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Pankina and Beyond! Students and knowledge of English

Pankina and Beyond! Students and knowledge of English

I recently acted in an appeal concerning a Tier 4 Student application in which the sole reason for refusal concerned the appellant’s English language ability.  Since April 2011 all degree–level students have been required to show knowledge of English equivalent to the “B2” level of the Council of Europe’s Common European Framework for Language Learning (‘CEFR’) in all four components: reading, writing, speaking and listening.

A similar issue was recently considered by the High Court in the case of Chapti & Ors v SSHD [2011] EWHC 3370 (Admin) where the position in respect of spouses and civil partners applying for entry clearance and the pre-entry entry requirement of A1 CEFR for English being introduced into the Immigration Rules for the first time was addressed.  Hopefully this debate, whether in the courts or on a lobbying level, will not stop there.  However, for today and for the purposes of this post, I am limiting myself to the B2 CEFR level and what these weird and wonderful acronyms actually mean – both in law and in reality.

There are various means by which a student can demonstrate the requisite level of English.  One of the ways is for the student to submit a test certificate from an approved examination provider.  The student in the case that I dealt with had submitted an IELTS test certificate (International English Language Testing System) and their results were 5.0 in 2 of the subjects and 6.0 in the 2 others.  And the UKBA was of the view that the B2 level is equivalent to 5.5 in the IELTS test so the student’s application failed.

I must say that I faced great difficulty in getting my head round the Immigration Rules and what exactly is encompassed in the B2 level.  This should not have surprised me as most PBS applications, if not all, are so unnecessarily complicated… But my task was first compounded by the fact that I could not even find the UKBA’s own guidance on what B2 is actually equivalent to against the various test providers.

What I thought was a lack of guidance was my first argument in my skeleton but as soon as I entered the hearing room, the Judge handed to me an extract from UKBA guidance that she had managed to locate on the UKBA website so I had to swallow that thought and get reading!  Typing “B2 CEFR” in the website’s search engine revealed the guidance, so another reminder that legal research can also start with the basics. You will see from this document that the UKBA has set out the marks in the IELTS as per their position in this appeal, i.e. 5.5 in all 4 components [p.4].

Beyond the UKBA guidance, I had thankfully also ventured a little further in my own research and I had come across several website pages that, in my view, set out that the UKBA’s assertion that a minimum of 5.5 in each of the four areas under the IELTS is required to meet the level of B2 is incorrect.  The IELTS website contains details of the examination provider mapping its scale to the CEFR and from a reading of Figure 1 the B2 level covers the range of scores 5-6.5.

Further down that webpage, the following passages are worth noting:

Specifying the relationship between a test product and the CEFR is challenging because, in order to function as a framework, the CEFR is deliberately underspecified (Davidson & Fulcher, 2007; Milanovic, 2009; Weir, 2005). Establishing the relationship is also not a one-off activity, but rather involves the accumulation of evidence over time (e.g. it needs to be shown that test quality and standards are maintained). (…)

As IELTS preceded the CEFR, IELTS band scores have never aligned exactly with the CEFR transition points.  The new table makes this clearer.

Wikipedia.org also came up trumps (as it usually does) and details that the CEFR B2 level is equivalent to IELTS 5.0 to 6.0-6.5.  So although Wikipedia is not the best of sources, the IELTS pages are certainly directly on point and who, might I ask, is better placed to say what B2 is equivalent to in the IELTS exam than the actual examination provider and their researchers ?!

Equipped with the above, we argued that the UKBA’s guidance on the IELTS/B2 equivalence could not be relied on.  The lovely Pankina came to the rescue again in support of the argument that the UKBA guidance could not be said to be an “extant and accessible outside source” [Para 26].  It perhaps would have been different if the Rules had expressly referred to an outside source such as the CEFR or IELTS itself in order to provide guidance on what B2 is equivalent to in a test result.  However there is no such reference in the Rules and the Guidance does not go into such detail either.  It merely asserts in a much more restrictive way (and incorrectly) what the B2 level is equivalent to in the IELTS.

The Judge agreed and the appeal was allowed.  Obviously the above is only in relation to the B2 level and its equivalence in the IELTS examination.  By the time I had finished preparing my case, I would have lost the will to live had I embarked on researching the other examination providers or the other levels of the CEFR, e.g. A1 or B1 which respectively are relevant in entry clearance spousal/civil partner and below-degree level student applications.  This little exercise though just went to show that what at first blush seemed rather straight forward and narrow is actually very far from it.

And as far as international students are concerned, it’s certainly a shame that this requirement is implemented in such a convoluted and complex way, regardless of whether or not the English language requirement should have been imposed in the first place.  There may be bogus colleges and students around but the vast majority are hard-working, make good progress in their studies (taught in English!) and are of benefit to their communities both here and abroad.

Sarah Pinder
Sarah is a specialist immigration barrister at Mansfield Chambers in London. She also practices in family law and has a particular interest in cross-over issues within the two areas of law. Prior to joining the Bar, Sarah worked for 6 years in the not-for-profit sector as a specialist immigration caseworker.

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