Pankina is about much more than needing to have £800 for three months
9 June 2010
The Asylum and Immigration Chamber of the Upper Tribunal has issued two important determinations, FA and AA (PBS: effect of Pankina) Nigeria  UKUT 00304 (IAC) and CDS (PBS: "available": Article 8) Brazil  UKUT 00305 (IAC), which provide an overview of the state of the Points Based System in the wake of the Court of Appeal's judgment in Pankina and others v Secretary of State for the Home Department  EWCA Civ 719.
The Appellants in both cases had applied to the United Kingdom Border Agency (UKBA) for leave to remain to continue their studies in the UK. As in all Points Based System cases (apart from those which inevitably involve affluent applicants – i.e. Tier 1 (Investor) Migrants) the Appellants in these cases needed to prove to the United Kingdom Border Agency that they had sufficient funds to support themselves financially.
To do this they relied not exclusively on their own money, but also on funds provided by other people.
The first two Appellants FA & AA are married. FA relied on her husband AA's money. The UKBA (and latterly the Asylum and Immigration Chamber of the First Tier Tribunal) were provided with AA's bank statements. CDS relied on money provided by two sponsors who don't appear to have been related to CDS herself. They said that they would
support CDS during the period for which she hoped to obtain an extension of her stay as student, and provided their bank statements to prove their ability to do so.
All of the Appellants' applications were refused because the Immigration Rules at paragraph 11 of Appendix C dictate:
"Ten points will only be awarded if the funds shown in the table below are available to the applicant and the applicant provides the specified documents to show this".
Of course the "specified documents" were set out in the "Tier 4 (General) Policy Guidance" which at paragraphs 127 to 140 required that apart from "Official Financial Sponsors" any bank statements submitted should be in the applicant's own name or in the name of his or her parents. Applicants couldn't rely either on their spouses' money or on that generously provided by people like CDS's sponsors.
The Upper Tribunal allowed the Appellants' appeals because of the Pankina judgment, which makes it clear that it is only what the Immigration Rules stipulate which amount to criteria for entry to the UK or for leave to remain. So all the Appellants had to show was that the money was "available" – which they had done.
The UKBA's representative is recorded as having said to the Tribunal that Pankina was concerned only with the Policy Guidance's requirement that funds should have been held by applicants for the three month period immediately preceding the application.
This understanding of Pankina is reflected in what some people might unkindly describe as the patch-up job the UKBA has tried to carry out in issuing its statements of changes in the Immigration Rules in July of this year. It is true that the three month requirement is now in the Rules (as well as in the Guidance) but as this case shows there are a mass of other "requirements" which come from the Guidance and not from the Rules.
Rejecting this submission on behalf of the UKBA the Tribunal indicates that it has no doubt whatever that the scope of the judgment in Pankina goes far beyond the narrow issue – the three month stipulation - on which Ms Pankina and the Appellants in that case had been refused leave to remain. It makes clear that the judgment effectively says that if a stipulation isn't in the Immigration Rules it can't provide a lawful basis for the refusal of any application for entry clearance or for leave to remain.
This was enough for the Tribunal to allow everyone's appeals – but in the CDS case the Tribunal went on to consider the question of whether she should also succeed on the basis of her rights protected by Article 8 of the European Convention on Human Rights.
This is striking because in the past (and in its previous incarnation as the Asylum and Immigration Tribunal) the Tribunal has gone out of its way to warn that it would be unlikely that rights protected by Article 8 will be breached by decisions taken under the Points Based System in relation both to students and to graduates applying for leave to remain as Tier 1 (General) Students.
Even though the issue wasn't even raised by the Appellants in the case the Tribunal stated in NA & Others (Tier 1 Post-Study Work-funds)  UKAIT 00025:
"... whilst it is possible for a student in the course of his or her studies (and part-time working, if applicable) to have developed over time ties with the community that amount to significant elements of a private life within the meaning of Article 8 (a student may also have maintained or developed incidental family life ties here), they are persons who have come to the UK for a limited purpose and with no expectation of being able to stay except by meeting the requirements of the Immigration Rules. They do not thereby acquire a right to remain in the UK despite the Immigration Rules. A refusal under the Tier 1 (Post-Study) scheme may mean they fail to make their immigration prospects better; it does not mean they have been made worse."
But in CDS the Tribunal has noted the Court of Appeal's remarks in Pankina, quoting from the section of that judgment which includes the following:
"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".
In other words – the maintenance requirements of the Immigration Rules can't be said to matter anything like as much as having the necessary qualifications.
Applying this reasoning to CDS's case the Tribunal indicated that she had only failed to meet the requirements of the Immigration Rules relating to maintenance because of changes in the Rules since she'd begun her career as a student in the UK. She had built up a private life during that time – and the violation of her right to respect for this was not proportionate.
These cases, which are decided by a panel including both the new President of the Asylum and Immigration Chamber of the Upper Tribunal and its deputy President, show that the "carpet removing" qualities of the Pankina judgment are far more significant than the UKBA appears to have appreciated.
It follows that a range of arguments in support of applications and appeals under the points based system are available in the light of Pankina. Accordingly there are now real opportunities for people to succeed – provided that they obtain appropriate professional legal representation.