subject: Good attendance does not necessarily mean satisfactory progress in a student appeal [print this page] Good attendance does not necessarily mean satisfactory progress in a student appeal
VB (Student-attendance and progress not equated) Jamaica [2011] UKUT 119 (IAC) (28 March 2011)
This Upper Tribunal case was held on 2nd December 2010 at Field House. The case considered the issue of the good progress requirement under Tier 4 of the points-based system.
Facts of the case
The appellant is a Jamaican national who had applied for an extension of stay in the UK as a student. The Secretary of State for the Home Department (herein after referred to as the SSHD) refused her application on 13th January 2010. The appellant had stated that when she applied, on 26th February 2009, she was a student at the London Computer Academy where she was undertaking a computer course. The SSHD's refusal received in January stated that the college was not a publicly funded institution of further of higher education and that it did not maintain satisfactory records of enrolment or attendance. Nor were they satisfied that it was a bona fide private education institution or an independent fee paying school. The appellant enrolled at the South Chelsea College on 1st February 2010 claiming that the College was on the register. The course enrolled on was due to be completed in January 2012.
At her appeal, the Immigration Judge stated that she had provided no evidence of attendance on the course or evidence of any progress. She had provided no reasons for her change in course either and the appeal was subsequently dismissed.
The appellant successfully sought permission to appeal against the decision on the basis that the determination was inadequately reasoned and contained irrelevant references to the points-based system which has no relevance to this appeal as the application was made under the previous student rules'. The appellant argued that she had only recently commenced her course and therefore had not undertaken any exams or assessment to demonstrate progress on the course. Further, the change in direction raised by the Judge had not been raised at the hearing itself and therefore, the appellant had not had an opportunity to address that point.
A hearing took place on 14th October 2010 where the senior immigration judge directed that the parties adduce up to date information within 14 days.
It was accepted that the College was on the Register however, the respondents argued that the appellant could not show satisfactory evidence of regular attendance and satisfactory progress in accordance with sub paragraph (v) of paragraph 60 of HC 395.
The appellant argued that she had not taken any examinations and that they were not due to take place until spring 2011. Therefore, evidence on that basis could not be provided. However, the appellant relied upon a letter sent by her College dated 11th November 2010 which indicated that she had a high degree of attendance. The appellant argued that this was sufficient for the purposes of establishing satisfactory progress.
Conclusion
The Upper Tribunal did not agree with this argument and provided that attendance could not equate to progress. An adjournment was granted for the appellant to obtain further evidence of satisfactory progress. A document was subsequently provided by the Director of Studies at the College stating that the appellant's class teacher confirmed that the appellant was above average for her group based on her work in the class and on the tests taken in the class which showed she had obtained 64% and 58%. The respondents then subsequently accepted that this evidence amounted to good evidence of progress.
As a result, in light of the fact that the College was back on the Register and that evidence demonstrated satisfactory progress, the appellant had satisfied the requirements under the Immigration Rules and her appeal was allowed.
It is important to note from this case however, that satisfactory progress in a student appeal; cannot not necessarily be assumed from a good record of attendance. More evidence to prove progress would be required.
April 2011
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