Pankina judgment changes the rules regarding maintenance requirements for the point-based system.

A recent judgment from the case known as the Pankina case has raised awareness of the time period for which applicants had to show as having sufficient funds for themselves and any dependents. The previous policy said that "Applicants … must have atleast £800 of personal savings which must have been held for at least three months prior to the date of application."

This requirement meant that the balance should not fall below the minimum (£800) at all during the three months; however this was proving difficult for applicants as this requirement meant showing a total balance of approximately £3,000 to £5,000 continuously for a period of three months. Lord Justice Sedley stated “it is moreover at this hurdle alone that all but one of the applicants, who are otherwise qualified for leave to remain, fell. Their bank statements showed the requisite sums of £800, but not for three unbroken months preceding their applications.” In other words this meant that applicants had the £800 required amount however not for a continuous period of three months and thus their applications were rejected.

Joint Council for the Welfare of Immigrants, R (on the application of) v Secretary of State for the Home Department [2010]

In this case, two claims for judicial review were brought. Firstly, by the Joint Council for the Welfare of Immigrants (JCWI) to challenge the interim limits on the number of applicants for entry clearance that can be issued with a Tier 1 visa General visa under the points based system. Secondly, the English Community Care Association (ECCA) brought a challenge to the number of certificates of sponsorship that could be issued under the Tier 2 general category.

The court looked at the background to the points based system. They confirmed that the PBS was introduced in 2008 consolidating roughly 80 different immigration routes into a five tier system.  Tier 1 is for highly skilled workers from outside the EEA and it is divided into four sub categories – general, post study work, entrepreneur and investor. In respect of Tier 1 general, prior to 19^th July 2010, an applicant was required to score 95 points to be eligible. After the interim measures were imposed, applicants were required to score 100 points.

Tier 2 is for skilled workers whereby UK employers can sponsor applicants for posts which cannot be filled by EEA or settled workers.  Whilst there is a number of Tier 2 sub categories (such as intra company transfer) this case only deals with Tier 2 general. Unlike Tier 1 applicants, Tier 2 general applicants need a certificate of sponsorship (herein after referred to as COS). The employer is required to obtain a licence from the UK border agency. If granted, the Secretary of State will allocate a certain number of COS’s to them. Applicants must score 70 points, 50 of which are for attributes. COS’s may be issued where

a)     The job is one listed on the shortage occupation list

b)     There is no other suitable EEA or settled candidate

c)      The applicant had already worked 6 months with a sponsor under another immigration category (post study work)

The ECCA were concerned with the impact on the interim limits on Tier 2. Prior to 19^th June 2010 there was no limit as to the number of Tier 1 applicants or overall number of COS’s issued under the Tier 2 category. The Government adopted their manifesto commitments to reduce the number of migrants in the UK by limiting the amount of applications that could be made under these categories.

The claimants brought their claims on the basis of the judgement in the case of Pankina along with other grounds including irrationality.

Conclusions

The court in this case concluded that the case would be allowed on certain grounds whilst dismissed on others. The decision of Pankina was reiterated and the court confirmed that they are bound by Pankina. The Secretary of State is required to lay any changes before Parliament so that they can be scrutinized as required by the Immigration Act 1971 for a 40 day period and to give them a chance to express their disapproval of the changes if any. Therefore, if material is to be incorporated into the immigration rules, these must be laid before Parliament in accordance with the rules and procedure. The imposition of interim limits on Tier 1 and Tier 2 were therefore deemed unlawful.

January 2011