The legal challenges to the maintenance requirements under the Points Based System (“PBS”) were discussed in Immigration Minister Damien Green’s Written Ministerial Statement which was presented to Parliament on 22 July 2010. The terms of the Minister’s statement in relation to Tier 1 are that the UKBA will not be challenging the Court of Appeal’s decision in AP (Russia) in the Supreme Court. Instead the government has laid a new statement of changes to the immigration rules (HC 382) paragraph 22 of which sets out the requirement in relation to the continuous maintenance requirement of £800.
Mr Green explained that instead of appealing the Court of Appeal’s decision in AP (Russia) the government proposes to import the £800 three-month continuous maintenance requirement directly into the immigration rules. The requirement which is currently contained in the “policy guidance” was deprecated by the Court of Appeal in AP (Russia). That judgment is analysed here. The Court described the policy as a “modification” to the immigration rules without the consent or scrutiny of Parliament and it considered this modification a serious “constitutional issue” which needed to be addressed.
Mr Green’s statement claimed that the immigration rules allowed “details of certain requirements” to be contained in the UKBA guidance rather than the rules themselves because this “best practice” allowed the UKBA “to have [the] flexibility it needs to make minor changes while staying within the framework set out in the immigration rules.” The continued espousal of such statements fails to strike a balance with the judgment the Court of Appeal in AP (Russia) and directly contradicts the Court of Appeal’s ruling. It remains to be seen if the government can introduce changes to the immigration rules without the pronouncement of a negative resolution from Parliament.