The question the Court of Appeal had to answer in Pankina and others v Secretary of State for the Home Department [2010] EWCA Civ 719 was whether the UKBA’s Points Based System Policy Guidance was or was not law.
The Guidance is referred to as follows at Rule 245AA of the Immigration Rules:
“(a) Where Part 6A or Appendices A to C, or E of these Rules state that specified documents must be provided, that means documents specified by the Secretary of State in the Points Based System Policy Guidance as being specified documents for the route under which the applicant is applying. If the specified documents are not provided, the applicant will not meet the requirement for which the specified documents are required as evidence.”
and at Rule 245 AA (c):
“Where Part 6A or Appendices A to C, or E of these Rules refer to the United Kingdom Border Agency guidance, this means guidance published by the United Kingdom Border Agency for use by Sponsors or migrants to ensure compliance with these Rules. If the Sponsor or applicant does not satisfy the requirements set out in guidance and referred to in these Rules, the applicant will not meet the related requirement in these Rules.”
In this way it is the Guidance which determines eligibility for entry clearance and leave to remain in the UK for people in every Tier of the points based system.
As the Court pointed out the actual subject of the individual appeals appeared to be trivial – but the resolution of the question of the legal status of the Guidance is of huge significance.
The apparently trivial subject matter is as follows: all the Appellants had made applications for leave to remain in the UK as Tier 1 (Post Study Work) Migrants. Each of these had been refused because at the time of their applications they had not shown that they had £800 for the three-month period immediately preceding their applications which is stipulated in the Guidance. All of the Appellants but one however had had this amount of money in their bank accounts at the time of their applications.
The requirement that they had to have £800 when they made their applications was in the Rules – but the requirement that they had to have it for a three-month period was in the Guidance.
The Appellants’ argument was that while the Immigration Rules were approved by Parliament in the same way that legislation has to be, the Points Based System Policy Guidance was not. It was referred to in the Rules, but it could be changed and amended whenever the UKBA wished to do so. This process was neither overseen nor approved by Parliament.
By reference to the history of the Immigration Rules and to the process of how laws are made and have been made in the UK for the last 400 years – the Court has held that it is only Immigration Rules which could properly form the basis of the UKBA’s decisions. Having not been approved by Parliament the Guidance did not amount to enforceable legal requirements.
The consequence of this was that each of the Appellants who had had the £800 which the Rules had required them to have when they applied for leave to remain won their appeals. The requirement to have the money for three months was not a rule – it was merely policy.
The Court’s conclusion fully confronts the UKBA’s main point – which was that there's nothing wrong with a “measure” (i.e. a piece of legislation of some form), which does go before Parliament referring to another document which exists and is accessible. For example Rule 6 of the Immigration Rules says that a college must provide courses which are recognised by an appropriate accreditation body.
But this is not the same as:
“rules which purport to supplement themselves by further rules derived from an extraneous source, whether that source is the rule-maker him- or herself or a third party”.
Given the extent to which the points based system relies upon the interplay between Immigration Rules on the one hand, and the frequently changing policy guidance on the other – the significance of this conclusion can’t really be overstated.
The Court also addressed the question of human rights. It emphasised that decisions under the points based system have to take proper account of individuals’ rights protected by the European Convention on Human Rights. It said:
“It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile. It is another for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant’s ability to continue to live without reliance on public funds. Having £800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1 entry.”
So the UKBA must approach the requirements of the Rules in a spirit of common sense, and not simply as a box-ticking exercise. They will have to start again to exercise the discretion which, as the Asylum and Immigration Tribunal found in
NA & Others (Tier 1 Post-Study Work-funds) [2009] UKAIT 00025 the points based system was to eradicate.
One of the Appellant’s arguments – that it was possible to succeed in an appeal by relying on evidence which came into existence after the UKBA’s decision, did not succeed. It seems therefore that the law on this issue remains as it was stated to be in NA & others, that such evidence can be relied on in an appeal but only, because of the terms of Appendix C of the Immigration Rules, if it existed at the date of the Appellant’s application to the UKBA.
The effects of this judgment appear to be very serious indeed for the points based system. There is a plethora of Guidance published on the UKBA’s website – all of it interlacing with the Immigration Rules to create the system’s strict criteria for entry clearance and leave to remain, and also for colleges and employers to be entitled to sponsor students and skilled workers. None of it, it seems, is legally effective.
It is expected that the UKBA will apply for permission to appeal to the Supreme Court.