The Pankina judgment or “AP (Russia)” – Secretary of State for the Home Department v Pankina  EWCA Civ 719 - was a big blow to the Home Secretary and its manifestations are reflected in emergent case law. In R (on the application of English UK Ltd) v Secretary of State for the Home Department  EWHC 1726 (Admin), Foskett J accepted the claimant’s principal submission that the change in the minimum level of English language tuition permitted ought to have been introduced by a change to the immigration rules and was not capable of being introduced by a change in the UKBA’s policy guidance. In making this submission the claimant had placed reliance in Pankina. This article examines the effects of Pankina in the decision making of the courts concerned with immigration law.
Foskett J concurred with the claimant’s principal submission because the UKBA unlawfully amended the minimum level at which foreign students could enrol for English courses in the UK from Level A2 of the Common European Framework for Reference for Languages (CEFR) to Level B1. The objective was met by amending the UKBA’s policy guidance and not by introducing the change directly into the immigration rules. Foskett J, in his judgment in English (at  to ), concluded that Pankina was of wider application than being restricted to the 3-month maintenance requirementunder the tier system.
The decisions of the Upper Tribunal (Immigration and Asylum Chamber) (“the Tribunal”) subsequent to Pankina and English exhibit the gravity of the situation for the UKBA which will continue to face legal challenges because of Sedley LJ’s masterful deconstruction of the constitutional principles which included the supremacy of parliament itself. If the Home Secretary could singlehanded add conditions to the immigration rules (approved by Parliament) by using policy guidance, then surely using such a mechanism allowed the Home Secretary to bypass Parliament itself which was the supreme law maker. Moreover, in recognition of seriousness of the issue the Court of Appeal denied leave to the Home Secretary to appeal to the UK Supreme Court. After seeking the right legal advice it emerged that the Home Secretary gave up on seeking leave from the Supreme Court itself to appeal the decision and she introduced the changes in the rules themselves on 22 July 2010.
In CDS Brazil  UKUT 305 (IAC) the Tribunal found that since a modification to the rules via policy guidance prevented the appellant from obtaining an extension of her visa it was a disproportionate interference with her “private life that deserved respect as long as she continued to meet the other requirements of the Rules and make appropriate progress in her course of studies here.”
Similarly the case of FA and AA (PBS: effect of Pankina) Nigeria  UKUT 00304 (IAC) related to whether or not a person other than the applicant herself could hold the funds required for leave to remain to be extended under the Tier 4 student category. In this case the appellants were a couple from Nigeria. The husband’s visa was granted as a dependant of his student wife whose studies he supported. Again the Tribunal found that 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 and that policy guidance does not have the status of immigration rules for the purposes of immigration appeals.
Mr CMG Ockelton found that:
“[t]here is no question that the funds existed at all material times in sufficient quantity and that the husband made the funds available to the wife for the purpose of supporting her during the studies … This is not even a case of third-party support, as for many purposes husband and wife may be regard as a single entity with mutual obligations.”
In the wake of Pankina the UKBA has decided to reconsider applications which were affected by the judgment. These were divided into in-country applications which are given the right to be reconsidered until 22 July 2010 and overseas applications which were given the same right but only between 23 June 2010 and 22 July 2010. No great analysis needs to advanced to make the point that this policy is decidedly discriminatory.
However, the rules of natural justice and fairness require that there can be no discrimination in law between the type of applicant who is awarded the right to reconsideration for a decision which the Home Secretary wrongly made: it should be mandatory for her to fix the injustice of the wrong which cannot be achieved by discriminating between applicants in a geographic and chronological manner.
The discrimination which is evidenced in the relief policy introduced by the UKBA subsequent to Pankina is comparable in its inceptive flaws to the policy guidance which in the first instance sought to modify the immigration rules without the consent of Parliament and therefore birthed Pankina. Given that fact it is only inevitable that for many years to come there should be a plethora of viable judicial review claims by overseas applicants who were not granted visas for lack of funds because of the Administrative Courts’ amenability to hearing claims where the claimant was unaware of their potential claim and therefore unable to bring it in time.