The appeal against the Home Office interpretation of the Points Based System has succeeded in the Court of Appeal. Regular readers may remember I went along to and reported on part of the hearing. The case is Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719.

The Court does not strike down the entire PBS system but holds that the only binding and effective part of the PBS rules and guidance are those set out in the Immigration Rules themselves. This is because these are the only provisions that have been properly laid before Parliament in accordance with section 3(2) of the Immigration Act 1971.

In the context of these appeals, which concerned the maintenance aspect of Tier 1 Post Study Work visas, the only requirement was that the applicant held £800 at the time of application, as specified in Appendix C of the Immigration Rules. All the other requirements set out in the guidance, for example on the form of evidence to be presented and the length of time for which the funds had to be held, were merely guidance and do not have the strict force of law ascribe to them by the tribunal in the case of NA and Others [2009] UKAIT 00025.

The Court also held that that tribunal was correct regarding the effect of section 85(4) of the 2002 Act, in that the relevant date is the date of application, not the date of appeal. This is specified in the rule itself:

39… The rule as framed makes it clear that it is to the Home Office that the necessary proof must be submitted. The argument that a fresh opportunity arises on appeal is based on s.85(4) of the 2002 Act, which provides that on such an appeal the tribunal “may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision”. There are many instances of rule-based issues which need to be appraised as they stand at the moment of the appeal hearing, but the question whether at the date of the application the specified funds had been in the applicant’s bank account for three continuous months cannot intelligibly be answered by evidence that they had not, albeit they now have been.

Lastly, the Court takes a notably different approach to the tribunal on human rights issues, making it clear that the tribunal should properly consider the context of the alleged need to maintain immigration control in a particular case:

45. There appears to me, in this situation, to be no escape from the proposition that in exercising her powers, whether within or outside the rules of practice for the time being in force, the Home Secretary must have regard and give effect to applicants’ Convention rights. This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here.

46. That in turn will require consideration of the significance of the criteria by which their eligibility has been gauged and found wanting. It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile. It is another for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant’s ability to continue to live without reliance on public funds. Having £800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1 entry. If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route.

The contrast with BN (Article 8 Post Study Work) Kenya [2010] UKUT 162 (IAC) is very marked. Incidentally, I heard a rumour that Lord Justice Sedley and Dr Storey had been allocated to sit together as a panel in the Upper Tribunal while the former is ‘on tour’.

Where next for the PBS, and what do do at an upcoming appeal hearing? Well, the only strictly binding bits of the system which must be applied rigidly are the bits set out in the Immigration Rules and Appendices. The ‘requirements’ (perhaps ‘suggestions’ is now a better word) set out in the guidance must be interpreted sensibly and flexibly in line with the relevant Immigration Rule and its purpose. If a person dips briefly below the required funds threshold but is otherwise above it, their application should be allowed by UKBA or, failing that, their appeal should be allowed. If an applicant presents bank statements from an online account that do not meet the exact requirements set out in the guidance, a judge needs to assess whether the funds are held and make a judgment, rather than apply a tick box approach. Some of these judgments may well be difficult ones.

I cannot help but note that this is EXACTLY what most immigration judges were doing before the decision in NA and Others. Judges generally like to judge. They do not want to be the discretionless automatons that some of their senior colleagues might prefer.

And what about all the poor buggers who have lost their cases, become overstayers (a criminal offence), lost their jobs, been booted out of their college or university or otherwise had to leave the UK prematurely, sometimes with their partners and children, because of the decision in NA and Others? Well, I can’t imagine anyone will be apologising to them. One of the sort-of saving graces of the PBS is that (very expensive) applications can be made without leave, so they should consider re-applying where they are still eligible.