The appeal against the Home Office interpretation of the Points Based System has succeeded in the Court of Appeal. The case is Secretary of State for the Home Department v Pankina  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  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. Source: Free Movement.
The question now is where this leaves the Home Office/UK Border Agency on the many Judicial Review cases it is defending against international colleges and English UK.
In March English UK, which represents English language schools, launched a legal challenge against the Home Office over fears that the UK will lose thousands of jobs and £400m in income through tighter visa regulations.
Earlier this month a cross party group of 14 MP’s signed an Early Day Motion (EDM) calling on the UK Government to abolish ‘flawed and rushed’ legislation brought in by the previous administration requiring overseas students wishing to study English in Britain to first pass an English test.
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