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McGill & Co is a Scottish immigration law firm specialising in UK immigration, nationality and refugee law.

Visitor or Student Visitor ?

17 September 2012 McGill & Co Solicitors Immigration

On the 11th September 2012, Lord Stewart at the Court of Session issued an opinion on the rationality and lawfulness of the way in which the immigration rules are applied to non EU nationals seeking to enter the United Kingdom for the purposes of pursuing courses which did not lead to a UKBA approved qualification.

The question was the interpretation of the phrase "course of study" . The argument was that it cannot sensibly and reasonably be applied to a short non accredited holiday course.

Lord Stewart outlined that the separation of the categories within the Rules was for a clear and specific purpose. There were categories of general visitors and categories of student visitors. He rejected the proposition that general visitors could not undertake a recreational course of study whilst here on holiday. He accepted that common sense must prevail and that " the rules must be open to interpretation".

Rule 41 (v) which prohibits general visitors undertaking a course of study must be read restrictively, and as meaning that a general visitor must not intend to undertake an approved course of study which complies, or could if accredited, comply with the requirements of Rule 56K, where general visitors are free to study where they wish and what they wish.

Whilst the immediate impact of this judgement may be slow to gather speed, consider this. Had the Secretary of State been successful in this action, those business entities in the recreation and tourist industries, would face a decline in business from non EU Nationals who would not be able to come to the United Kingdom to attend Mountaineering Courses in the Lake District, Jazz Workshops at the Edinburgh Festival, a cook school in Kilmarnock, or an Upholstery Course in Fife.  Was this government and parliamentary intention when these rules were conceived and published?

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