UKBA Set Back on What is Law

Since the implementation of the points-based system two years ago, UKBA has relied on two mechanisms for building the structure of this system: immigration rules (acts of Parliament and statutory instruments) and policy guidance (publications appearing from time-to-time on the UKBA website that expand upon the legislative rules). UKBA's position has been that both defined the mandatory requirements of the points-based system. This position was rejected last month by the Court of Appeal in Pankina v SSHD, [2010] EWCA Civ 719.

This collection of cases raised a broad principle of constitutional law in the context of a specific criterion - the maintenance requirement in the Tier 1(Post Study Work) category. The maintenance requirement, common to all points-based applications, means applicants must demonstrate that they have a specified level of funds to support themselves. Appendix C of the relevant immigration rules states that a Tier 1 (PSW) applicant must have £800 at the time of application. The relevant UKBA policy guidance requires that an applicant demonstrate possession of this sum of money on each day of the three months preceding the application. The Court of Appeal robustly rejected UKBA's position that its policy guidance was law.

"A policy is precisely not a rule: it is required by law to be applied without rigidity, and to be used and adapted in the interests of fairness and good sense....

[The fact that the guidance can be changed by UKBA at any time] means that a discrete element of the rules is placed beyond parliamentary scrutiny and left to the unfettered judgment of the rule-maker.…

The three-month criterion formed no part of the rules applicable to these cases. The only relevant criterion was the requirement in Appendix C [of the immigration rules] that they should have £800 at the time of the application."

The principle established in this decision is not limited to the maintenance requirement. Unless overturned by the Supreme Court, this decision applies to all areas of the points-based system where UKBA's policy guidance imposes requirements beyond those in the immigration rules. In that case, UKBA will need to introduce flexibility and fairness into a system that has been characterised too often by rigidity and an absence of common sense.