The Court of Appeal Pronounces on the Immigration Rules

27 July, 2010

1 The Court of Appeal on 23 June 2010 delivered its judgement in the case of Pankina v. Secretary of State for the Home Department ^[1] EWCA Civ. 719. The case arose from a technical question of compliance with particular requirements relating to the issue of work permits under the points based system but the Court in settling the matter clarified the status of the Immigration Rules.

2 Appendix C to the Immigration Rules imposes maintenance requirements for persons seeking entry clearance or leave to remain as Tier 1 Migrants in the Highly Skilled category. In order to earn 10 points applicants for entry clearance must show funds of £2800 and applicants for leave to remain must show funds of £800. The Rule imposing this requirement was promulgated as HC 321 in February 2008. Subsequently a guidance policy was issued, stating in the case of those applying for leave to remain that bank or building society statements must show that there had at all times been at least £800 in the account. A further Rule, HC 607, was made in June 2008. As a result, Appendix C now states that the applicant must have the funds specified and must also have had those funds for a period of time set out in guidance as to the documents, bank statements etc., which the applicant is required to produce. In November 2008 an amended version of the guidance policy was issued, changing the requirement that there must at all times have been at least £800 in the account to a statement that “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.” ^[2]

3 The appellants in the case had applied for leave to remain and were able to show that they had the £800 required, but not for the three unbroken months preceding the date of application. For this reason their applications were refused and their appeals against refusal to the Asylum and Immigration Tribunal were dismissed. They now appealed to the Court of Appeal, which allowed their appeals on the ground that the three months requirement had not been written into the Immigration Rules and did not therefore have the force of law.

4 At first glance the Court of Appeal’s reasons for allowing the appeals may appear trivial, but they are important, as explained in the opening paragraph of Lord Justice Sedley’s judgment:

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.

5 The Court’s judgment deals at some length with the legal status of the Immigration Rules, which are made under section 3(2) of the Immigration Act 1971. That subsection requires the Home Secretary to lay before Parliament “statements of the rules, or of any changes to the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances…” One looks to the Immigration Rules for detailed provisions as to the categories of persons who may be granted leave to enter or remain, e.g. as spouses, students, working holidaymakers or those seeking to take up employment in the United Kingdom and the conditions to be met by such persons. There was for long some uncertainty as to whether the Rules were to be regarded as law or simply as a statement of policy, or of detailed guidance to immigration officers and others, but the view now affirmed by the Court of Appeal is that they are part of the law. The Court invoked considerable legal authority in coming to this conclusion and referred in particular to two provisions of the Nationality, Immigration and Asylum Act 2002, showing that Parliament clearly intended to regard the Rules as being part of the law. Section 84(1) sets out the grounds on which an appeal may be brought against an immigration decision, including the ground “that the decision is not in accordance with immigration rules". Section 86(3) states that the Tribunal hearing an appeal must allow the appeal if it thinks that the decision against which the appeal is brought “was not in accordance with the law (including immigration rules)”.

6 That conclusion having been reached, it follows that any changes to the law must be made in proper legal fashion and not by administrative fiat. This has always been an important constitutional principle and part of the rule of law. No doubt there will be criticism of the decision on the ground that the appeals were allowed on a technicality. The answer to that is that it would have been very easy for the Home Office to amend the Immigration Rules to incorporate the requirement that the appellants should show that the £800 had been in their accounts for at least three months before the date of application for leave to remain, rather than relying on a policy guidance statement outside the rules. No doubt the Home Office, chastened by this judgement, will ensure that a similar situation is not allowed to recur. There has been no suggestion that it has it in mind to appeal the decision to the Supreme Court.

Harry Mitchell QC
Honorary Legal Adviser
Migration Watch