Zhou v Secretary of State for the Home Department

Factual and Procedural Background

This matter arises from an appeal against the refusal by Judge Goldring on 17 May 2002 to grant the Appellant permission to claim judicial review concerning the Secretary of State's decision to remove the Appellant from the United Kingdom before the expiry of his granted leave to remain. The Appellant, a national of another country, was admitted to the UK to study English and subsequently enrolled at various educational institutions while engaging in part-time employment. The Secretary of State issued removal directions based on the conclusion that the Appellant had breached immigration conditions by working without authorization, a decision originally communicated in December 2001 and confirmed thereafter. The Appellant challenged this decision primarily on the basis that it was founded on a misinterpretation of the Immigration Rules and that the Secretary of State failed to properly consider relevant evidence in exercising discretion. The appeal was permitted by Sedley LJ on 16 August 2002, who found the grounds arguable and important. The court proceeded to hear the judicial review on the merits after granting permission.

Legal Issues Presented

1. Whether the Appellant’s part-time employment was authorized under the Immigration Directorates' Instructions (IDI) and Immigration Rules, specifically whether the Appellant retained "student" status for the purposes of permitted employment under Chapter 4 of the IDI.
2. Whether the Secretary of State lawfully exercised discretion in deciding to remove the Appellant without considering relevant evidence concerning the treatment of students at the educational institution attended by the Appellant.

Arguments of the Parties

Appellant's Arguments

• The decision to remove him was unlawful as it was based on a misreading of the Immigration Rules, particularly regarding the definition of "student" and authorization of part-time work.
• The Secretary of State’s discretion was exercised irrationally by failing to consider relevant evidence about the educational institution’s treatment of students, which impacted the Appellant’s attendance and status.
• The Appellant contended that he retained student status despite poor attendance and thus was entitled to engage in part-time employment under the standing authorisation in Chapter 4 of the IDI.

Respondent's Arguments

• The Secretary of State maintained that the Appellant was not a student for the purpose of employment authorisation because he failed to meet attendance requirements as set out in paragraph 57 of HC 395.
• The Secretary of State argued that the exercise of discretion did not require investigation into the educational institution’s conduct concerning students’ fee payments or transfers.
• It was asserted that the removal decision was justified because the Appellant had been working in breach of his landing conditions, independently verified by the Secretary of State.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework, including the Immigration Act 1971, the Immigration and Asylum Act 1999, the Immigration Rules (HC 395), and the Immigration Directorates' Instructions (IDI). The central issue was the interpretation of "student" in relation to the authorization of part-time employment under Chapter 4 of the IDI, which provides a standing authorisation for students to work part-time without seeking permission.

The court considered three possible meanings of "student": (1) a strict interpretation aligning with paragraph 57 of HC 395 requiring full-time attendance of at least 15 hours per week; (2) a flexible factual test based on the individual's actual engagement in study; and (3) a meaning based on the status conferred by leave to enter "as a student" at the time of entry, regardless of attendance fluctuations.

The court found the first two interpretations unsatisfactory due to practical difficulties and uncertainty, including situations where students temporarily reduce attendance or transfer institutions. It concluded that the third interpretation was the most sensible and practical, consistent with the language of the relevant provisions and the natural meaning of the term. Under this interpretation, the Appellant retained student status for the period of his leave, and thus his part-time employment was authorized.

The court further reasoned that if the Secretary of State wished to address poor attendance or lack of study, the appropriate mechanism was to curtail the leave to enter under section 3(3)(a) of the 1971 Act, which would allow for appeal rights, rather than to treat such students as having lost student status and thus unlawfully employed.

Regarding the second ground, the court found no merit in the claim that the Secretary of State acted irrationally by failing to investigate the educational institution’s conduct towards students, as this was not material to the removal decision based on breach of immigration conditions.

Holding and Implications

The court’s final decision was to ALLOW THE APPEAL.

The Secretary of State’s decision of 11 December 2001 seeking to remove the Appellant from the United Kingdom was quashed. The direct effect of this ruling is that the Appellant was lawfully entitled to remain in the UK and to engage in part-time employment under the Immigration Rules and IDI during the period of his leave to enter as a student. No new precedent was established beyond the interpretation of "student" status in this context. Costs were awarded against the Respondent, including costs of the prior proceedings before Keith J.