UK student visa and conditions of stay

SAB and others (students-serious breach of conditions – Article 8) 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 general visa. However, their extension applications were refused on the basis that they had remained in the UK in breach of their immigration conditions namely, having worked in excess of the hours permitted under their student visas.

One of the appellants was a research student making good progress on his doctorate. However, his leave was curtailed before his examinations on the basis of having worked over the hours permitted under the terms of his visa. An appeal against the decision was lodged and dismissed both under the Immigration Rules and under Article 8. Whilst the appellant did have article 8 arguments in favour of his appeal, the immigration judge considered the decision to be proportionate stating that, the appellant could not expect to benefit entirely from article 8 whilst remaining in the UK in breach of his conditions of leave i.e. by working excessive hours for a prolonged period of time. The judge concluded that it was a proportionate response to someone who had totally disregarded his obligations under the Immigration rules. The appellant applied for permission to appeal and this was granted.

The Tribunal noted that working restrictions on student are difficult to police and therefore, those who breach their conditions whilst other students who may wish to work longer hours but don’t, should not be entitled to rely on human rights grounds for further leave to remain. This was deemed to be unfair to students who adhered to their conditions of stay.

The immigration judge considered the recent cases of Pankina v SSHD [2010] EWCA Civ 719 and CDS (PBS: “available”: article 8) Brazil [2010] UKUT 00305 (IAC.  The judge commented that, these cases are examples of how, those who have committed minor offences or breaches under the immigration rules may successfully rely on human rights to continue to exercise their leave/extend their leave of remain However, these cases 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 decision 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 standing liberty to disregard the immigration rules and that it was unlikely that a person coming to the UK for temporary purposes could show an article 8 right. Instead, 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 yet completed, may have built up an article 8 private life that deserves consideration. Public interest may be considered ‘reduced’ where sufficient financial resources are available.  The appellants in those cases had succeeded as their breaches were technical (i.e. lack of funds for a short period due to unforeseen circumstances).

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

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