UK: UKBA Forced to Re-Think PBS Rules and Guidance Following Successful Legal Challenges

Last Updated: 27 July 2010
Article by Asma Bashir

The UK Border Agency has been forced to make amendments to the Immigration Rules following two successful legal challenges. The two cases, Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 and English UK v Sectetary of State for the Home Department [2010] EWHC 1726 (Admin), were both handed down in July 2010. The findings in these cases raise serious concerns regarding the legality of incorporating substantive requirements of the points based system into policy guidance rather than the Immigration Rules themselves.

The Pankina and English UK judgments

The issue for determination in Pankina whether in country Tier 1 (Post Study Work) were required to hold £800 in maintenance funds at the time of application (as set out in Appendix C to the Immigration Rules), or for a continuous period of 3 months prior to the application (as set out in the Tier 1 (Post Study Work) policy guidance).

The Court of Appeal observed that rules (such as the Immigration Rules) must be certain in their content and subject to parliamentary scrutiny. By contrast, policy must be applied without rigidity and adapted in the interests of fairness and good sense. The court went on to hold that it is unlawful for criteria affecting individuals' status and entitlements to be incorporated in a source outside the Immigration Rules, if that source is impermanent or undetermined and not subject to parliamentary scrutiny each time it is changed. Since the criterion to hold the maintenance funds for 3 months was incorporated in changeable policy guidance not subject to parliamentary scrutiny, it could not be considered a lawful requirement.

In the English UK case, the Immigration Rule in question stipulated that courses offered by Tier 4 (student tier) sponsors must meet minimum academic requirements set out in policy guidance. The guidance itself specified that English language courses could only be offered to Tier 4 (General) migrants where the course was at level A2 or above on the Common European Framework of Reference for Languages (CEFR). The guidance was later amended to increase the minimum course level from level A2 to level B2.

The High Court adopted the reasoning in Pankina to find that whilst it may be permissible to for an Immigration Rule to refer to policy guidance available for scrutiny by parliament at the time the rule is made, section 3 (2) of the Immigration Act 1971 requires that any material or substantive change in the administration of immigration control must be placed before parliament for consideration. Accordingly, a change in the minimum course level could only be changed via a process including parliamentary scrutiny and could not be effected merely by changing the policy guidance.

Where to from here for the Points Based System?

Amendments to the Immigration Rules were laid on 22 July 2010 to reverse the practical effect of the Pankina and English UK judgments. Normally Immigration Rules are put into effect 21 days after being laid, however the relevant rules came into force on 23 July, using an exceptional procedure that allows rules to be brought into immediate effect. Due to the parliamentary timetable, these changes may not be debated (if at all) until at least October.

The amendments mean that Points Based System migrants now must hold maintenance funds for 90 days (or 28 days in the case of Tier 4 migrants and their dependants), and Tier 4 (General) migrants can only study English in the UK on courses at CEFR level 2 or above.

These changes address some immediate issues, however, where any substantive criterion for eligibility for admission or leave to remain is incorporated in policy guidance, its legality is open to challenge. Indeed, the legality of the entire structure of sponsorship (all of which is contained in policy guidance) also may come under serious question. Further amendments to the Immigration Rules are likely to be required in order to shore up the system and prevent further legal challenges.

Regarding longer term changes, the Coalition Government is currently in the process of consulting on reforms to Tiers 1 and 2 of the Points Based System, with consultations on the other tiers to follow. Further amendments to the Immigration Rules will be made as the immigration system is adjusted to accommodate the Government's promise to reduce net migration to tens of thousands per year.

Whatever the proposed changes will be, it is clear that the Government must make them via the Immigration Rules and not via the more 'flexible' and less transparent process of amendments to policy guidance.

The UK Border Agency has not yet released any guidance for those individuals whose Points Based System applications were unlawfully refused due to a failure to hold maintenance funds for a particular period of time. Those individuals should seek immigration advice on a case by case basis or contact the UK Border Agency directly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.