Turning point

The Court of Appeal judgment in Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 marks a long-awaited relief to all those who are subject to immigration control and the rigid requirements of the Labour government's points based system (PBS).

Five similar cases were heard in conjunction with Pankina as part of the appeal. All of the applicants in the appeal case were graduates of approved UK insitutions who wished to remain in the country to work.

The post-PBS and pre-Pankina scenario left no room for discretion for caseworkers or immigration judges sitting at the tribunal level. The PBS was introduced by the last government and intended, quite ironically, to be more transparent and easier for applicants to understand.

As presiding judge, Lord Justice Sedley outlined: 'Although the issue which each of these appeals raises looks on its face marginal almost to the point of triviality, it is an issue of constitutional importance and of real difficulty. The issue is whether the executive, in rules which are required, subject to parliamentary oversight, to set out how it proposes to exercise its statutory functions, can lawfully reserve to itself the power to add to or modify those rules. It raises questions about the constitutional status of the immigration rules and about their relation to departmental policy and human rights.'

Of the many novelties or enigmas that Sedley LJ examined in Pankina, was one requirement which had resulted in a plethora of refusals, the maintenance requirement of £2,600 if applying outside the UK, or £800 if applying inside the UK. An applicant must show that they have held these funds for three consecutive months prior to their application and, surprisingly, the requirement is so stringent that it did not permit any fall in the amount for a day, not even by just a few pounds.

Strictly speaking

The decision of Pankina, therefore, is a very important one which, in effect, reverses the extremely harsh and rigid outcome in NA and Others [2009] UKAIT 00025, a decision which had established that the PBS Policy Guidance had to be strictly followed and applied with no room for discretion.

In Pankina, the argument by the appellants was that all of the requirements set out in the guidance, for example the form of evidence to be presented and the length of time for which the funds had to be held, were merely 'guidance' and did not have the strict force of law ascribed to them by the tribunal in the case of NA.

The Court of Appeal did not strike down the entire PBS but held 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. Thus, the requirements 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 UK Border Agency or, failing that, their appeal should be allowed.

The appeal judgment notes: 'The legal system is today familiar with statutory codes which are not law but can be adduced in evidence, and with ministerial policies to which regard must be had in taking a lawful decision. The nature and status of these is generally clear from the legislative framework in which they operate, and the courts have ultimate control of their legality.

'Likewise the nature and status of delegated legislation is ordinarily discernible from the primary empowering legislation; here too a material transgression of the primary powers will generally result in invalidity. Importantly, whether this has occurred is a matter for the courts, even where Parliament has approved the measure by affirmative resolution, because, while the establishment of delegated powers depends on primary legislation, their due exercise is a question of law.

'As Laws J pointed out in R v Secretary of State for Social Security, ex parte Sutherland [1996] EWHC 208 (Admin), 'where the executive has been allowed by the legislature to make law, it must abide strictly by the terms of its delegated authority'. The rules made from time to time by the home secretary as to the practice to be followed in administering immigration control do not fit any of these models.'

Later, the judgment continues: 'But 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 immigration rules'. The ineluctable effect is that departmental decision-makers too are required to abandon any idea of listening, as Lord Reid said they must, to any commonsense or special reason for applying policy flexibly and to stick in every case to the letter of the rules.'

Bringing relief

The decision in Pankina brings relief for many prospective applicants and even for those applicants that are still in the process of reapplying as the judgment will be relevant to them. Many applicants have lost their cases '“ by the Home Office's own lawyers' estimate this is put in excess of 53,000 cases '“ and have become over-stayers. They have lost their jobs or stopped their education midway, in some cases when they were in their last semester and nearing completion of their studies. There are also many others who were also forced to leave the UK prematurely. Unless some form of relief category is brought in, there is not much hope for those that have left the UK. For those that are still in the UK, there is still some hope as the rules allow for applications to be made after leave to remain has expired.

Lord Justice Sedley, in a clear, comprehensive and timely judgment, made reference to the Case of Proclamations [1610], in which Chief Justice Coke held that the executive cannot simply create laws without Parliament: 'The King has no prerogative but that which the law of the land allows him.'

The reasons given by the court for this generous and common sense decision are steeped in complex constitutional questions and the doctrine of separation of powers. Simply put, Parliament makes law and the executive enforces that law. Fundamentally, this case is about Parliament and its preserve as lawmaker. Conditions and guidance which significantly alter how the law is applied must require parliamentary approval. Government department officials cannot simply be allowed to add guidance which redefine rules and result in significantly changing their application without the proper independent scrutiny and debate that Parliament affords.

Room to breathe

This decision restores the discretionary powers of immigration judges to rule in such cases. Pre-Pankina, immigration judges have had no room for manoeuvre when hearing appeals around such cases. Those judges who found themselves sympathetic to the circumstances of appellants or believed that the appellants were in a position to maintain themselves without recourse to the public purse (which was the initial purpose in spirit of this requirement) found they were unable to exercise their discretionary powers. Such rigidity stemming from a mere document which is supposed to act as guidance for appellants could surely not be right especially without parliamentary approval. In other words, the Court of Appeal has provided an education to the government and stated that we live in a democracy and no legally-binding rules with harsh consequences as mentioned above may be delivered by the secretary of state without the approval first of the other democratically-elected individuals.

Last, 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: '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 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. If the home secretary wishes the rules to be black letter law, she needs to achieve this by an established legislative route.'

Pankina recognises that immigration policies and guidance are no longer simply what their name implies. They have now acquired a status akin to law. The constitution does not permit the executive to formulate law without parliamentary approval. Thus the secretary of state cannot lawfully reserve to itself the power to add or modify the Immigration Rules or policies.

The points based system guidance, which supplements the Immigration Rules, is therefore unconstitutional, void ab initio. Furthermore, given that the Immigration Rules have acquired a status akin to law, they must be interpreted in a way which is compatible with article 8.

The main practical outcome of the Pankina decision is that it reintroduces common sense in decision making in PBS cases. Policy guidance remains just that '“ guidance '“ to be applied 'without rigidity and to be used and adapted in the interests of fairness and good sense'.