High Court Ruling on AP (Russia) and Others Regarding PBS Maintenance Requirement
Further update: please see blog post of 26 July 2010 "New UKBA policy on Points Based System Applications refused on maintenance grounds on or before 22 July 2010" for details of new UKBA policy on this subject.
Please note that New Immigration Rules implemented on 23 July 2010, means that this case as it relates to the PBS Maintenance Requirement, is arguably only of use in respect of refusal decisions made on or before 22 July 2010 that have been appealed. This should not be taken as full advice. There may be other grounds of appeal. This case is still of use in relation to Human Rights arguments, and potentially to challenge other aspects of the Points-Based System.
Lord Justice Sedley made the following findings in the matter of Secretary of State for the Home Department v Anastasia Pankina and Others, Neutral citation number  EWCA Civ 719, when deciding a Tier 1 (Post Study Work) appeal:
• The three month test in relation to the maintenance (funds) requirement does not form part of the Immigration Rules.
• The only relevant criterion was the requirement in Appendix C that there should be £800 at the time of application.
• The date of application, not the date of appeal, is the relevant date in respect of this type of application.
• Article 8 of the European Convention on Human Rights can be considered in relation to an appeal on this matter.
The Judge’s reasons for making these key findings
The Court saw the matters raised as being of constitutional importance. It considered the constitutional status of the Immigration Rules and their relation to departmental Policy and human rights. The issue in question was that the Immigration Rules require that there be £800 at the time of application, whereas the Home Office policy document requires the £800 to be held for 3 months prior to the date of application. The argument was that this introduced a further substantive requirement, as the Rules did not require the money to be held for 3 months. The objection was the use of Policy Guidance to erect the 3 month hurdle.
The Court considered that Immigration Rules were required to have “at least tacit Parliamentary approval”. The 1971 Act provides for the Rules to be laid down by the Secretary of State, and for their formal submission to Parliamentary scrutiny. Care was taken in the Immigration Act to preserve the Immigration Rules as an established category. The Immigration Rules represent Policy. However, the Court found that:
“… the Immigration Rules are today different from and more than Policy. On appeal to the Tribunal they acquire the force of law: the first ground of appeal under Section 84 (1) of the 2002 Act is that the Home Office decision is ‘not in accordance with the Immigration Rules’”.
The judge went on to find that:
“In my judgement the time has come to recognise that, by a combination of legislative recognition and executive practice, the rules made by Home Secretaries for regulating immigration have ceased to be policy and have acquired a status akin to that of law”.
It was concluded some form of Parliamentary authority for the Rules was constitutionally necessary. The judge went on to state that:
“It can make law only with the authority of Parliament. It follows that only that which enjoys or secures Parliament’s authority, in the present instance by the absence of a negative resolution within 40 days after laying, is entitled to the quasi-legal status of Immigration Rules”.
The judge concluded in this type of case the three-month criterion must form a part of the Rules laid before Parliament for it to be effective. It was decided the law:
“cannot simply abandon constitutional principal which for four centuries has stood as a pillar of separation of powers in what is today a democracy under the rule of law”.
Article 8, European Convention of Human Rights was found to apply to the Points-Based system. The judge found that:
“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. If the Home Secretary wishes the rules to be black letter law, she needs to achieve this by an established legislative route”.