UKBA Forced to Re-Think PBS Rules and Guidance Following Successful Legal Challenges

The UK Border Agency has been forced to make amendments to the Immigration Rules following two successful legal challenges. The two cases, Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 and English UK v Sectetary of State for the Home Department [2010] EWHC 1726 (Admin), were both handed down in July 2010. The findings in these cases raise serious concerns regarding the legality of incorporating substantive requirements of the points based system into policy guidance rather than the Immigration Rules themselves.

The Pankina and English UK judgments

The issue for determination in Pankina whether in country Tier 1 (Post Study Work) were required to hold £800 in maintenance funds at the time of application (as set out in Appendix C to the Immigration Rules), or for a continuous period of 3 months prior to the application (as set out in the Tier 1 (Post Study Work) policy guidance).

The Court of Appeal observed that rules (such as the Immigration Rules) must be certain in their content and subject to parliamentary scrutiny. By contrast, policy must be applied without rigidity and adapted in the interests of fairness and good sense. The court went on to hold that it is unlawful for criteria affecting individuals' status and entitlements to be incorporated in a source outside the Immigration Rules, if that source is impermanent or undetermined and not subject to parliamentary scrutiny each time it is changed. Since the criterion to hold the maintenance funds for 3 months was incorporated in changeable policy guidance not subject to parliamentary scrutiny, it could not be considered a lawful requirement.

In the English UK case, the Immigration Rule in question stipulated that courses offered by Tier 4 (student tier) sponsors must meet minimum academic requirements set out in policy guidance. The guidance itself specified that English language courses could only be offered to Tier 4 (General) migrants where the course was at level A2 or above on the Common European Framework of Reference for Languages (CEFR). The guidance was later amended to increase the minimum course level from level A2 to level B2.

The High Court adopted the reasoning in Pankina to find that whilst it may be permissible to for an Immigration Rule to refer to policy guidance available for scrutiny by parliament at the time the rule is made, section 3 (2) of the Immigration Act 1971 requires that any material or substantive change in the administration...