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 of immigration control must be placed before parliament for consideration. Accordingly, a change in the minimum course level could only be changed via a process including parliamentary scrutiny and could not be effected merely by changing the policy guidance.
Where to from here for the Points Based System?
Amendments to the Immigration Rules were laid on 22 July 2010 to reverse the practical effect of the Pankina and English UK judgments. Normally Immigration Rules are put into effect 21 days after being laid, however the relevant rules came into force on 23 July, using an exceptional procedure that allows rules to be brought into immediate effect. Due to the parliamentary timetable, these changes may not be debated (if at all) until at least October.
The amendments mean that Points Based System migrants now must hold maintenance funds for 90 days (or 28 days in the case of Tier 4 migrants and their dependants), and Tier 4 (General) migrants can only study English in the UK on courses at CEFR level 2 or above.
These changes address some immediate issues, however, where any substantive criterion for eligibility for admission or leave to remain is incorporated in policy guidance, its legality is open to challenge. Indeed, the legality of the entire structure of sponsorship (all of which is contained in policy guidance) also may come under serious question. Further amendments to the Immigration Rules are likely to be required in order to shore up the system and prevent further legal challenges.
Regarding longer term changes, the Coalition Government is currently in the process of consulting on reforms to Tiers 1 and 2 of the Points Based System, with consultations on the other tiers to follow. Further amendments to the Immigration Rules will be made as the immigration system is adjusted to accommodate the Government's promise to reduce net migration to tens of thousands per year.
Whatever the proposed changes will be, it is clear that the Government must make them via the Immigration Rules and not via the more 'flexible' and less transparent process of amendments to policy guidance.
The UK Border Agency has not yet released any guidance for those individuals whose Points Based System applications were unlawfully refused due to a failure to hold maintenance funds for a particular period of time. Those individuals should seek immigration advice on a case by case basis or contact the UK Border Agency directly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.