Secretary of State for the Home Department v. Khalil

SECRETARY OF STATE FOR THE HOME DEPARTMENT v KHALIL

Immigration Appeal Tribunal

[1993] Imm Ar 481

Hearing Date: 22 March 1993

22 March 1993

Index Terms:

Appeal -- against refusal of application for variation of leave as a student -- adjudicator determined appeal two years after refusal -- allowed appeal on condition applicant could satisfy Secretary of State that her current studies complied with the rules -- whether adjudicator empowered to allow an appeal on a conditional basis. Immigration Act 1971 s 19: HC 251 para 109.

Held:

The respondent, a citizen of Nigeria had been refused variation of leave as a student, in November 1990. The Secretary of State had not been satisfied, inter alia, that the respondent had been regularly attending her course. She appealed. The adjudicator determined the appeal in March 1992. He heard evidence as to the respondent's then current studies. He allowed the appeal on condition that the respondent produced evidence to satisfy the Secretary of State that her then current studies met the requirements of the rules. The Secretary of State appealed. Held 1. The adjudicator was not empowered to allow an appeal on a conditional basis. 2. On the facts, the respondent had not shown that at the date of decision she was engaged on studies that complied with the rules.

Cases referred to in the Judgment:

R v Immigration Appeal Tribunal ex parte Bahman Gerami [1981] Imm AR 187.

Counsel:

D Wilmott for the applicant; S Joseph for the respondent PANEL: GW Farmer Esq (President), Mrs M Padfield JP, Mrs AJF Cross de Chavannes

Judgment One:

THE TRIBUNAL: The respondent, a citizen of Nigeria, arrived in the United Kingdom on 7 September 1984 and was granted leave to enter as a student for two months. She received extensions in that capacity to 30 September 1990. On 28 September 1990 the Home Office received a letter from the respondent. This read: "Re. Nigerian Passport No A513157 I am hereby handing in my passport of the above number, for your safe keeping, until I have my required document with which to obtain a visa." This was treated as an application for extension of stay as a student. On 21 November 1990 the Secretary of State refused to allow Miss Linda Khalil leave to remain. An appeal against that decision was allowed by an adjudicator (Mr MW Rapinet) on 16 March 1992. The Secretary of State appealed against the adjudicator's determination to the Tribunal. The grounds of the appeal were: "The adjudicator's determination is not in accordance with the law and the Immigration Rules and is against the weight of the evidence." The matter falls to be considered in the light of paragraph 109 of HC 251 (1990): "109. A student or prospective student who applies for variation of his leave for the purpose of study may, subject to paragraph 110, be granted an extension for an appropriate period if he produces evidence, which is verified on a check being made, that he is enrolled for a full-time course of daytime study which meets the requirements for admission as a student; that he has given and is giving regular attendance during the course or has in the past given regular attendance during any other course for which he has been enrolled; and that he is able to maintain and accommodate himself and any dependants without working and without recourse to public funds. An extension should be refused if there is reason to believe that the student does not intend to leave at the end of his studies or if the Home Office is not satisfied that the applicant is able, and intends, to follow a full-time course of study." The adjudicator concluded his determination: ". . . On condition that the appellant is able to produce satisfactory evidence from Kensington College of Business that she is enrolled on a course, that her attendance at that course has been regular, and that she has the aptitude to follow this course and ability to take the examinations, to the Home Secretary within 14 days of this determination, I am prepared to allow this appeal and direct that she be given leave to remain as a student until 30 of December 1992." Both representatives agreed that the adjudicator's approach was flawed. He was not empowered to allow the appeal on a conditional basis. Mr Wilmott asked us to review the facts ourselves. Mr Joseph requested that the appeal be remitted to be heard de novo by another adjudicator. We agreed that the approach of the adjudicator was incorrect. In our opinion this is a proper case to be reviewed by the Tribunal itself. We find that there was no evidence of regular attendance by the respondent at the course. We also bear in mind the case of Gerami [1981] Imm AR 187. We find a lack of academic success by the respondent over a period of time and that that is a relevant fact to be considered. For these reasons we allow the appeal. We express no view as to whether the respondent's letter, which was received by the Home Office on 28 September 1990, was an application for leave to remain as a student expressed in "unambiguous terms".

DISPOSITION:

Appeal allowed

SOLICITORS:

Solicitors for the respondent: Stewart & Co, London N15