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Can an asylum seeker be a student for immigration rule purposes ?

Written by Mark Symes, 26 January 2011

Can an asylum seeker be a student for immigration rule purposes ? This matters in practice, because if they can, it might be wrong for the Secretary of State to curtail their leave to remain as a student when refusing them asylum. Time there was when one might have imagined only answer to this question being negative, particularly because the old immigration rule on students, rule 57(iv), included the requirement that a student "intends to leave the United Kingdom at the end of his studies;": and how could a person asserting a fear of persecution in their country genuinely claim to hold such an intention ?

However, under the Points Based System, there is no such requirement to intend to leave the country at the termination of studies. On the face of the student rules under Tier 4 of the Points Based System , there are numerous requirements, often technical and hard to understand, but there is nothing there which appears inconsistent with having made an asylum claim.

Should the Secretary of State always act to curtail student leave, then, when making a decision in a case where a student claims asylum? Perhaps not, where the asylum seeking student has not fallen foul of the any of the general grounds for refusal. Now, if on a refusal of asylum the Secretary of State finds the case to lack credibility, then it might be said that the student had made false representations: this in itself is likely to be tested on appeal. But where at the date of asylum decision they apparently continued to meet the requirements of the immigration rule under which they were granted leave, why should they have their student leave curtailed when refused asylum?

There will be some cases, though, where there will be an arguable need to curtail leave to remain (as a matter of access to an independent judicial remedy) to give the Appellant an opportunity to exercise a right of appeal otherwise barred by Nationality Immigration and Asylum Act 2002 section 82 (which does not include, amongst permitted appealable immigration decisions, a refusal to vary leave to remain unless the decision's subject would otherwise be without leave): this would not be necessary vis-á-vis a student who at the date their asylum application is refused possessed leave to remain for more than a year, given section 83 of the Nationality Immigration and Asylum Act 2002.

Any views expressed are those of the author and do not necessarily represent the views of EIN