Having just finished drafting grounds for judicial review in a case involving a refusal of a Tier 4 study application on the grounds that the applicant was not a “genuine student” I was interested to see the new case of R (Mushtaq) v Entry Clearance Officer of Islamabad, Pakistan (ECO – procedural fairness) IJR [2015] UKUT 224 (IAC).

The headnote is perhaps a bit of a distraction from the meat of the decision. It reads:

(i) The common law principles of procedural fairness apply to the decision making processes of Entry Clearance Officers (“ECOs”).

(ii) ECO interviews serve the basic twofold purpose of enabling applications to be probed and investigated and, simultaneously, giving the applicant a fair opportunity to respond to potentially adverse matters. The ensuing decison must accord with the principles of procedural fairness.

(iii) A breach of the “Case Worker Guidance” may render the decision of an ECO unlawful. As a general rule, a challenge advanced on this basis will succeed only where Wednesbury irrationality or a material procedural irregularity is established.

The full judgment is an interesting one that addresses some dubious reasons for refusal given by an ECO under the “genuine student” requirement.

Old timers like me will remember the standard reasons for refusal of student visa applications before the advent of the Points Based System. The classics were no intention to follow the course and no ability to follow the course. These highly subjective judgments were abolished when the Points Based System was introduced, but in July 2012 a new subjective judgment was reintroduced with paragraph 245ZV(k):

The Entry Clearance Officer must be satisfied that the applicant is a genuine student.

What is a “genuine” student? Surely just one who isn’t fake. If a person is attempting to obtain a student visa as a means of entering the UK merely to work, for example, or otherwise to breach the terms of a student visa and not genuinely to study then they are not “genuine”. Unfortunately, this is not the approach can that some ECOs are adopting. Instead, they are being even more subjective than before the Points Based System was introduced.

Guidance on meaning of genuine student

The Statement of Changes which introduced the provision, HC 514, suggested it would be used “sparingly” but gives no real indication of meaning, only intent:

In recognition of the fact that the Home Office has significantly strengthened the sponsorship obligations on colleges, refusals will, except in certain limited circumstances, only be made using paragraph 245ZV(k) of the immigration rules following an interview. This will give the applicant full opportunity to address any concerns raised by the application. These changes are intended to operate as a supplement to the current sponsorship controls, to be used sparingly, based on risk assessments, to tackle any remaining abuse in Tier 4. They will help protect education providers who have made an offer of a place in good faith, from applicants seeking to abuse the student visa route. Applicants from low-risk countries (listed in Appendix H to the Immigration Rules) who already benefit from a streamlined visa application process will be exempt from the genuine student test.

Guidance for Home Office caseworkers is available: Tier 4 interviews and genuine student rule (GSR): STY02. This has been amended since 2012 but it is the current version that is relevant.

No real guidance on the meaning of “genuine student” is given in STY02. A list of potentially relevant considerations is set out but in reality most of these are of at best tangentially related to whether a person might be considered a “genuine student”. They consist of matters such as amount of time spent in the UK and elsewhere, immigration law compliance, time elapsed since last study and reasons, “sufficient commitment” to the course, whether the course represents academic progression, credibility of the rationale for the proposed course, relevance of the course for future plans, personal and financial circumstances.

Case law on meaning of genuine student

The Mushtaq case illustrates the problems that can arise in the absence of focused guidance. The applicant scored all the necessary points under Tier 4 and so would have been issued a visa. However, he was interviewed and then refused on the grounds that he was not a “genuine student”. The interview was pretty short and the transcript is set out in the judgment. The reasons for refusal were… weak:

1. The answers at interview did not disclose any “real idea how your qualification in isolation will help you to achieve your aim”.
2. The applicant had allegedly failed to state a “specific personal reason” for his plans
3. The applicant had when asked about “facilities” at his proposed college talked about teaching not infrastructure
4. The applicant had “demonstrated no concrete knowledge of London”
5. The applicant had not given “an indication of the proposed financial costs they will incur for a long term programme of study”

Most of these reasons are on the face of it utterly absurd. My history degree was of no obvious assistance to a career in law, I could not have stated any specific personal reason for my academic or vocational studies other than that I liked history and wanted to practice law, I was, I admit, quite interested in the physical facilities at my first choice college, I had no knowledge of the city of Oxford at all and I certainly hadn’t added up how much it was all going to cost me and my parents – thankfully, otherwise I might have thought twice. Was I therefore a fake?

On top of this bizarre approach to assessing who is a genuine student, the applicant in Mushtaq simply had not been asked questions about these issues, which was said by the tribunal to be “manifestly unfair”. The tribunal also ultimately considered the reasons to be unreasonable in the legal Wednesbury sense: no rational ECO would have relied on such reasons.

Additionally, in failing to give the applicant an opportunity to answer the questions the interviewer had breached the ECO guidance, which requires that interviewees be given an opportunity to respond to issues of concern.

The judgment ends with the suggestion that ECO interviewers employ care and planning, void ambiguous words and phrases and conduct themselves fairly by inviting the subject tot clarify or expand an answer or probe a response.

Sadly, this suggestion is utterly unrealistic and would require nothing less than a revolution in the conduct of visa officials. Interviews by ECOs are typically seen as an opportunity to gather reasons for refusal, no more, and it has always been thus.

Nonetheless, Mushtaq offers hope to students who are refused on “genuine student” grounds, who can afford to bring an application for judicial review and who are set on study in the United Kingdom. For many, though, they will take the easier course and simply elect to study in a different country.