reference to a degree awarded by a body outside the United Kingdom. We can see no conceivable policy for a rule in that form, and so would hesitate to adopt Mr Corden’s suggestion.

If, however, the rule is read as it stands, the reference has to be to the UK degree awarding body that is part of the applicant’s proposal. If that is right then “degree” in the first phrase of the subparagraph means a UK degree, which is perhaps what one would expect in any event; and the whole subparagraph only applies to a person who intends to study for a UK degree at an institution other than that which awards the degree. The requirement itself then becomes entirely intelligible: the student must show not merely he has been accepted for the course, but also that he is registered for the degree. Those concepts, normally combined in the case of a course undertaken at a degree awarding institution, are separate in the case of external studies. The emphasis of subparagraph (iv) then shifts from an additional requirement of registration with a UK awarding body to emphasis on a requirement of registration with any UK degree awarding body involved in the application.

That interpretation of the actual words of the rule would be entirely coherent. We recognise, that so interpreted, the rule allows study at a private institution in this country for a degree awarded by an overseas institution. That is not particularly surprising, even in the light of the decision of the Tribunal in YS and SJ, because that case was about a different requirement, that a course be at “degree level.” It is not surprising, because students who otherwise meet the requirements of the rules are allowed to come to this country in order to undertake courses that do not lead to a UK degree and it would be odd if it was more difficult for the same student to undertake the same course, if it led to a degree from an institution outside the United Kingdom.

We therefore indicated at the hearing that we would hold that paragraph 57(iv) did not apply to the Appellant as he was not undertaking studies leading to a degree awarded externally by a UK degree awarding body.

In preparing this written determination, however, we have become aware of the terms of a paragraph of the Immigration Rules to which Mr Corden did not refer us. There is in para 6, a definition reading as follows: -

“an external student” is a student studying for a degree from a UK degree awarding body without any requirement to attend the UK degree awarding body’s premises or a UK Listed Body’s premises for lectures and tutorials.”

So far as we can see, the phrase defined, “an external student”, occurs only in para 57(iv). In any event there can be little doubt that the definition is intended to have application to that subparagraph. If the definition is inserted in place of the phrase defined, para 57(iv) imposes the requirement that:

“if he has been accepted to study externally for a degree at a private institution, he is also registered as an external student with the UK degree awarding body…”

This makes it clear that a person who intends to study at a private education institution for a degree awarded by another body can meet the requirements of the rules only if registered as a student with a UK degree awarding body. We do not know the purpose of that requirement, which has the consequences set out in para 10 above. We are not, however, able to read para 57(iv) in any other way given the definition in paragraph 6. It follows that the Immigration Judge was correct in his briefly expressed conclusion on the nature of the course.

We turn now to funds. As we have said, the grounds for reconsideration make detailed submissions of the amounts of funds. The Immigration Judge excluded two proposed sources of funds, for reasons given as follows:

“12.

I have noted copies of receipts of deposits made in 2005 to three multi benefits deposits scheme accounts held at the Punjab Bank. However I have no evidence of the date of maturity of these deposits and whether the funds have not been withdrawn and are still available. I am therefore not satisfied that the funds as shown in the receipts are available for the Appellant’s studies.

13.

Similarly I have noted that the term deposit account held at Oriental Bank of Commerce, but I noted that the monies held on deposit are not due for maturity until 23 September 2009. I am therefore not prepared to accept that the funds held in these accounts are available for the Appellant at the date of the decision and would be available for his studies.”

The grounds for reconsideration assert that the person in question is the Appellant’s uncle and would be prepared to support him. They also assert that the money in the other two accounts could be drawn out at short notice. The problem is, however, that merely showing that a family has funds available to it does not of itself show that all the family’s funds are available for expenditure on one family member’s education. Further, when funds are invested in term deposits, although it may well be right that the capital can be withdrawn, that of itself does not show that it will be withdrawn. In any event, as the Immigration Judge noted, had had no evidence relating to the ownership of some of the money, or to the proposals for the term deposit. In the circumstances it appears to us that he was amply entitled to make the findings that he did. He made no error of law in concluding that the funds shown to be genuinely available to the Appellant were not sufficient for his adequate maintenance and accommodation during his studies.

We considered whether to invite further argument on this appeal in the light of the conclusion drawn from para 6 of the Rules, which was not cited before us. It is clear, however, that no injustice is caused to either party by our issuing this determination without more ado. The appellant’s appeal was, as we have said, correctly dismissed for another reason altogether; and the decision we reach on para 57(iv) is that sought in any event by the Respondent and is on an issue on which the appellant, served with the Order for Reconsideration, made no submissions.

The Immigration Judge made no material error of law and we order that his determination dismissing this appeal shall stand.