Archives For PBS

man bending a ruler

Having been overruled by the Court of Appeal in the case of Rodriguez [2014] EWCA Civ 2 (FM post here), Mr Justice McCloskey, President of the Immigration and Asylum Chamber of the Upper Tribunal, has returned to the vexed issue of ‘evidential flexibility’ in a trio of cases:

Durrani (Entrepreneurs: bank letters; evidential flexibility) [2014] UKUT 295 (IAC)

Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 297 (IAC)

Fayyaz (Entrepreneurs: paragraph 41-SD(a)(i) – “provided to”) [2014] UKUT 296 (IAC)

This is an issue that the Supreme Court will be examining in the coming months, permission having been granted on 19 May 2014 in Rodriguez (now called Mandalia). These latest Upper Tribunal cases are not, therefore, the last word we will see on the subject.

The headnotes read as follows: Continue Reading…

Points Based System flexibility to be considered by Supreme Court

The case of Rodriguez, Mandalia and Patel [2014] EWCA Civ 2 is to be reconsidered by the Supreme Court, this months grants of permission reveals. The case concerns the ‘evidential flexibility’ policy that I think was first publicly revealed here on Free Movement. It is a chance for the Supreme Court to grapple with the insanely complex requirements of the PBS and consider whether the system is a fair and lawful one. Also going up to the Supreme Court is TN (Afghanistan) & Anor v Secretary of State for the Home Department [2013] EWCA Civ 1609 on the issue of whether judicial review is an adequate remedy for the purposes of EU law on asylum.

Educational Testing Service officially dropped from Immigration Rules

A new Statement of Changes to the Immigration Rules (HC 198) corrects an earlier botched attempt to change the rules by fiat and remove discredited Educational Testing Services (ETS) as providers of the English language test needed for many modern immigration applications. ETS was the subject of a BBC Panorama investigation which claimed to have exposed “systematic fraud”.

The removal of ETS from the rules takes effect on 1 July 2014. In the meantime I understand there is a policy in place that ETS certificates are not accepted, although the legal basis for that policy might be questionable.

It will have taken the Home Office over four months properly to implement the change.

rules

This post has been contributed by, Vijay Jagadesham, who represented the College in Global Vision College Ltd v SSHD[2014] EWCA Civ 659.

Readers would be forgiven for thinking that this question was clearly answered by the Supreme Court in the case of Alvi v SSHD [2012] 1 WLR 2208, and the subsequent case of New London College Ltd v SSHD [2013] 1 WLR 2358. As Lord Dyson explained in Alvi (at [94]):

“…any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule…”

Thus any requirement leading to a refusal of leave had to be contained in the Immigration Rules, and a refusal of leave on the basis of something not contained within the Rules was unlawful.

However, in the recent case of Global Vision College Ltd v SSHD [2014] EWCA Civ 659, Beatson LJ held that ‘veracity checks’ carried out by entry clearance officers in relation to students wishing to come the UK, where the student’s failure to satisfy those checks led to leave being refused, did not amount to a rule that needed to be in the Immigration Rules. Continue Reading…

Shebl (Entrepreneur: proof of contracts) [2014] UKUT 216 (IAC)

Official headnote:

The requirement to prove the existence of “contracts” in paragraph 41-SD of Appendix A to the immigration rules does not itself require the contracts in question to be contained in documents. There is, however, a need for such contracts to be evidenced in documentary form.

The Home Office attempted to argue that contracts have to be set out in a single document. The tribunal disagree, pointing out that many other forms of contract are legally effective. Nevertheless, the tribunal accepts that some sort of written evidence of contacts is required but that it might be spread out over several documents.

Contracts are not required for all types of entrepreneur application: graduate entrepreneurs can instead rely on a letter from the bank stating that a business account is open and operating. As always with the Points Based System, it is incredibly important to read the detail of the requirements.

The Supreme Court has held the Points Based System’s sponsor licensing scheme is lawful. As Nicola Carter observes, sponsors may be disappointed with the result in R (on the application of New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51 but it at least provides welcome clarity for businesses and universities awaiting the outcome. It is also a fatal blow to legal attempts to challenge the Home Office’s policy in recent years of outsourcing immigration control to private businesses, colleges and others (next: landlords) and the judgment includes an unpredictable constitutional sting in the tail for the future. Continue Reading…

Khatel overturned

Colin Yeo — 

In the case of Secretary of State for the Home Department v Raju & Ors [2013] EWCA Civ 754 the Court of Appeal has overturned the Upper tribunal’s earlier judgment in Khatel and others (s85A; effect of continuing application) [2013] UKUT 44 (IAC). The outcome is a further setback to victims of the stone-hearted Points Based System. However, it arguably only applies in quite narrow circumstances, and the new Evidential Flexibility policy may offer some relief in some circumstances if properly applied by Home Office officials or, if necessary, on appeal. Continue Reading…