Tier 1 notes and commentary

 

Let's kick this page off with HC1888, new immigration rules that were laid before Parliament on 15 March 2012 and came into force on 6 April 2012 (and 14 June 2012)...

 

  • An annual limit of 1,000 for Tier 1 Exceptional Talent
  • Closure of the Tier 1 Post Study Work programme
  • Creation of a new programme, the Tier 1 Graduate Entrepreneur
  • Changes to the Tier 1 Entrepreneur programme to accommodate Entrepreneurial Teams

A clarification that Tier 1 Exceptional Talent and Tier 1 Graduate Entrepreneur applications are not straight-forward (i.e., cannot be submitted in person)

The material below is preserved here for archiving and reference purposes

NOTES

Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 (23 June 2010)
http://www.bailii.org/ew/cases/EWCA/Civ/2010/719.html

A provision that reflects a substantive criterion for eligibility for admission or leave to remain, as opposed to a criterion as to how a particular requirement is proved must be subject of a process that involves true parliamentary scrutiny (in the case of a statement of changes the negative resolution procedure).

 

  1. But the operation of the rules qua rules is one thing; what they contain as a matter of law is another. In my judgment the statutory recognition of rules which are to have the character and, on appeal, the force of law requires such rules to be certain. That does not shut out extraneous forms of evidence of compliance, so long as these are themselves specified, but it does in my judgment shut out criteria affecting individuals' status and entitlements which – coming back now to the questions in paragraph 23 above - (a) have not themselves been tendered for parliamentary scrutiny, and (c) even if ascertainable at that point of time, may be changed without fresh scrutiny. As to (b), while the fact that the criterion absorbed into the rules comes from a policy document makes nonsense of the notion of policy, this is not critical: the vice would be the same if the reference in the rules were to a categorical criterion in some external but impermanent or undetermined source.

 

  1. Such potential anomalies are going to be an inevitable by-product of this kind of hybrid provision which conforms to no previously understood model. But the law, faced with it, cannot simply abandon a constitutional principle which for four centuries has stood as a pillar of the separation of powers in what is today a democracy under the rule of law. The answer has to be that ministers are to be expected to do what is required of them: Parliament will expect the Home Secretary to lay before it any rules by which he or she proposes to manage immigration; the courts will expect such rules, like any other source of law, to be those and only those which have Parliament's approval; and appellate tribunals will expect to find in the rules the certainty which rules must have if they are to function as law. If for some reason this model breaks down, the courts or the legislature will have to decide how to fix it.

 

  1. Although argument has been directed to large issues of principle arising out of the phraseology of the legislation, the answer has in my judgment to be found in the provisions themselves. 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.

 

  1. 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.

 

  1. 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.

English UK Ltd, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin) (09 July 2010)
http://www.bailii.org/ew/cases/EWHC/Admin/2010/1726.html

Provision ‘static’ not ‘ambulatory’ therefore Parliament cannot have intended that a material change to the minimum educational requirements, of would be students, which was in the extant guidance when the rule was formulated should be changed without full parliamentary scrutiny.

 

  1. The Court of Appeal held that the revised criterion could not be put in place by virtue of the process of issuing guidance. The ratio of the decision appears to me to be that a provision that reflects a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involves a true Parliamentary scrutiny: see paragraphs 6, 22 and 33 of the judgment. The statutory foundation for such a conclusion is section 3(2) of the Act.
  2. It would follow from this that, if a change to current practice (even if reflecting the requirement of a rule) did not involve any alteration of a substantive criterion for admission or for leave to remain, there would be no objection to the change being effected in some form of extrinsic guidance.
  1. All these features have led me to the conclusion that, whatever Parliament may have intended by the phraseology of rule 120(a), it cannot be taken to have intended that a material change to the minimum educational attainments of would-be students that was in the extant guidance when the rule was formulated should be changed without the full Parliamentary scrutiny afforded by the negative resolution procedure.
  2. In one sense, this is no more than applying in this context the approach adopted by the Court of Appeal in Pankina and supported in large measure by Bapio. For my part, I am unpersuaded that the distinction Mr Sheldon seeks to make between that case (where there was no reference to UKBA guidance in the original rule) and the present case (where such reference was made) can legitimately be drawn. I am acutely conscious that Parliament decides how it deals with these matters and it is not for the court to intervene. However, it is the court's task to decide if the end result of a process is in accordance with the law: see paragraph 25 of the judgment in Pankina. A material or substantive change in the administration of immigration control is, by virtue of section 3(2), to be placed before Parliament for consideration pursuant to the negative resolution procedure. There is nothing wrong with an immigration rule that refers to the use of guidance provided that the guidance is not then used to change in a material way the effect of the rule or the effect of extrinsic guidance available at the time of its promulgation. To that extent, I do not accept Mr Sheldon's contention that the logical consequence of the submissions made on behalf of the Claimant is that rule 120(a) is ultra vires section 3(2). All that would be unlawful would be the making of a material change in immigration policy pursuant to guidance permitted by the rule. If the rule expressly permitted such guidance to be issued "from time to time", different considerations may arise because Parliament could arguably be said to have approved a course that left open the possibility of making a material change by guidance. Nonetheless, even that course could founder in the light of the express terms of section 3(2). However, that issue does not fall to be determined in this case.
  3. For those reasons, I consider that I am bound, by virtue of the reasoning in Pankina, to declare as unlawful the changed minimum educational requirements of those applying to study English in the UK. Since no challenge is made to any other aspect of the changes made, any declaration of invalidity (if that is considered the appropriate relief) should be confined to that feature of the changes.

FA and AA (PBS effect of Pankina) Nigeria [2010] UKUT 304 (IAC) (25 August 2010)
http://www.bailii.org/uk/cases/UKUT/IAC/2010/00304_ukut_iac_2010_fa_nigeria.html

The effect of the decision of the Court of Appeal in Pankina is not limited to the ‘three-month rule’ in relation to evidence of funds. Policy Guidance does not have the status of Immigration Rules for the purposes of immigration appeals.

AM and SS (PBS Tier 1 joint accounts) Pakistan [2010] UKUT 169 (IAC) (02 June 2010) http://www.bailii.org/uk/cases/UKUT/IAC/2010/00169_ukut_iac_2010_am_ss_pakistan.html

A joint account bearing the name of the applicant meets the relevant evidential requirements of paras 93-96 of the Tier 1 Guidance, so further evidence of the ownership of the funds in the account is not required.

BN (Article 8 Post Study Work) Kenya [2010] UKUT 162 (IAC) (02 June 2010)
http://www.bailii.org/uk/cases/UKUT/IAC/2010/00162_ukut_iac_2010_bn_kenya.html

  1. In the context of a Post Study Work appeal based on the right to respect for private life, the balancing of all relevant factors of significance cannot be confined to consideration of the appellant’s ability to self-maintain and the potential to misunderstand requirements of the Immigration Rules and corresponding Policy Guidance.

 

  1. Sullivan J’s observations in R (on the application of Forrester) v SSHD [2008] EWHC 2307 (Admin) were not meant to enunciate a general proposition about Immigration Rules that are in non-discretionary form or to imply a view that any policy fitting this description could have no public interest weighting.

 

The decision in OA (Nigeria) [2008] EWCA Civ 82 was fact-sensitive and in any event affords little assistance when considering the case of a person who has applied, not to complete studies, but to switch to employment, in circumstances where she could only expect to be able to do so if she met the requirements of the Immigration Rules.

 CS (Tier 1 home regulator) United States of America [2010] UKUT 163 (IAC) (02 June 2010)
 http://www.bailii.org/uk/cases/UKUT/IAC/2010/00163_ukut_iac_2010_cs_usa.html

 The reference to home regulator in paragraph 96(iv) of the Tier 1 Guidance with respect to overseas financial institutions refers to the need for the institution to be regulated and not to the identity of the institution that provides the information about the account. MM (Tier 1PSW; Art 8; “private life”) Zimbabwe [2009] UKAIT 00037 at [12] corrected on this point.

OK (paragraph 245Z(e) transitional provisions Maintenance (Funds)) Ukraine [2010] UKUT 166 (IAC) (02 June 2010)
http://www.bailii.org/uk/cases/UKUT/IAC/2010/00166_ukut_iac_2010_ok_ukraine.html

1.     The Respondent’s transitional provisions in relation to Maintenance (Funds) requirements, ending on 31 October 2008, are not to be confused or conflated with the transitional provisions for Attributes and English Language for those remaining on the IGS/SEGS/FT:WISS schemes after 30 June 2008

2.     While an applicant may be entitled to the benefit of both transitional provisions where an application for Tier 1 (Post-Study Work) was made before 31 October 2008, applicants wishing to transfer from IGS/SEGS/FT:WISS to Tier 1 (Post-Study Work) whose applications were made after that date will need to meet the Maintenance (Funds) requirement in the normal way.

US and MV (PBS applicants from same family) Malaysia [2010] UKUT 167 (IAC) (02 June 2010)
http://www.bailii.org/uk/cases/UKUT/IAC/2010/00167_ukut_iac_2010_us_mv_malaysia.html

There is no proper basis for the Secretary of State to treat a valid application as invalidated by the presence in the same envelope of an invalid application by a member of the same family.

QI (para 245ZX(I) considered) Pakistan [2010] UKUT 217 (IAC) (06 July 2010)
http://www.bailii.org/uk/cases/UKUT/IAC/2010/IA237022009.html

The expression “current … leave to remain” in para 245ZX(I) of the Statement of Changes in the Immigration Rules HC 395 as amended must refer to an applicant’s/appellant’s substantive period of limited leave. Were it to denote extended leave under s.3C of the Immigration Act 1971 (“s.3C leave”), the expression would be meaningless.  Further, at the time the applicant made his application, his leave could only have been his substantive leave; any s.3C leave could not come into being until after he received a decision. That is because s.3C leave does not arise until “the leave expires without the application for variation having been decided’ (s.3C(c)).

CDS (PBS "available" Article 8) Brazil [2010] UKUT 305 (IAC) (25 August 2010)
 http://www.bailii.org/uk/cases/UKUT/IAC/2010/00305_ukut_iac_2010_cds_brazil.html

1.     Funds are “available” to a claimant at the material time if they belong to a third party but that party is shown to be willing to deploy them to support the claimant for the purpose contemplated.

2.     Article 8 does not give an Immigration Judge a free-standing liberty to depart from the Immigration Rules, and it is unlikely that a person will be able to show an article 8 right by coming to the UK for temporary purposes.  But a person who is admitted to follow a course that has not yet ended may build up a private life that deserves respect, and the public interest in removal before the end of the course may be reduced where there are ample financial resources available.

 

 

 

Reviewed 9 May 2012

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