Back in February of 2010 the then Secretary of State for the Home Department announced that in his view people were coming to the UK to study too low a level of proficiency in the English language. The courses being offered simply weren't sufficiently demanding.
So he said that he would make it a condition for entry clearance that people had to study for qualifications in English that were at least as high as Level B2 of the Common European Framework of Reference for Languages (CEFR).
Level B2 proficiency in English is described as follows in the CEFR:
"Can understand the main ideas of complex text on both concrete and abstract topics, including technical discussions in his/her field of specialisation. Can interact with a degree of fluency and spontaneity that makes regular interaction with native speakers quite possible without strain for either party. Can produce clear, detailed text on a wide range of subjects and explain a viewpoint on a topical issue giving the advantages and disadvantages of various options."
English UK is an association of accredited English language centres which teach English to about 400,000 international students each year. Its staff and the students wishing to learn English in the UK via its member organisations had a lot to lose by the Secretary of State's decision - to say nothing of the cost to the UK economy in being deprived of foreign earnings in fees paid by these students. In these circumstances English UK decided to challenge the legality of the proposed change.
The Secretary of State for the Home Department sought to implement the change by altering the Tier 4 Sponsorship Guidance. By the time of the challenge reached the Administrative Court English UK had a powerful weapon to support its attack, which was the
Court of Appeal's judgment in Secretary of State for the Home Department v Pankina; Malekia & Others v Secretary of State for the Home Department [2010] EWCA Civ 719.
Pankina is all about the Secretary of State not being allowed to make rules without Parliament's approval. The Court in that case found that the UKBA's guidance was changeable and that this feature of it made it not a permissible source of rules with legal effect regarding the requirements for admission or for leave to remain in the UK.
Mr Justice Foskett found that this decision was binding upon him and that what it had basically decided was that:
"a provision that reflects a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involves a true Parliamentary scrutiny"
[Mr Justice Foskett's emphasis]
Since the requirement for courses to be at level B2 of the CEFR or above wasn't in the Immigration Rules but instead in the guidance the judge found that the change was not lawful. Much more will follow both this case and Pankina. It is clear however that the judiciary is, to put it very gently, extremely uncomfortable with the Points Based System. It doesn't like the idea of a department of state regarding itself as entitled to regulate the entry of people to the UK and their expulsion from it, by reference to rules which are not placed before Parliament.
In the meantime the legal position of anyone in the UK with leave to remain granted under any provision of the Points Based System would be well advised to seek professional advice as to the implications of these cases. They are directly relevant to applications for entry clearance and for leave to remain, and their deployment in such applications and in any appeals against immigration decisions may well make the difference between success and failure.