The Court of Appeal's judgment in
Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 (23 June 2010) continues to affect the UKBA's immigration policy relating to applications made under its "points based system".
As was
reported on this site the Court found that it was not open to the Secretary of State to fix the criteria which must be met by applicants for entry clearance or for leave to remain in the UK by including them in
"policy guidance" which did not form part of the Immigration Rules.
The particular criterion which was the subject matter of the appeals before the Court of Appeal was the requirement that applicants had to have the amount of money stipulated in the Immigration Rules to show that they could support themselves (and any family members) in the UK for a certain amount of time immediately before they made their applications. This meant that any application which had been refused because the applicant had not had the necessary funds for the length of time set out in the policy guidance had been wrongly refused.
In late July 2010, after initially announcing its intention to apply to the Supreme Court for permission to appeal against the Court of Appeal's judgment the UKBA said it would now not apply to the Supreme Court.
Then on 22 July 2010 a new
Statement of changes in the Immigration Rules (HC 382) was laid before Parliament, in which among other things the length of time that applicants must have the necessary funds was included in the Immigration Rules themselves for the first time. This change came into force the next day, 23 July 2010.
On 23 July 2010 the UKBA published a policy on its website entitled
"Points based system – maintenance (funds) policy document". Under this policy the UKBA undertook to reconsider the decisions it had made up to and including 22 July 2010 to refuse applications because the applicant hadn't shown that he or she had the funds for the period fixed by the policy guidance.
However the policy stipulated that anyone applying for reconsideration had to be "lawfully in the UK" when they did so. It said:
"16. Migrants must be lawfully in the United Kingdom in order to take advantage of this reconsideration process
17. A request by a migrant for a previously refused application to be reconsidered under this policy will be treated as an application to switch from the migrant's current leave to the leave granted as a consequence of the previously refused application."
While the policy was ostensibly a practical solution to the
Pankina judgment which would in some cases make it unnecessary for people to issue applications for judicial review or to continue with appeals which were pending when the policy document was published – the requirement for applicants for reconsideration to be "lawfully in the UK" disqualified the majority of people who had been wrongly refused.
Most of them would have applied for further leave to remain shortly before their leave to remain was due to expire, and they would therefore no longer be "lawfully in the UK". Furthermore if they had appealed unsuccessfully against the refusal of their applications they would not have leave to remain in the UK and so could not claim to be here "lawfully". Indeed unsurprisingly many people left the UK following the refusal of their applications for leave to remain simply because not doing so would have led to their being "overstayers".
Yesterday (22 November 2010) the UKBA replaced its "Points based system – maintenance (funds) policy document" with a revised policy, in which the requirement for applicants for reconsideration to be "lawfully in the UK" has been removed. Under the new policy those previously disqualified by the need to show that they are lawfully in the UK, including those who have left the UK, are now entitled to apply for reconsideration.
If they can show that they had the necessary funds
"on any one day during the one month period prior to the date of application" – they will be granted the leave to remain which they were earlier refused.
The new policy specifically provides for people who have left the UK after their applications for leave to remain were refused. It provides an address to which they should write, enclosing information as to the previous refusal.
There are likely to be very many people who, together with their family members, are eligible to benefit from this revised policy.
Gherson has followed the ramifications of the Pankina judgment closely on its website. Its solicitors and paralegals are ideally placed to advise and to represent anyone seeking to make an application under the policy's terms, or who thinks they may be able to do so.