The operation of the
Points Based System has been put at risk by the judgments of the Court of Appeal in
Pankina and of the Administrative Court in
English UK.
On Tuesday 20 July 2010 the government confirmed to the Immigration Law Practitioners Association, via the Treasury Solicitors' Department, that it was not going to apply for permission to appeal to the Supreme Court against the Court of Appeal's judgment in Pankina.
The Treasury Solicitors Department also indicated that "interim guidance" had been issued to case workers at the Home Office. It is understood that the interim guidance is, or rather was, in the following terms:
"As per the Interim Instructions received by us, the applicants under PBS routes are required to demonstrate that they hold the required level of funds on one day during the one month period prior to the date of application. The said interim instructions are applied at PEO until we receive any further instructions in this regard.
For example, if an application was made by a Tier 1 (Post Study Work) migrant with no dependants on 12 July 2010, a single bank statement with a closing balance of £2,800 dated between 12 June and 12 July 2010 will meet the maintenance requirements. In this example where the application was made on 12 July, the bank statement must not be more than a month prior (so any statement dated before 12 June 2010 will not be acceptable)."
There seems to have been no attempt to publicise this guidance in the UK on the UKBA website or anywhere else. Neither is it on the Entry Clearance Guidance site.
The first important thing to notice about this "interim guidance" is that it deals only with the particular criteria of the Points Based System Policy Guidance which featured in Pankina. With one exception, those cases each involved people whose applications for leave to remain as a Tier 1 (Post-Study Work) Migrant had been refused because they hadn't held the required amount of money for a period of three months ending with the date of the application. The Court of Appeal found that this requirement had been unlawful because it hadn't been in the Immigration Rules. It had only been in the Tier 1 (Post-Study Work) of the Points Based System - Policy Guidance.
This interim guidance therefore applied the judgment in Pankina in as limited a way as possible –people were to succeed in their applications if they could show that they had the money when they made the application. Caseworkers were told not to apply the three month requirement.
The second important thing about the interim guidance is that it's no longer applicable. Since its quiet announcement on Tuesday 20 July 2010 it effectively ended barely three days later on Friday 23 July 2010.
This is because on Thursday 22 July 2010 the Secretary of State for the Home Department laid before Parliament a Statement of Changes in the Immigration Rules – HC 382. This makes a series of changes to the Points Based System, predominantly in respect of Tier 4.
However it also puts into the Rules for the first time the stipulation that anyone applying for entry clearance or leave to remain under the Points Based System (except for as a Tier 1 (Investor) Migrant, a Tier 2 Migrant or a Tier 5 (Temporary Worker) who needs to meet the maintenance requirements in Appendix C of the Rules must show that they have held the necessary amount of money for a three month period ending no more than one month before the date the application is made.
Also announced on Friday 23 July 2010 was the UKBA's POINTS-BASED SYSTEM MAINTENANCE (FUNDS): POLICY DOCUMENT. In this document the UKBA says that in the light of the judgment in Pankina it will reconsider the following decisions to refuse on maintenance grounds:
- applications for entry clearance (i.e. from outside the UK) under Tiers 1,2, 4 and 5 of the Points Based System which were made between 23 June and 22 July 2010 inclusive; or
- applications for leave to remain (i.e. from inside the UK) on or before 22 July 2010, provided that the applicant was lawfully in the UK at the time of the application and is still lawfully in the UK
What is remarkable about this new Statement of Changes in the Rules is the fact that Parliament has been provided with no opportunity whatever to consider them. The usual convention is for the Secretary of State for the Home Department to lay any new Statement of Changes in the Immigration Rules before Parliament not less than 21 days before the changes come into effect. But this time they come into effect the day after the Statement is laid.
While there's nothing actually unusual about Rules coming into effect before the 40 day period within which Parliament can if it wishes issue a negative resolution – there's also no doubt that until that period has elapsed whatever changes are introduced are not law.
The Secretary of State for the Home Department did the same thing earlier this month, when on 15 July in HC 96 she added a new paragraph 63A to Appendix A of the Rules, entitling herself to limit the number of Certificates of Sponsorship employers who have a Tier 2 Sponsor licence can issue in any one period.
The explanatory notes accompanying both of these statements each explain that the measures have been taken following the judgments in Pankina and in English UK, and to try to protect the Points Based System against the risk of further legal challenge.
Some people would say that this is a vain hope. The judgment in Pankina, which we now know to be unchallenged and which therefore must be followed in any future litigation other than in the Supreme Court, makes it clear that it is very far from OK for the criteria for permission to come to or to stay in the UK to be contained in changeable "policy guidance" to which the Immigration Rules refer. What is wrong with such a practice is that it:
"means that a discrete element of the rules is placed beyond Parliament's scrutiny and left to the unfettered judgment of the rule-maker."
The bewildering complexity of a system heralded by the UKBA for its simplicity increases as it receives this kind of piecemeal surgery in an attempt to prolong its life.
Anyone in the UK who either must make an application to extend his or her leave to remain, or whose application has been refused, is strongly advised to obtain professional legal advice in the light of these developments.