Pre-23 June Overseas Applications, the Pankina Judgment, and Judicial Review

The Pankina Policy: Reliefs and Exclusions

Subsequent to the Court of Appeal’s judgment in Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719, the Points Based System Maintenance (Funds): Policy Document produced by the UKBA selectively applied the judgment to provide out-of-country applicants, who fell foul of the maintenance requirements, relief by having their applications reconsidered. Beneficiaries under the policy have until 22 June 2011 to have their matters reconsidered. By its very design, however, the UKBA policy functions to exclude overseas applicants who applied for entry clearance prior to 23 June 2010 (this is the date when Sedley LJ pronounced his judgment in the Court of Appeal).

Under the policy the relief operates to only aid people who “[a]pplied for entry clearance under Tiers 1, 2, 4 and 5 of PBS, including dependants, and who applied between 23 June and 22 July 2010 (inclusive), and whose applications were refused because of inadequate Maintenance (Funds) only”. Therefore, a plethora of applicants whose applications were refused prior to the Court of Appeal’s judgment on 23 June 2010 have conveniently been precluded from any relief under the “Pankina policy”. The present article aims to analyse how those persons who have been excluded by the policy can challenge the unlawful decisions which have adversely affected their future plans to work or study in the United Kingdom.

Excluded Applicants and Possible Legal Action

It is only fair to ask whether pre-23 June 2010 applicants whose visas were rejected for lack of funds are able to pursue any legal action in relation to their matters so as to try to bring probity into the UKBA’s policy?

Surely, the prohibitively expensive visa process where no refunds are provided for failed applications is something that the UKBA should consider more seriously in relation to the type of applicants who benefit in the post-Pankina world.

A major source of refusals has been the differences in style in the type of documents which can be submitted in as evidence for maintenance. For example, fixed deposit accounts in South Asia and Africa do not have monthly statements exhibiting the balance of the account on every day that the money is held. Moreover, while the money can be withdrawn at any time many banks do not expressly state this on the letters which they provide to applicants for immigration purposes.

Out-of-country applicants do not have the right to a full appeal and they are only offered an Administrative Review (AR) of the Entry Clearance Officer’s (ECO) decision. Comparatively, the fees which applicants pay when submitting their visa applications are extravagant and the work done by ECOs is generally quite inaccurate. In the developing countries of the world such as India, the fees charged by the UKBA for issuing visas do not adequately reflect the local standard of living into the fee charged and such fees are identical to the ones charged for applications made in country. If Indian applicants apply the uplift multipliers used by the UKBA when assessing, say for example Indian applications, then the fee for a Tier 1 (General) application should most certainly be reduced by a factor of 5.3 from Rs 51,750 to Rs 9,764.

Given all this the obvious legal issue which arises is that why should out-of-country applicants (applications for entry clearance) not enjoy the same rights as applicants in the United Kingdom (applications for leave to remain)?

Moreover, at best, an applicant’s prospects of success in an AR of a decision to refuse entry clearance are very marginal. Therefore, the only way for these applicants to proceed further with their refused applications is to seek a Judicial Review (JR) of the immigration decision concerned. JR applications can be lodged against the Secretary of State for the Home Department’s (SSHD) decision if the JR pre-action protocol letter of claim is not taken seriously by her.

Article 2 of the First Protocol of the European Convention on Human Rights expressly states that “no person shall be denied the right to education”. All the student applications which were refused on the grounds of inadequacy of funds should sufficiently attract this Convention Right. Owing to the discrepancy between the rights afforded by the UKBA for leave to remain applications in comparison to entry clearance applications, applicants will also be able to raise article 14 (prohibition on discrimination) when bringing JR challenges to the decisions taken in their visa matters by the SSHD.

In Pankina Sedley LJ said that the applicant’s article 8 rights under its private life limb were decidedly engaged. To advance that thought further and by taking it to its logical conclusion, it is quite easily arguable that article 8 rights are also engaged in relation to applicants who qualify to work or study in the United Kingdom but whose visas have been unlawfully refused owing to unlawful modifications to the immigration rules which were contained in the three months’ continuous requirement for maintenance. (Reflected in the sums of £800 and £2,800 for in-country applications and overseas applications respectively.)

Extraterritorial Effect of the Human Rights Act 1998

In the landmark case of Al Skeini & Ors v Secretary of State for Defence [2007] UKHL 26 the House of Lords held that:

  • It was not objectionable in principle for legislation to apply to British subjects outside the territory of the United Kingdom where it did not offend against the sovereignty of other states;
  • The wording of section 6(1) was general, containing no geographical limitation, and applied only to United Kingdom public authorities; that, since the central purpose of the 1998 Act was to provide a remedial structure in domestic law for the rights guaranteed by the Convention, it would not be offensive to the sovereignty of another state to make those remedies available on its territory for acts of such authorities;
  • Since in exceptional circumstances acts of the contracting states performed outside their territory could constitute an exercise of their jurisdiction within the meaning of article 1 of the Convention, the rights scheduled to the Act, including article 2, were to be read as applying wherever the United Kingdom had jurisdiction in terms of article 1;
  • Accordingly, section 6 was to be interpreted as applying to a public authority acting not only in the United Kingdom but also within its article 1 jurisdiction outside its territory.

Setting Future Trends

Experienced public law practitioners at the English Bar take the view that the threat of impending JR claim usually makes the SSHD amenable to taking a more balanced decision (which usually means granting a visa where the threat of litigation is real) . However, the problem question for out-of-country applicants is how to strike up a rapport with lawyers handling their matters far away in the United Kingdom?

Other questions which arise are in relation to legal costs.

In response to the imperative question on how to obtain the right services for the job, UK Visa Solutions will do our utmost to find remedies for overseas applicants who have been excluded by the UKBA’s “policy document”.

Please contact us for a free evaluation of your case today.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in AP (Russia), Article 8, Cases, Constitution, Court of Appeal, ECHR, Immigration Law, Immigration Rules, Judicial Review, Pankina, PBS, Post Study Work, Tier 1, Tier 2, UKBA and tagged , , , , , , , . Bookmark the permalink.

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