Academic progression is a matter for the institution, not the Home Secretary

The issue of a Confirmation of Acceptance for Studies (CAS) to enable an overseas student to apply for a Tier 4 visa requires the institution to confirm that the course the student is applying for represents ‘academic progression’. But what does this mean, and who decides whether it has been demonstrated?
At the end of last year, the Court of Appeal heard a case involving two students who had studied different courses at NVQ level 7. One then wished to study another course at a lower level and the other wished to study another course at the same level. Both institutions accepted that the second courses amounted to academic progression, and issued the necessary CAS, but the students’ applications for visas were refused by the Home Office due to a lack of academic progression.
The Court of Appeal commented that the term ‘academic progress’ was an ambiguous one and it was unsurprising that institutions (and not the Home Office) are given the role of deciding whether academic progression has been shown, since they are the ones with the expertise.
The Court stated that the issuing of a CAS and confirmation of academic progress are two separate matters, requiring an institution to separately confirm that a course constitutes academic progression. The student is then entitled to infer that the CAS has been sent to the Home Office, and the institution thinks the course constitutes academic progression.  In other words, the issue of a CAS creates a presumption or expectation that the course constitutes academic progress.
The Immigration Rules do not require institutions to deal specifically with academic progress in the CAS, even if the guidance does.  However, the Court of Appeal stated that the Secretary of State cannot rely on the guidance to create additional requirements. The issuing of a CAS creates a presumption that the institution has addressed its mind to the question of academic progression and has concluded that the course represents the necessary academic progress. The Secretary of State is able to challenge this but this issue should be between the institution and the Secretary of State - the student is not intended to be involved.
Both claims were therefore upheld as the Court of Appeal concluded that the students had shown academic progression.
It should be noted that whilst this case is useful in clarifying the role of institutions in determining academic progression, it is based on the Immigration Rules as set out in April 2012. Since then, additional requirements have been added stating that academic progression is shown only if the course is at the same level or above. Therefore, under the current Rules the outcome of this case would have been different for at least one of the students.
Nevertheless, the case provides some clarification for institutions. It is up to institutions to decide whether a course represents academic progression provided it is at the same level or above the previous course, and the Home Office is not in a position to undermine this assessment.
Eloise Di Pasqua
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1377
International DD: +44 800 763 1377
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