UK student visa and circumstances of stay


SAB and others (students-serious breach of situations – Write-up eight) Ghana [2010] UKUT 441 (IAC) (07 December 2010)

This case concerned appellants originating from Ghana in the UK on student visas. The appellants applied to extend their leave by applying for a Tier 1 common visa. Nonetheless, their extension applications had been refused on the basis that they had remained in the UK in breach of their immigration situations namely, having worked in excess of the hours permitted under their student visas.

1 of the appellants was a investigation student producing great progress on his doctorate. Even so, his leave was curtailed prior to his examinations on the basis of getting worked more than the hours permitted below the terms of his visa. An appeal against the selection was lodged and dismissed both below the Immigration Guidelines and beneath Post 8. Whilst the appellant did have article 8 arguments in favour of his appeal, the immigration judge deemed the choice to be proportionate stating that, the appellant could not expect to benefit completely from write-up eight while remaining in the UK in breach of his situations of leave i.e. by functioning excessive hours for a prolonged period of time. The judge concluded that it was a proportionate response to an individual who had totally disregarded his obligations under the Immigration guidelines. The appellant applied for permission to appeal and this was granted.

The Tribunal noted that functioning restrictions on student are tough to police and for that reason, these who breach their situations whilst other students who may wish to perform longer hours but do not, should not be entitled to rely on human rights grounds for additional leave to stay. This was deemed to be unfair to students who adhered to their situations of remain.

The immigration judge considered the recent instances of Pankina v SSHD [2010] EWCA Civ 719 and CDS (PBS: “offered”: post eight) Brazil [2010] UKUT 00305 (IAC.  The judge commented that, these circumstances are examples of how, these who have committed minor offences or breaches under the immigration guidelines could successfully rely on human rights to continue to workout their leave/extend their leave of stay Nonetheless, these instances do not provide for serious breaches of the immigration rules to be overlooked.

In this case, the immigration judge decided that there was no error of law in the initial choice to dismiss the appellant’s appeal. The appellant had entered into a contract with an employer for 20 hour per week. However, in reality, the appellant worked in excess of 20 hours per week. The judge stated that the case of CDS did not give the courts free of charge standing liberty to disregard the immigration rules and that it was unlikely that a individual coming to the UK for temporary purposes could show an write-up 8 right. As an alternative, the CDS and Pankina case highlight that, a person who has come to the UK to pursue a course of study which he or she has not but completed, could have constructed up an post eight private life that deserves consideration. Public interest might be considered ‘reduced’ exactly where adequate financial resources are offered.  The appellants in those circumstances had succeeded as their breaches had been technical (i.e. lack of funds for a brief period due to unforeseen circumstances).

This case could be differentiated as it did not involve minor technical infringements of the immigration guidelines. The immigration judge concluded that the successful maintenance of immigration control is a strong public interest which must be considered in the balancing exercise by the Tribunal.