The immigration rules have for a long time recognised that, subject to proper controls, migrant individuals can be an asset to this country . The points-based system (PBS) is a United Kingdom (UK) immigration route for migrants from outside the European Economic Area (EEA) to come to work, study or train in the UK2. This system separates applicants into 5 different tiers in order to be eligible for a visa in any of these tiers they must also pass a points-based assessment3. The following will cover Tier 1 migrants and how Rule 257V of the immigration act explains that tier 1 migrants are a class created to encourage international students who have studied in the UK to stay on and do skilled or highly skilled work”4. This becomes relevant in Secretary of State for the Home department (SSHD) v Pankina5.
Anastasia Pankina and other applicants in this case were graduate students of a UK tertiary institution who wished to remain and work in the UK under tier 1 of the PBS of immigration control which was introduced in 2008 after they began their studies and these rules made it harder to stay6. Previously under the Immigration rules an applicant under tier 1 of the PBS £800 in their bank account and provide documents such as bank statements as proof7.
The main legal issues of this case arise where the PBS was introduced in February 2006 to assesses a migrant’s eligibility to remain in the UK8. This was then amended by HC 607 [June 2008] which was operative at the time the applicants wanted leave to remain9. Under rule 245Z applicants had requirements to meet such as a minimum of 10 points, “a level of funds” and had to show “the specified documents”10. The level of funds was £800 which was equal to 10 points according to the table11. The “specific documents” refer to “documents specified by the Secretary of State in the Points Based System Policy Guidance as being specified documents for the route under which the applicant is applying”, if the applicants did not meet these requirements, their application failed12.
According to the policy guidance, the specified documents meant ‘personal bank or building society statements covering the three-month period immediately before the application” and “sufficient funds present in the account (the balance must always be at least £800)”13. Later in November 2008 the provision changed under specified document to “applicants… must have at least £800 of personal savings which must have been held for at least three months prior to the date of application”14.
This change for the applicants went beyond simply proving eligibility to requiring a further criteria that was not part of the immigration rules15. This meant all but one applicant who were qualified for leave to remain did not. The applicants bank account showed £800 but not for three unbroken months16.
There was an objection to use the policy guidance to establish the three-month hurdle as it did not form part of the rules so laid17. The question is whether being so, if it was of any legal effect’18. The court decided the questions to answer were;
“(1) Can the immigration rules lawfully incorporate provisions set out in another document which
(a) has not itself been laid before Parliament
(b) is not itself a rule of law but a departmental policy
(c) is able to be altered after the rule has been laid before Parliament?19”
To answer B and C, a policy is not considered a rule as it must be applied by law without harshness but used in interests of fairness20. With regards to Pankina, this would ask the SSHD whether the smallest dip below £800 within the three-month period mattered21. This then means attention must be given to ‘the object of policy’ which is to measure the ‘imprecise rule of thumb’, whether the applicants can support themselves without aid from public funds22. If the ‘object’ was met, the law could demand the policy to be applied with some flexibility for the applicant or at least give some consideration23. However, if the requirement is considered a rule and “and it is the Home Secretary’s case that by incorporation it becomes a rule” therefore there is no discretion and no judgment to be exercised24.
It becomes evident that the three-month criteria was not a rule, the only important rule in Appendix C was that there should be £800 at the time of the application – One appellant (Ms Malekia) had below £80025. If the answer to the previous was yes, the following would need to be answered; “2
(a) are the facts to be tested as at the date of the decision or of the appeal?
(b) at whatever point the facts are to be tested, is the policy to be applied as a policy or as a rule?
(c) in applying it, does [European Convention of Human Rights} ECHR art.8 have any application?
(d) If not, does art.8 have any independent application?”26
To answer question 2(a) the court considered what date must be complied with whether the date the applicant applied for Tier 1 or the date of the appeal27. For some of the applicants the £800 was not continuously in their bank account for three months before their applications but had the funds when the appeal began28.
With regards to 2(b) Lord Sedley stated “again on the assumption that incorporation of criteria derived from policy is permissible, it seems to me that Ms [Lisa] Giovannetti (Counsel for the Home Secretary) must be right in her submission, that a policy criterion incorporated into the rules acquires, by a kind of osmosis, the character of a rule. I would add that this is in my opinion yet another reason why such incorporation ought not to be permissible”29.
In terms of the question regarding article 8 of the ECHR and how this affects tier 1 claims, initially the home secretary and tribunal would give consideration depending on what family and private life the applicant had established in the UK30. One applicant [Irfan Ali] succeeded in this with LJ Morgan on Article 8. However, in Ms Giovanetti’s submission she argues the rules should be the sole test of eligibility and article 8 should not be taken into consideration when looking at the test31. The home office stated ‘the rules are black letter law” indicating if the SSHD had not given herself a margin of discretion in relation to the applicants, would we even have had to look at Art.8?32 In s.6 (1) of the Human Rights act 1998, “It is unlawful for a public authority to act in a way which is incompatible with a Convention right”33. In essence, when the home secretary exercises her powers she must show consideration to the applicants private and family life under the convention, the quality of the relationship and implications for the applicant in her decision34.
For Article 8 to have independent application Lord Sedley stated if the rules of the immigration Act 1971 says one thing and the Human Rights act says another, the court must conform to S.6 of the Human Rights Act, this is because under s.3, the courts are required to interpret and give effect to statutes in a way that is compatible with convention rights as much as they possibly can35.
Out of the 6 appeals, LJ Rimer and LJ Sullivan agree that Ms Pankina’s case should have received an appeal as she and the other applicants had the required documents proving they had £800 in their bank accounts at the time of their application therefore doing what was lawfully required of them and secured their 10 points to succeed on appeal and there was no need to consider article 8 claims36. In Ms Malekia’s case she failed to provide suitable evidence of the £800 in her bank account at the time of the application or at any relevant time within the 3 months which could not help her37. She had an Article 8 claim remaining which was then excluded as it made no part of the appeal before the court in the reconsideration made by SIJ Storey and SIJ Perkins38.
IJ Ross concluded his determination with consideration on this issue, he was sympathetic to Ms Malekia who was a qualified nurse with no other relative here than her cousin. Her mother lived in Tanzania and essentially had no private life here39. He then considered whether the impact of her removal would be sufficient to engage article 8 but concluded it was not40.
Ms Malekia’s private life was considered and her family life aspect was not for Article 8 as it was not sufficient to outweigh the requirements of immigration control41. IJ continues “If I thought that an art 8 claim could succeed in Ms Malekia’s case I would want to know whether the Home Secretary was prepared to reconsider the claim; but I see no prospect of its success and would therefore dismiss Ms Malekia’s appeal”42.
Lord Sedley went on to quote Lord Parker in The Zamora and stated, “the idea that the king in council, or indeed any branch of the executive, has power to prescribe or alter the law to be administered by the courts of law in this country is out of harmony with the principles of our Constitution”43.
In conclusion, the PBS is a prescriptive system and in the case of the applicants difficult to understand and it has an inflexible, box ticking approach. Factors that control this system can often discourage applicants to the UK and often can be considered unfair when that was the aim, however, the UK does benefit as they are able to admit those that positively benefit the country among other aspects.