As we are aware that overseas student who intend to study in the UK must apply for entry clearance under point based system of the Immigration Rules. The most relevant category available to them is commonly known as Tier 4 (General) student migrant or Tier 4 (Child) student migrant. To gain entry clearance or a visa as Tier 4 (General) Student, an applicant must score 30 points for Certificate of Approval of Studies (CAS Letter) under Appendix A and 10 points for maintenance under Appendix C of Immigration Rules. If the Applicant meets the requirements, an entry clearance in granted. If the applicant does not meet the requirements, the application is refused.
Apart from above, an applicant also need to prove that his intention to follow a course of study in the UK is genuine which is known as “Genuineness test”. If an entry clearance officer believes that an applicant is not a genuine student, an application can still be refused under paragraph 245ZV(k) of the Immigration Rules even though the applicant meets the requirements mentioned above. Paragraph 245ZV(k) states that, “To qualify for entry clearance as a student the Entry Clearance Officer (ECO) must be satisfied that the applicant is a genuine student”.
If an application is refused, an applicant is given a right to submit a request for Administrative Review under paragraph 34VA of the Immigration Rules with reference to paragraph AR2.7 and AR2.11 of Appendix AR– Administrative Review because the decision not to request specified documents, applying immigration rules incorrectly or failure to apply relevant published policy and guidance in relation to the application was incorrect resulting in being a case working error on part of the decision maker.
The published guidance available in this context was updated on 13th January 2015, however the said guidance was withdrawn by the UK Visas and Immigration recently on 3rd January 2018. The said guidance could be seen at this link:
Paragraph 2.4 of the said guidance states that, “In assessing whether the applicant is a genuine student, ECOs must take into account all the evidence available from the application and from the interview. If, having reviewed the application, they have one or more reasonable doubts that the applicant is a genuine student and an interview has been conducted, ECOs should take into account all the following factors insofar as they are relevant, and any other relevant matters before deciding whether they consider, based on their expertise in assessing entry clearance applications and the evidence available to them (including any omissions in such evidence), that the applicant meets the requirement of paragraph 245ZV(k)”.
The guidance further list down factors that an Entry Clearance Officer must consider before refusing the said application under paragraph 245ZV(k). The relevant list could be seen from paragraph 4 (i) to (v) of the guidance. Although the said guidance was withdrawn recently on 03rd January 2018, there may be clear majority of overseas students who may still benefit from the above guidance if they believe that their application was refused by Entry Clearance Officer incorrectly prior to 03rd January 2018 when the above guidance was in force.
The purpose of this article is to raise awareness for applicants who intended to study at a recognised Tier 4 sponsor in the UK, but their application was refused under paragraph 245ZV(k). In this situation, they can contact their Tier 4 sponsor to ask if their offer to study the course is still valid and can submit a request for Administrative Review with in 28 days from the receipt of the decision, provided that the decision was made prior to 03rd January 2018. Alternatively, they can challenge the decision in a Judicial Review within 3 months from the date of decision.
If you wish to make a visa application, or if your application has been refused, please feel free to book a consultation at this link.
Shahzeb Iqbal is a senior Immigration Lawyer at 1st Citizen. His profile can be seen at this link.