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Pankina upheld by Supreme Court


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[UPDATE: for more analysis see new post The Case of the Lost Prerogative]

This is huge news in immigration law: the Supreme Court has dismissed the Home Office appeal in Alvi [2012] UKSC 33, upholding the earlier Court of Appeal judgment in Pankina. The press summary can be found here and the full judgment here [here for BAILII version]. This means that substantive requirements in immigration control must be laid before Parliament in the form of proper Immigration Rules under s.3(2) of the Immigration Act 1971. Attempting to import or incorporate requirements in documents such as ‘policy guidance’ outside the proper rules is unlawful.

This will have huge implications for the awful new immigration rules on family members. At a stroke it almost certainly renders all of the attempts to specify required documents to prove income and so on unlawful, rendering the Appendix FM largely ineffective. Looks like the Home Office lawyers have gambled and lost on this one.

The claimant appeal in Munir [2012] UKSC 32 was, however, dismissed. This concerned whether concessions and policies outside the rules needed to be formally incorporated into the rules. The press summary is here and the full judgment is here [here for BAILII version].

More to follow.

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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.


9 Responses

    1. I think some senior civil servants and their legal advisers might be saying the same thing…

  1. Wish to litigate about PBS refusal(maintanance)- won on appeal, on now unlawful sneeky rules. Will HO refund?

  2. It’s on BBC (http://www.bbc.co.uk/news/uk-18888241)

    They rolled out the classic Home Office Spokesperson, who has clasically commented that “Today’s judgment supports our ongoing work to simplify the immigration system and minimise legal challenge in future.”.

    If Appendix FM is part of their plan to simplify the system we’re all in for a world of hurt!

    1. Love it. How on earth does this judgment HELP them? They may legislate to get round it, but that is hardly the same as the judgment helping.

  3. “…rendering the Appendix FM largely ineffective.”

    Does this mean that an applicant who applies (or applied anytime previously) before the parliament acts according to the case will be able to succeed on appeal essentially without meeting most or any of the rules? No English test necessary, for example?

  4. http://www.guardian.co.uk/uk/2012/jul/18/skilled-migrant-ruling-emergency-action

    I am rather surprised that Mrs May’s emergency action does not seem to include getting an army of cheque signers out for tomorrow. There must be a fair number of past applicants who had to resubmit due to minor failings that were hidden deep in the unlawful ‘policy documents’.
    Presumably they will be due refunds – with interest one imagines!
    Does she intend dumping the increasing interest due on the taxpayers or will she and Mr Whitehead be paying the unnecessary extra interest incurred from their own pockets/handbags?

  5. It seems that the big cut and past job into Appendix OS-WHWD is taking a while to accomplish.

    For those unfamiliar with current UKBA indexing standards, it stands for Oh ****, What have we done?