THE appeal against the UK Home Office’s Interpretation of the Points Based System has succeeded in the Court of Appeal. The case is Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719.
The immigration rules on students, employment and self employment were changed into the Points Based System (incrementally) in 2008 and 2009, gradually replacing some of the key immigration categories.
The Points Based System was designed to be more transparent and easier for applicants to understand. In my experience, the new system has taken away much of the discretion in the UK Border Agency’s decision making and this has resulted in applications being refused if a person lacks a particular document for example.
The maintenance requirement of £2,600 (if applying outside the UK) or £800 (if applying inside the UK), has also caused difficulties for a number of applicants. An applicant must show that they have held these funds for three consecutive months prior to their application and this has presented a problem where level of funds/savings has fallen under the required amount. In many cases falling below the required £800 for even one or two days has led to a refusal of the application and subsequently on appeal.
The appeals that came before the Court of Appeal concerned the maintenance aspect of Tier 1 Post Study Work visas, the only requirement was that the applicant held £800 at the time of application, as specified in Appendix C of the Immigration Rules. The argument by the appellants was that all the other requirements set out in the guidance, for example on the form of evidence to be presented and the length of time for which the funds had to be held, were merely guidance and do not have the strict force of law ascribed to them by the tribunal in the case of NA and Others [2009] UKAIT 00025.
The case of NA and Others in summary held that the new-style Immigration Rules governing Tier 1 (Post Study Work) contain a Maintenance (Funds) requirement in mandatory terms that admit no discretion, and make no allowance for sickness or other mitigating circumstances. To qualify, an (in-country) applicant must show he or she held £800 or over for each and every day of the period of three months immediately preceding the date of application.
The Court in Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719. does not strike down the entire PBS system but holds that the only binding and effective part of the PBS rules and guidance are those set out in the Immigration Rules themselves. This is because these are the only provisions that have been properly laid before Parliament.
The Court also held that that Tribunal was correct regarding the effect of section 85(4) of the 2002 Act, in that the relevant date is the date of application, not the date of appeal. This is specified in the rule itself.
The Court takes a notably different approach to the tribunal on human rights issues, making it clear that the Tribunal should properly consider the context of the alleged need to maintain immigration control in a particular case:
The Court held that the Home Secretary must have regard and give effect to applicants’ Convention Rights. This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here.
From my experience, many judges have been following this approach in dealing with PBS cases. A recent case that we dealt with relates to a Nigerian student whose application for an extension under Tier 4 of the PBS was refused on the basis that he was unable to show that he had the required maintenance.
His schools fees amounted to some £10,000 for which he had paid half. He did not have the required £7,200 in his account at the time of making the application. He paid his fees in instalments as and when his parents had the funds. The Judge held that the appeal failed under the immigration rules and given that there is no discretion within the rules, he found that the appellant’s claim under the rules was bound to fail.
The Judge in this particular case held that the appellant’s removal would cause an interference of such seriousness that it does engage Article 8. He took into account the length of time that the appellant had been studying, the length of time that he had been studying and the fact that he was shortly due to complete his studies. We will no doubt see more decisions like this in the future.
What does this mean for future applicants?
The only strictly binding parts of the System which must be applied rigidly are the parts set out in the Immigration Rules and Appendices. The ‘requirements’ or rather suggestions set out in the guidance must be interpreted sensibly and flexibly in line with the relevant Immigration Rule and its purpose. If a person goes briefly below the required funds threshold but is otherwise above it, their application should be allowed by UKBA or, failing that, their appeal should be allowed.
If an applicant presents bank statements from an online account that do not meet the exact requirements set out in the guidance, a judge needs to assess whether the funds are held and make a judgment, rather than apply a tick box approach. If the letter from the college does not follow the exact format as set out in the guidance, then the UKBA should consider whether the appellant has indeed attended the college and also to view the certificate and other documents submitted in support of the application.
There are many people that have lost their cases and, become overstayers, lost their jobs, stopped their college courses or university or otherwise had to leave the UK prematurely, sometimes with their partners and children because of the inflexibility of the system. There is not much hope for those that have left the UK except to reapply from abroad.
For those that are still in the UK, there is still hope as the rules allow for applications to be made after leave to remain has expired. The PBS rules are written in a way to allow applicants whose applications has been previously refused to make an application when they have no leave to remain.
A person “who is applying for leave to remain must have, or have last been granted, entry clearance, leave to enter or remain”. Before the commencement of the PBS, Lord Bassam stated that the Home Office policy would be that late applications would be considered if submitted within 28 days of the expiry of leave. After that, applications would be considered if submitted up to six months later, if there were exceptional circumstances. In the event, implementation was in fact more generous than this and the Immigration rules simply state that a person must have or have last been granted leave in certain immigration categories. This enables overstayers to apply for PBS visas in-country, providing they were last granted leave in a relevant category.
It is important to remember that overstaying in excess of 28 days risks engaging immigration rule 320(7B). This provision is not applied where a grant of leave has been made subsequent to the overstaying.
The decision in Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 brings relief to many prospective applicants and even to applicants that are still in the process of reapplying as the new law will apply to them.
Rumbidzai Bvunzawabaya is a Solicitor at RBM Solicitors based in Coventry. She can be contacted at info@rbmsolicitors.co.uk or telephone: 02476520999
Disclaimer: This article only provides general information and guidance on immigration law. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information
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