What is a ‘Genuine Student’?
Under paragraph 245ZV(k) of the Immigration Rules, an applicant for entry clearance as a student is required to show that he is a ‘genuine student’. Guidance entitled ‘Tier 4 of the points-based system’ version 37.0 published on 30 November 2016 provides guidance as to when it is necessary to interview applicants, and as to how to assess genuineness.
A list of factors relevant to genuineness is provided although it is made clear that the list is not a checklist and the factors will not be appropriate in every case.
In summary, the factors relate to:
- The immigration history of the Applicant and any dependents in the UK and other countries
- The Applicant’s education history, study and post study plans;
- The personal and financial circumstances of the applicant and any dependents;
- The qualification, course provider and agents;
- Where an applicant will be accompanied by a dependant or dependants and it appears that one of the main applicant’s reasons for applying for a Tier 4 (General) Student visa is employment, education or health care benefits for the dependants;
- Some ‘pull factors’.
As regards the ‘personal and financial circumstances of the applicant and dependents’ it is noted:
“You must take account of the fact that the applicant will need to make a considerable investment in gaining a qualification from the UK.”
Some specific considerations relating to an applicant’s financial circumstances include:
- whether the applicant has credible funds to meet course fees, and living costs for themselves and any dependants for the duration of the course in the UK, in light of the fact that they may have limited or no ability to work in the UK
- how the applicant was able to acquire the necessary funds for course fees, as well as accommodation in a UK city and living expenses in the UK for themselves and any dependant
- the average monthly expenditure for the applicant and any dependant in the UK
As a result of this guidance, applications can be refused on the ‘genuine student’ ground purely with reference to an applicant’s finances. For this reason, it may be advisable for an Applicant to provide evidence relating to these factors in addition to the specified evidence relating to the ‘maintenance’ requirement.
However, where an applicant provides all necessary ‘specified evidence’ and is duly awarded 10 points for maintenance and yet is refused on ‘genuine student grounds’ with reference only to his finances, it may be possible to argue (in an Administrative Review) that this amounts to an incorrect application of the Immigration Rules or, sometimes, a failure to apply published policy.
As regards an incorrect application of the Immigration Rules, it is well established that the Secretary of State cannot impose additional requirements for leave to enter which are not contained within the Immigration Rules (see Alvi v SSHD  UKSC 33).
It may be argued that a refusal based only on an Applicant’s funds, where the Specified evidence of maintenance was provided, seeks to impose additional evidential requirements which were not contained within the Immigration Rules. In particular there is no requirement in the rules that an Applicant provides evidence of the source of the funds on which he relies, or the likely cost of living. Rather, the rules provide specified periods for which funds must be held in order to establish that the funds are really under the control of the applicant and available for his use (in the case of students, 28 days) and specify that an Applicant must hold funds amounting to a deemed cost of living depending on location. It can arguably be presumed that specified evidence is the evidence which is considered by the Secretary of State to adequately prove the substantive requirement of the rules to which it relates.
It is therefore arguable that it is irrational to require an Applicant to provide further evidence and that a refusal to grant leave due to the absence of such additional evidence is not in accordance with the immigration Rules.
Alternatively, where a refusal does not refer to the other factors set out in the guidance (summarised above) and where there was evidence relating to these provided either with the application or by the Applicant in an interview, it may be argued that the failure to consider all relevant factors amounts to a failure to apply published policy.
Contact Our Student Immigration Barristers
For advice in relation to any aspect of applying for a Tier 4 (General) Student visa or challenging a decision to refuse a Student visa, contact our immigration barristers in London on 0203 617 9173 or via our online enquiry form.