A new case from the High Court offers an interpretation of Pankina that might give hope to work permit holders applying for Indefinite Leave to Remain (ILR). Singh J in R (Ahmed) v Secretary of State for the Home Department [2011] EWHC 2855 (Admin) clarifies the application of Pankina and explains the extent of the Home Secretary’s ability to makes changes to the substantive requirements to the Immigration Rules through the use of guidance.

The language of the authorities on Pankina, which include English UK and Joint Council for the Welfare of Immigrants, suggests that minor requirements can be made in guidance, but substantive ones cannot. Ahmed clarifies that this is really a distinction between “substantive requirements” and the “means of proof” for those requirements.

At paragraph 41, Singh J, explains the principle from Pankina:

…the distinction which both as a matter of principle seems sensible and is supported by the authorities is that between:

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(i) the substantive requirements which an applicant has to meet in order to obtain leave to enter or leave to remain under the immigration rules; and

(ii) the means of proving such eligibility:

see paragraph 6 of Sedley LJ’s judgment in Pankina itself.

The former can only be changed by amending the immigration rules and in accordance with the negative resolution procedure. The latter need not be and can properly be the subject of policy guidance. (Emphasis added)

When the Immigration Rules were changed in April (section 5, clause 134 (iv)) they said that new salary requirements would apply to people on work permits looking to apply for ILR. People who were granted their work permit on one salary requirement will now have to seek a wage increase or find new work. Another Free Movement blog has pointed this problem out, and said that the landmark decision of Odelola normally precludes a challenge based on legitimate expectation. But Ahmed might offer a way of challenging this without challenging the precedent in Odelola.

The rate required was not set in the Immigration Rules, it was set in the Tier 2 Codes of Practice. It is open to argue that the amount of money needed to become eligible to apply is not a “means of proof” but a “substantive requirement”. And therefore by not placing it before Parliament the Home Secretary might have fallen foul of the “constitutional problem” from Pankina.

The other change made in section 5, clause 134 (iv) of the Immigration Rules was that the “employer certifies” the correct rate is being paid. There is a clear distinction here between the substantive requirement of the wage rate, and the means of proof from the employer. This distinction is only made clearer with the change introduced at the end of October that applicants must now supply wage slips.

The wage rate is a “requirement which an applicant has to meet”, whilst the certification of that is a “means of proof.” This could leave the wage increase from April vulnerable to a Judicial Review (JR), similar to Ahmed.

The authorities show a clear line of reasoning about substantive changes being made in guidance. Alvi says, “making substantive changes outside the scope of the rules brings in Pankina.” And Ahmed said that rules can rely on guidance for “comprehension” but cannot be “supplemented” by “extraneous sources”.

Wage rates are not part of comprehending the rules, but an addition to them; the current situation allows the Home Secretary to make large changes to the qualifications an applicant needs to meet, without having them approved by Parliament.

If the court does not accept that the wage rates are “substantive requirements”, then an alternative argument might be made on the basis of fairness.

Another aspect of Pankina that Ahmed highlights is the way policy is applied. At paragraph 28, Sedley LJ says, “A policy is precisely not a rule: it is required by law to be applied without rigidity, and to be used and adapted in the interests of fairness and good sense.” The benefit the Home Secretary gets from using policy is tempered by the obligation to be flexible and fair.

This means that if the wage increase is held to be policy and therefore not part of the Pankina “constitutional problem”, it can be challenged on a case-by-case basis on the grounds of fair application.

In Pankina that meant not refusing an application because for a short period the requirement to maintain an £800 bank balance had not been met. In Ahmed there is a strong implication that had the CAS requirement not been a legitimate rule it too would have been subject to this fairness requirement.

Fairness has been gaining momentum in immigration decisions, and seems to be the intellectual child of the european idea of proportionality. As Sedley LJ commented, policy (by definition) ought to be applied less rigidly than rules. Not doing so could lead to ECHR claims; but it might be possible, on the basis of the accumulation of dicta in recent cases, to make an alternative argument stating that rigid application of policy is now out of step with the more general “fairness” requirement.

There is dicta from Lord Rodgers in Wilson to the effect that new laws will always affect people’s rights, this is not retroactive, but that sudden changes may well be unfair. Taken with the principle in Pankina and the suggestion in Ahmed that it would have applied under different circumstances, it is arguable that this is becoming something the courts are more willing to consider in a wider set of circumstances than before.

Indeed, the recent case from the Upper Tribunal of Alam showed a real willingness to apply this doctrine of fairness. Although the principle of fairness is not a means by which the courts can examine or avoid the merits of legislation, an order made under Nationality, Immigration and Asylum Act 2002 was subject to this assessment.

The Upper Tribunal held that when assessing the strength of the Home Secretary’s position in maintaining the Immigration Rules, fairness was an integral part of proportionality, which feeds into Article 8 arguments of a right to a private life, which may allow an applicant to circumvent ineligibility under the Immigration Rules where a strong private life is demonstrable. Alam left this point open.

In Mr Alam’s case he had embarked on an appeal, and then the rules had changed. The Upper Tribunal said that if this change was irrational or not lawful he could have a JR.

It seems that the JR on the ground of irrationality or lawfulness and fairness as part of proportionality can be viewed as two sides of the same coin. Whether it comes via JR or Human Rights, there might be a trend here of the courts seeking to deal with these cases in a more equitable way.

The Free Movement blog is right, Odelola “permits changes to the immigration rules even after an application has been submitted but before it has been decided, as long as there was no express promise not to change the rules.” Like tax law, you might plan your affairs based on one regime, but then find yourself dealing with another one. But an argument on the basis of the constitutional problem in Pankina as interpreted in Ahmed might be a challenge to that for people currently on work permits looking to apply for ILR.

Henry Oliver

(The author writes the Mulberry Finch blog. Mulberry Finch is a firm of immigration solicitors on Holborn.)