In this article we examine the case of R (on the application of Mushtaq) v Entry Clearance Officer of Islamabad IJR [2015] UKUT 224 (IAC).
Promulgated in March 2015 but only reported on 11 May 2015, the case saw the Upper Tribunal President, the Honourable Mr Justice McCloskey, examine paragraph 245ZV Immigration Rules (HC 395), known to Tier 4 applicants and sponsors as ‘the Genuine Student Rule’.
The student, Adnan Mushtaq, a 26 year old national of Pakistan keen on studying in the UK, submitted an application for Entry Clearance under Tier 4 (General) of the points based system and was duly called for interview.
When faced with a barrage of questions from the Entry Clearance Officer (‘ECO’), covering everything from his reasons for choosing the UK and what he knew of living in London, to his plans for returning to Pakistan and how the qualification would help him in the future, to how many establishments he had applied to and the facilities on offer at his chosen establishment, Mr Mushtaq did his best to answer.
Despite his best endeavors, and sadly all too predictably, his application was refused on 11 April 2014 on the basis that the ECO was not satisfied that he was a genuine student.
However, Mr Mushtaq decided to challenge this finding and the case came before Mr Justice McCloskey. He found that:
- the ECO’s bare, unreasoned statement that the applicant had not disclosed any “real idea how your qualifications in isolation will help you to achieve your aim” to be unsustainable and irrational in the Wednesbury sense;
- the ECO’s conclusion that the applicant had failed to articulate a “specific personal reason” for his plans to be irrational in a Wednesbury sense or, alternatively, to have breached the principles of procedural fairness since the Applicant was not informed that it was incumbent on him to demonstrate a “specific personal reason for his study plans” and was not given a reasonable opportunity to do so;
- that the ECO had, when asking about the facilities available at the sponsor, failed to make it clear to the Applicant that he was enquiring about other facilities and not enquiring about the sponsor’s educational and teaching services and attributes and had not therefore given the Applicant a fair opportunity to deal with this discrete issue;
- the ECO’s conclusion that the applicant had “demonstrated no concrete knowledge of London” to be procedurally unfair because the Applicant had not been afforded the opportunity to disclose whether he possessed any general knowledge about London and had only been asked about his residential and accommodation plans;
- the ECO’s expectation that the Applicant would have an “indication of the proposed financial costs they will incur for a longer term study programme” to be procedurally unfair because the Applicant had not been asked any questions to this effect and it was uncontested that the Applicant had satisfied the maintenance requirements fully. The same finding of procedural unfairness was also applied to the ECO’s conclusion that the payments of £11,000 for maintenance and course fees were not commensurate with the family’s evident [i.e weak] financial status. This issue had not been raised directly or indirectly during the Applicant’s interview.
Mr Justice McCloskey concluded that:
‘The choice of questions and words in ECO interviews requires care and planning. Ambiguous words and phrases are to be avoided. Furthermore, fairness will often require that the interviewer invite the subject to clarify or expand an answer or probe a response. These simple mechanisms will also illuminate the court’s assessment of whether any ensuring adverse decision was preordained. The nationals of impoverished and deprived countries who have invested large sums of money and whose admission to the United Kingdom is lawful if they satisfy the requirements of the relevant legal rules are deserving of no less.’
This case is potentially very significant for both Tier 4 applicants and also Tier 4 sponsors that find themselves nearing or exceeding the 10% refusal rate threshold for the purposes of the Basic Compliance Assessment.
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We advise Tier 4 sponsors on a range of issues including measures they can take to reduce their refusal rate and defend themselves against action taken by UKVI. If you require legal advice please contact us.
