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The tribunal has allowed two appeals on the basis that Pankina does not only apply to the three month rule and that all an applicant need do is comply with the requirements of the Immigration Rules themselves. See FA and AA (PBS effect of Pankina) Nigeria [2010] UKUT 304 (IAC) in relation to the scope and effect of Pankina. The determination is that of the Deputy President, Mr Ockelton, and El Presidente Blake and Mr Allen were also on the panel. Quite high powered, then.
In a related case, CDS (PBS “available” Article 8) Brazil [2010] UKUT 305 (IAC), the same configuration of judges on the same day with the same Presenting Officer (not a fun day out for Mr Avery?) held that the only requirement on maintenance for a student at the relevant time was that the £800 of funds be ‘available’ to the applicant. Funds held by a third party sponsor for this purpose are acceptable, following Mahad.
Two very sensible and welcome decisions.
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2 responses
Pankina doesn’t appear to be limited to PBS policy only.
What of 320(11)? Does the ECO guidance in RFL07 have any standing?
What was special about the PBS guidance as opposed to normal IDI, API, ECG and so on guidance is that the Immigration Rules purported to give the PBS guidance statutory-like force by specifically incorporating and referring to them. Pankina says the Rules cannot do this. While 320(11) does refer to guidance, I don’t think it purports to incorporate that guidance into the Rules. Which is a good job, because RFL07 is nonsense – about a third of the offending behaviours are automatically committed by any overstayer, and it says elsewhere that overstaying is not sufficient to attract 320(11) refusal without more. I think Pankina is limited to any Immigration Rule that purports to incorporate into the Rules a document or criteria that are not themselves in the Rules.