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Lord Justice Jackson in Pokhriyal [2013] EWCA Civ 1568


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The rules governing the PBS are set out in the Immigration Rules and the appendices to those rules. These provisions have now achieved a degree of complexity which even the Byzantine Emperors would have envied.


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Colin Yeo

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


10 Responses

  1. colin, do you give free immigration advice? i am in financial mess and do need help with my immigration issues

  2. One wonders if there is anything left of the Rules which could still allow the system to be called a ‘PBS’. I have evidence of officers refusing application for entry clearance even though applicants have sufficient points and there are no reasons for refusal advanced, supported by judges of the first tier ruling applicants as not deserving of any Human rights even though the British High Commission invites someone into legal process governed by British law (with the opportunity for judicial appeal). Everyone concerned, whether student or visitor, should expect reasonable and lawful treatment from officers who are governed by British law even if they are somewhere like Delhi. Anyone requiring evidence of this can write to me at pete.rainey@btinternet.com

  3. I agree, Peter. It has not been a ‘Points Based System’ for a long time. You can score all the necessary point but because there is a plethora of other requirements, one may find that he has scored all the points but has had his/her application refused on ‘non-points scoring reasons’.

    ‘Points based’ has also been a misnomer even in the early days of the system. For example, a student needs 40 points – 10 points for maintenance and 30 points for having a Confirmation of Acceptance of Studie (CAS).

    But that’s al just another way of saying that the migrant student needs to satisfy the Rules. The concept of ‘points’ becomes superfluous and the Rules could easily be framed as: Limb 1: have enough money and Limb 2: be enrolled on a course of study. The notion of ‘points’ is not necessary as it gives off the impression that the system is somehow based on a fair meritocracy (in the same way that I get points for my Nectar card) when the whole system (as with most systems) is underpinned by arbitrary requirements plucked out of thin air.

    Rant over.

    1. Why is the rant over? Keep going. In the application for Leave to Enter the UK overseas students are invited at the High Commission to engage in a full legal process under UK law, with an appeal procedure, for which they pay. I would say that if such an applicant satisfies the defined tests, such as an adequate IELTS score for English, but is still refused on the basis that their level of English is inadequate, then this is unreasonable behaviour on the part of the UKBA officer, clearly outside the legal powers he has expected to have. The officer is not an expert in English Language assessment, and assuming he does not dispute the authenticity of the student’s certificate, then prejudice has been demonstrated.
      Applicants do not claim to be British, and so do not naturally claim any inheritance of protection from the UK or the EU on which they can otherwise rely, other than those defined in the application and appeal process. UK judges scoff at the concept that students in countries like India can claim that they have had their Human Rights abused. Nevertheless Britain is a signatory to that Convention and as such has responsibilities to which it should adhere.

  4. Furthermore, the process of appeal can only be based on proving ‘racism’ on the part of the interviewing officer. The original spirit of the Points Based System was to counter the charge that decisions of the Entry Clearance Officers, which relied on the opportunity to use their discretion, were arbitrary, biased and often mistaken. It was my experience that judges hearing appeals in Tribunals were happy to reverse those decisions, not finding any evidence that the ECO’s decision was reasonable and therefore lawful. Sadly, the reverse is becoming more true these days. Judges don’t have any problem thinking that decisions such as those described in this blog are reasonable and lawful, even though the Rules are being plainly ignored by the High Commission. We haven’t just gone back to the bad old days, we have gone further back than that because we pretend we have the Points Based System.

  5. Peter, what we have now is indeed worse than the bad old days, because – in the old days, failed entry clearance applications could appeal against the decision and be dealt with by an immigration judge, i.e. the judiciary body. In contrast, failed entry clearance applicants can only ‘request for Administrative Review’, which means another entry clearance manager conducts a ‘peer review’ of his/her colleague’s decision. Administrative Review is a joke because if you look at the figures, officials hardly overturn the initial refusal decision. This effectively denied the failed entry clearance applicants having access to the judicial system in the UK – and we all know what this means.

    PBS is officially dead since the introduction of ‘Genuine Entrepreneur Test’ on 31 Jan 2013. The idea of having the PBS is to eliminate the subjective of visa officials, a practice that had plagued the UK immigration system for so long in the 1990s and 2000s. By having ‘genuine tests’ in so many categories, the Home Office had re-introduced the subjective test.

  6. I think you will find you can appeal. See the link at the bottom of this post.
    It’s certainly the case that you will need to go through an Administrative Review first, and I suspect you are quite right: the chances of winning that are very slim. But one must go through it. The truth is that we are not a sovereign country anymore; we are a part of the EU and subject to the EU courts and legislation. It’s true that the UK legislators would love to end appeals, and cheerfully would give you the impression that they were over. In fact one can appeal online on the basis of Human Rights, chiefly the article there that covers decisions and racial prejudice. At the moment appeals conducted at the First Tier attract opinions from judges that 1) Officers giving patently unreasonable decisions are not acting in a prejudiced manner, and 2) Officers who ask for overlook and disregard the Points that the applicant has obtained and ask for more evidence than is legally required (for example, telling applicants their English isn’t good enough despite them achieving a satisfactory score) are held to be merely doing their jobs. If anyone wants evidence of this email me at pete.rainey@btinternet.com Meanwhile let’s see what the second tier judge thinks later.

    see https://immigrationappealsonline.justice.gov.uk/IACFees/

    1. “The truth is that we are not a sovereign country anymore; we are a part of the EU and subject to the EU courts and legislation.”

      So true, but something lost on Cameron and his 75,000 net migration cap, and sadly lost on the vast majority of UK citizens. I have tried saying something similar on this blog before; substance over form anyone?

  7. Perhaps David Cameron might argue that we have been rather naïve about the EU and its policy about Immigration. After all, we have surely proportionally a much bigger immigration problem than other EU problems because on the whole we have a much more tolerant society. I don’t see the immigrants lining up for France, Germany and others I could name (unless it’s a planned stop on the way to the UK). It’s all very well for our EU partners to talk about Human Rights, but they don’t have too much to lose in signing up for it. It’s all political dressing. Closely allied is confidence in the economies. Britain is on the up, our ‘sloppy’ EU partners (that’s putting it kindly) Greece, Spain and those joining from eastern Europe have been ‘down’ so long it must look like ‘up’ to them. In other words, Britain is a more attractive place to immigrants than most. Nevertheless, why not just come out and say so? Is it progress for the UK to signup for Human Rights, create a PBS, then create a situation whereby our High Commissions are obviously acting with some secret agenda, outside the law?