The decision

MS (Student – ECO Assessment of Language Ability) India [2004] UKIAT 00246


Date of Hearing: 1 July 2004
Date Determination notified:
09 September 2004


Dr H H Storey (Vice President)
Mrs A J F Cross de Chavannes
Mrs M E McGregor

Entry Clearance Officer, New Delhi



Representatives: Ms R. Brown, Home Office Presenting Officer, for the appellant; Mr J. Bird of IAS (London) for the respondent (“claimant”)

1. The appellant, Entry Clearance Officer, New Delhi, appeals against the determination of an Adjudicator, Mr R.A. Cox, allowing the appeal of the claimant, a citizen of India, against a decision dated 6 September 2002, refusing him entry clearance as a student to study on a GNVQ Foundation in ICT Course for one year at City College , Birmingham.

2. The Entry Clearance Officer’s reasons for refusing entry clearance were that the claimant conducted his interview through an interpreter; that he had not studied in any capacity since 1996; that in contrast to the previous application he had made in August 2002, he had made no mention of English Studies; and that he himself had not looked for a course of study in India or in the UK (his aunt had found the proposed course for him here). The ECO also counted against him his reply to a question as to what he would do at the end of the course. His reply was that he would “come back and if I get an opportunity to work overseas I will”.

3. It was not in dispute that the claimant had been accepted by City College on the nominated course and that this course was still open to this claimant. It was further accepted that there was no issue as to the ability of the claimant to satisfy all the requirements of paragraph 57(i)-(vi) except for 57(ii)(b) and (iv).

4. At the hearing before the Adjudicator oral evidence was given by the claimant's sponsor, Dr M.Y. Saigol.

5. The Adjudicator found the evidence of the sponsor credible and compelling. In regard to the point taken by the ECO against the claimant concerning ability to speak English, the Adjudicator was satisfied that despite choosing to conduct the interview through an interpreter, this claimant’s command of written and spoken English was adequate to enable him to do the specified course, particularly bearing in mind that the college was willing to supply assistance with language difficulties. The Adjudicator was further satisfied that the claimant had gained the equivalent of A levels in 1996. He viewed the failure of the claimant to engage in further study thereafter as adequately explained by the sponsor’s evidence concerning the claimant's poor rural background.

6. The grounds of appeal were essentially twofold. Firstly, it was argued that the Adjudicator should have regarded the ECO as best placed to assess the claimant's language abilities. Second, it was submitted that the Adjudicator unduly speculated when assessing that the claimant had the ability to write fluently in English.

7. The difficulty with the first ground of appeal is that the record of interview does not show that any attempt was made by the ECO to test the claimant's ability to speak or write English. In general we consider an ECO is well placed to test ability to speak and write English sufficient to undertake UK studies. ECOs may lack specific expertise in assessing linguistic skills for academic purposes and this lack may be relevant in borderline cases, but through their work in processing student applications ECOs can in general be expected to be familiar with the practical learning industry standards that are applied. However, if an ECO regards ability to speak or write English as an issue in any particular case, we consider that it is incumbent on him or her to alert the claimant to this fact. In this case, despite the claimant choosing to conduct the interview through an interpreter, the ECO gave him no inkling that this would be taken against him, nor was anything said to make clear to the claimant that he needed to demonstrate his fluency in English. The failure of the ECO to test the claimant properly as to his command of English greatly reduced the weight that could be attached to his assessment. In such circumstances we consider that the Adjudicator was quite entitled, having seen and heard the sponsor, to prefer the sponsor’s assessment that the claimant had adequate command of written and spoken English. The sponsor who had been found wholly credible, had met the claimant on two occasions.

8. Turning to the second main ground of appeal, we do not find that the Adjudicator's assessment of either the ability issue or the intentionality issue was unduly speculative. The sponsor had given relevant evidence concerning these matters and, in the particular circumstances of this case, the Adjudicator was fully justified in treating such evidence as weighty.

9. There was no basis either for disbelieving the evidence given by the sponsor, who had taken a close interest in the claimant's application throughout, concerning the fact that the claimant had written an essay in English as part of the admissions procedure required by City College. The Adjudicator was also quite right to treat as a relevant consideration, in assessing ability to do the course in question, that City College confirmed in a letter dated 5 September 2003 that ESOL support would be provided if required. Whilst there was no specific mention of this in earlier City College correspondence, there was no reason to believe that ESOL support was not a regular component of its courses.

10. Although intention to depart was not as such challenged in the grounds, we would for completeness record our finding that we also consider the Adjudicator gave entirely sound reasons for concluding that the claimant met this requirement of the Immigration Rules. Partly in view of the pro-active role played by the sponsor in encouraging the claimant to pursue further studies, the Adjudicator was quite entitled to conclude that the claimant had no intention of remaining in the UK after completion of his studies. It was also open to him to assess that the claimant's remark about pursuing opportunities to work overseas if they arose, did not betray an intention to depart upon completion of the studies for which he had applied on this occasion.

11. For the above reasons we consider that the Adjudicator did not err in concluding that the claimant met the requirements of paragraph 57 in full. In particular, it was open to the Adjudicator, on the fuller evidence he had before him, to be satisfied that the claimant had shown that he was able and intended to follow his nominated course and that he intended to leave the UK at the end of his studies.

12. The Adjudicator directed that entry clearance be issued forthwith. In the light of our dismissal of the ECO appeal, we would expect entry clearance to be granted forthwith. However, in view of the elapse of time it would be prudent for the claimant to produce to the ECO evidence to confirm that the course in question remains open to him in the current or coming academic year.