In Pankina – or AP (Russia) – Sedley LJ asked the SSHD and the UKBA to refrain from using policy guidance to modify the immigration rules because the policy guidance had not been approved by Parliament.
While the UKBA is trying to adhere to the type of behaviour Sedley LJ mandated, the Agency’s old habits are dying a long and protracted death.
The major problem with the new revised policy document is that it still fails to make allowances for overseas applications (for “entry clearance”) which were refused prior to 23 June 2010 for reasons related to funds. When Sedley LJ restored the constitutional rule of law in England and Wales on 23 June 2010, the SSHD hastily introduced the requirements directly in the rules.
The only remedy for overseas PBS applicants whose applications were unlawfully rejected for reasons related to funds is judicial review which is a difficult route for people overseas to pursue. The historic unlawfulness, of course, was that the “policy guidance” required £800 or £2800 to be available for in-country an overseas applications respectively. The money had to be held for a continuous 90 day period. Sedley LJ found that only 1 day with the required level of funds sufficed for PBS applications where the SSHD used the policy guidance to modify the rules.
The new announcement of 22 November 2010 only includes reconsideration for in-country applicants who have an outstanding judicial review application against the SSHD: the terms of reconsideration are set out at paragraphs 23-25 of the document.
The only significant development that the “revised policy document” has to offer is that earlier applicants who were denied reconsideration under the initial reliefs because their permission to stay in the UK (“leave to remain”) had expired at the time of reconsideration will now benefit from automatic reconsideration by the UKBA.
Applicants will have until 22 June 2011 to take advantage of the revised guidance.
Applicants who don’t receive an updated decision from the UKBA by 31 January 2011 should contact the address provided in the revised policy guidance. No doubt with the spending cuts and the Irish loan many people will be contacting the said address as the UKBA be unable to finish its work on time.