The rules governing the PBS are set out in the Immigration Rules and the appendices to those rules. These provisions have now achieved a degree of complexity which even the Byzantine Emperors would have envied.
Archives For PBS
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  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…
In the case of Secretary of State for the Home Department v Raju & Ors  EWCA Civ 754 the Court of Appeal has overturned the Upper tribunal’s earlier judgment in Khatel and others (s85A; effect of continuing application)  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…
Rumours as to the death of the ‘evidential flexibility’ policy prove to have been exaggerated. A new version was recently published. Hat tip to Adam Pipe of No 8 Chambers in Birmingham.
The policy covers the circumstances in which a Points Based System application will not be refused because of some sort of missing, incomplete or incorrectly formatted evidence or information. ‘Evidence’ and ‘information’ seem to be used interchangeably in the policy and quite considerable discretion is imparted to UKBA caseworkers as to how they approach a case that would on the face of the Immigration Rules fall for mandatory refusal.
If I had a suspicious mind I would be concerned that the flexibility is applied generously to the ‘right sort’ of applicant from, say, majority white countries, but little flexibility is applied to the ‘wrong sort’ of applicant, say from countries that are euphemistically referred to as ‘high risk’. It was the elimination of this sort of subjective discrimination that was supposed to be the virtue of the Points Based System, along with simplicity and ease of use. It feels like we have the worst of all possible worlds now – a system that is dementedly complex, which transcends mortal comprehension and yet which also allows for subjective and arbitrary decision making.
Incidentally, it turns out that the Modernised Guidance section of the policies part of the UK Border Agency website is the perfect place to hide a policy. It is virtually impossible to find anything there unless you know what you are looking for and where to find it.
Last month saw the advent of a very useful decision from the High Court concerning the lack of provision in the Immigration Rules to allow migrants in the Points-Based System to switch whilst in-country into a PBS dependent category: Zhang, R (on the application of) v SSHD  EWHC 891 (Admin). The category analysed within this judgment is that relating to a Tier 2 migrant seeking to switch to become a Tier 1 (PSW) dependant – Paragraph 319C (h)(i). Mr Justice Holman’s judgment has wider application and so it is certainly not a case to let slip under the radar.
Rather remarkably, the claimant in this case brought the Judicial Review claim once she had returned from China where she had sought the required entry clearance. She had followed legal advice that she could either leave the UK to seek entry clearance and comply with the Rules or overstay and rely on an Article 8 type claim. The claimant had been working in the UK as a Tier 2 Migrant but unfortunately was made redundant. She had found other employment but her employer was not able to issue her with a sponsorship certificate and so she could not seek to change the conditions of her Tier 2 leave. Meanwhile, the claimant’s husband was also here in the UK and was in the process of applying for leave to remain as a Tier 1 Post-Study Worker and so switching to become his dependent became an option. Apart from the fact that the Rules say ‘no’.
Not wishing to overstay and compromise her flawless immigration history, the claimant opted to return to China and after much delay, she obtained the entry clearance as her husband’s dependant and returned to the UK. Regrettably, because of the delays, her job offer was withdrawn but she followed this through by way of a Judicial Review challenge to the legality of the Immigration Rules requiring her to return for entry clearance.
This judgement usefully reviews the relevant principles established by the House of Lords’ Chikwamba judgment arising out of the policy of the SSHD to require those who did not meet the requirements of the Immigration Rules to return abroad and seek the appropriate entry clearance. Mr Justice Holman finds that:
37. (…) (T)he wording of requirement (h)(i) would appear difficult to reconcile with the approach of the House of Lords in Chikwamba to the issue of “out of country” applications. The wording of requirement (h)(i) admits of no exceptions to the imperative that those wishing to change their visa from “General” to “Partner” status must, without exception, leave the UK so to do.
However, Mr Justice Holman did fall short of declaring the actual provisions of the Immigration Rules incompatible with Article 8. At Paragraph 77, he concludes:
77. I, therefore, come to the clear view that save in particular cases (such as those involving a poor immigration record – as in Ekinci v Secretary of State for the Home Department  EWCA Civ 765 or where the engagement of Article 8 is very tenuous – as in R(Mdlovu) v Secretary of State for the Home Department  EWHC 2089) it will be rare indeed that the immigration priorities of the state are such as to give rise to a proportionate answer to Article 8 rights to family life where requirement (h)(i) is engaged.
78. It must follow from this that the application of the blanket requirement to leave the country imposed by paragraph 319C(h)(i) of the immigration rules is unsustainable. It is simply not consistent with the ratio of the decision in Chikwamba that this paragraph, as presently worded, should continue to form part of the rules. I am not prepared, however, to make a formal declaration on the matter. It is not the function of the court to redraft the rules but I would predict that the Secretary of State would in future face difficulties in enforcing requirement (h)(i) as presently worded in all but a small number of cases in which Article 8 is engaged.
While the rules are not struck down as such, the effect of the judgment is similar to FH (Iran) on post flight refugee spouses and Quila on the spouse visa age: most affected cases should succeed on human rights grounds. Both those cases led to amendment of the rules, although it is somewhat doubtful that will occur in this case.
In terms of wider application, there are countless other categories where switching from one type of visa to another is not permitted by the rules from within the UK and a trip abroad is needed. It has been consistent Government policy since David Blunkett’s tenure as Home Secretary to require a change of visa from abroad rather than within the UK and the requirement has gradually spread widely throughout the rules. Where there is a family life engaged (this will not always be the case of course) this judgment is strong authority that departure from the UK is disproportionate. This option will not always be appropriate for the individual applicant, though. Firstly, although it seems that the Home Office is not seeking to appeal the judgment, past form suggests that it is highly unlikely that the effect of the judgment will be accepted in good grace. It is highly likely that Home Office officials will continue to refuse in-country switching applications, necessitating lengthy and expensive appeals or judicial reviews. Secondly, if an application, appeal or judicial review does succeed on human rights grounds in line with this judgment the Home Office policy is to grant three years of Discretionary Leave, which for various reasons might not be suitable for the particular applicant. A trip abroad for a straightforward change of visa might therefore continue to be appropriate in some cases.
Finally, note that in Nagre a very senior Home Office official bizarrely complained to the court that appeals being allowed on human rights grounds led to more generous grants of leave than would otherwise be the case because of the Home Office policy on what leave to grant. As if this was the fault of the judges rather than the Home Office!
[Some additional reporting from FM]
Two Statements of Changes to bring to your attention, HC1038 and HC1039.
On Monday 1 April 2013, HC1038 came into effect and can be viewed here.
Far weightier are the changes contained in HC1039 which will be brought into force on Saturday 6 April 2013 HC1039. These can be viewed here.
This adds to the definition of ‘Public Funds’ in paragraph 6 (Definitions) of the Immigration Rules to include
..(d) Universal Credit under Part 1 of the Welfare Reform Act 2012 or Personal Independence Payment under Part 4 of that Act;
(e) Universal Credit, Personal Independence Payment or any domestic rate relief under the Northern Ireland Welfare Reform Act 2013;
(f) a council tax reduction under a council tax reduction scheme made under section 13A of the Local Government Finance Act 1992 in relation to England or Wales or a council tax reduction pursuant to the Council Tax Reduction (Scotland) Regulations 2012 or the Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012.
‘Universal Credits’ and ‘Personal Independence Payments’ are all part of the government’s Welfare Reform Act 2012 which introduces a new benefit called Personal Independence Payment (a PIP) to replace Disability Living Allowance for eligible working age people aged 16 to 64. Universal Credits will be launched later this year and will replace income-based Jobseeker’s Allowance; income-related Employment and Support Allowance, Income Support, Child Tax Credits, Working Tax Credits and Housing Benefit. The ‘council tax reduction’ (sub-paragraph (f)) is the new name for ‘council tax benefit’.
At the time of writing, ILPA is seeking clarification on this issue as, on one hand, the UKBA have told ILPA that ‘The amendment does not relate to council tax discounts’ (eg, 25% discount if you live alone) whereas paragraph 7.3 of HC1038 states that ‘the new council tax reduction system in England will replace Council Tax Benefit from 1 April’. The concern expressed is that a person subject to immigration control currently able to enjoy 25% off their council tax bill may fall foul of the public funds prohibition if the 25% discount is included in the new definition of council tax reduction. This then is something to watch out for.
These new rules will:
- make changes to the Tier 1 (Exceptional Talent) and (Graduate Entrepreneur) categories, including allowing any Tier 2 migrant to switch into the Tier 1(Exceptional Talent) category.
- permit Tier 4 students who successfully completed a PhD at a UK Higher Education Institution to stay in the UK for one year if they remain sponsored by the Higher Education Institution. The purpose behind this change is to allow those who hold PhD time to gain work experience in their field, to find work in a Tier 2 category or to set up as an entrepreneur.
- update the Codes of Practice for skilled workers and associated requirements for carrying out the Resident Labour Market Test as well as updating the Shortage Occupation List.
- make other changes to the Tier 2 category including updating salary thresholds.
- provide for limits for grants of leave under Tier 1 (Tier 1 (Exceptional Talent currently set at 1,000 places per year)) and Tier 2 (currently 20,700 places per year) of the PBS to continue indefinitely, unless amended by future changes to rules. The annual limit for Tier 1 (Graduate Entrepreneur) will increase from 1,000 to 2,000 places per year.
- make provision under Tier 5 for independent professionals seeking admission in relation to international trade agreement and increases the period of leave from 1 year to 2 years for migrants applying to extend their leave under the Tier 5 International Agreement route (overseas government employees, employees of international organisations and private servants of diplomatic households).
- make other minor (but numerous) changes, updates and corrections to the Points-Based System.
- delete the temporary immigration rules which facilitated the entry and stay of certain Olympic and Paralympic participants and personnel during the 2012 Olympics and Paralympic Games. (This particular announcement brought on a short bout of post-Olympic blues. I’d thought I was over it).
- clarify that time spent in the ‘Crown Dependencies’ of Jersey, Guernsey and the Isle of Man with valid leave in specified categories counts towards the continuous residence period for work-related settlement.
- clarify the requirements relating to absences during the qualifying period for settlement on the Tier 1 (General) route.
- make other changes and clarifications on work-related settlement and long residence.
- change the current General Visitor rules in order to ‘guard against abuse’.
- make many changes to the Immigration Rules relating to family and private life.
- delete paragraphs 257C-E which had been brought into the rules in light of the judgement in Chen and instead make provision for persons falling within this judgement within the Immigration (European Economic Area) Regulations 2006 themselves.
- introduce a change to safeguard against an offender returning to the UK lawfully but in breach of a conditional caution.
- introduce specific rules setting out the requirements necessary for granting discretionary leave to unaccompanied asylum seeking children.
- make provision for a person to apply to be recognised as stateless and to be granted leave to remain in the UK in that capacity.
Forgive me but I’m only going to say more about the last 6 of these.
Visitors (paras. 7-9 of HC 1039)
In order for the Secretary of State to ‘…guard against abuse by those whose repeat visits amount to de facto residence’ (as it says in paragraph 2 of the Explanatory Memorandum) the current paragraph 41(ii) of the current rules stipulating that the particular visitor must intend to ‘…leave the United Kingdom at the end of the period of the visit as stated by him’ will be added to so that it will say ‘…and does not intend to live for extended periods in the United Kingdom through frequent or successive visits’. Also, to the current paragraph 41(vi) which reads ‘(and) will maintain and accommodate himself and any dependants adequately out of resources available to him without recourse to public funds or taking employment; or will, with any dependants, be maintained and accommodated adequately by relatives or friends will be inserted ‘…who can demonstrate they are able and intend to do so and are legally present in the United Kingdom, or will be at the time of their visit.’
Private Life (paras. 89-92 of HC 1039)
The Secretary of State refuses to admit defeat on these damn Article 8 rules. The underlined sections represent the changes:
Requirements to be met by an applicant for leave to remain on the grounds of private life
276ADE. The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK.
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.
A new paragraph 276A0 will provide that:
For the purposes of paragraph 276ADE the requirement to make a valid application will not apply when the Article 8 claim is raised:
(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;
(ii) where a migrant is in immigration detention;
(iii) where removal directions have been set pending an imminent removal;
(iv) in an appeal; or
(v) in response to a (one stop) notice issued under section 120 of the Nationality, Immigration and Asylum Act 2002.
Nothing too controversial there but one wonders why 276ADE(ii) had not been expressly included in the private life rules earlier as it reflects rule GEN.1.9 which had been there from the start.
Appendix FM (paras. 210-279 of HC1039)
There are scores of minor changes to Appendix FM and FM-SE (including many in respect of how applicants can prove their income to meet the financial requirements) but two which stood out for me were a new ground of refusal and the incorporation into the rules of something approaching the PBS evidential flexibility policy.
The new ground for refusal in S-EC 1.8 (Suitability for Entry Clearance) will be that: ‘The applicant left or was removed from the UK as a condition of a caution issued in accordance with section 134 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 less than 5 years prior to the date on which the application is decided.’ That’s ‘LASPO’ to you and me.
Section 134 (‘Conditional cautions: removal etc of certain foreign offenders’) will as of 8 April 2013 amend section 22 of the Criminal Justice Act 2003 (‘conditional cautions’) to give powers to the police to give conditional cautions to foreign offenders. The new section 3D of the CJA 2003 will state that ‘A conditional caution given to a relevant foreign offender may have conditions attached to it that have one or more of the objects mentioned in subsection (3E) (whether or not in addition to conditions with one or more of the objects mentioned in subsection (3))’. The so-called ‘objects’ (in section 3(E)) are ‘(a) bringing about the departure of the relevant foreign offender from the United Kingdom; and (b) ensuring that the relevant foreign offender does not return to the United Kingdom for a period of time’. Section 3(F) states: ‘If a relevant foreign offender is given a conditional caution with a condition attached to it with the object of ensuring that the offender does not return to the United Kingdom for a period of time, the expiry of that period does not of itself give rise to any right on the part of the offender to return to the United Kingdom.’ A ‘relevant foreign officer’ in section 3G means an offender for whom removal directions have been or may be given under Schedule 2 to the Immigration Act 1971, section 10 of the Immigration and Asylum Act 1999 or an offender against whom a deportation order under section 5 of the Immigration Act 1971 is in force.
The legislation is clear that the ‘objects’ of the caution are to bring about the departure of foreign offender and to ensure that the offender does not return to the United Kingdom for a ‘period of time’. I am bound to agree with BID’s concern expressed in its note of 2 April 2013 (well worth a read) written in response to government’s response to the consultation on the draft CPS code of practice on adult conditional cautions (the government documents being found here) that ‘..the use of foreigner offender conditions with adult conditional cautions would be to shift responsibility for foreign nationals facing removal to the Home Office at the point they are transferred to immigration removal centres, but without in any way addressing or resolving the underlying immigration issues in individual cases.’ There is certainly more to be said about this particular topic in a future blog.
Under the Appendix FM-SE (Family Members – Specified Evidence) (see HC1039 para.228) we see something similar to the ‘PBS evidential flexibility’ principle being introduced at paragraph D(f): ‘Before making a decision under Appendix FM or this Appendix, the decision-maker may contact the applicant or their representative in writing or otherwise to request further information or documents. The material requested must be received by the UK Border Agency or Border Force at the address specified in the request within a reasonable timescale specified in the request’. This is a very welcome introduction. One hopes that it is applied consistently but if it is not then there arises a strong ground of appeal.
EEA (paras. 86-88 of HC1039)
Paragraphs 257C-parargaphs 257E: ‘Requirements for leave to enter or remain as the primary carer or relative of an EEA national self-sufficient child’ are to be deleted. The government had in fact incorporated its own interpretation of Chen into the EEA Regulations back in July 2012, for which see an earlier post.’
Unaccompanied Asylum Seeking Minors (paras. 122-123 of HC1039)
Here the unaccompanied asylum seeking minors’ policy will now be is now reflected within in paragraphs 352ZC to 352ZF. You will note though that the length of leave under the policy of 36 months has been reduced to 30 months or until the minor has reached 17½ and there is also provision for the cessation of leave in the case of misrepresentation or omission of facts which led to the initial grant.
Statelessness (see paras. 124 – 139 of HC1039)
The new paragraphs 401-416 will provide a route by which those who fulfil the criteria for recognition as a stateless person as defined by Article1(1) of the 1954 United Nations Convention relating to the Status of Stateless Persons and their family members can apply for leave to remain and indefinite leave to remain.
This short post doesn’t pretend to be comprehensive review of the new rule changes, many of which will have at least some impact on the majority applicants. Best then to study them and then to sit tight ready for the next ones. They’ll be along soon enough.
A big thank you goes to Jane Heybroek of Bell Yard Chambers for persisting with her Freedom of Information request in relation to further documents concerning the Evidential Flexibility policy. You can access the disclosure here. The policy (but not Jane’s FoI instructions) was very recently covered by the Upper Tribunal in its decision of Rodriguez (Flexibility Policy)  UKUT 00042 (IAC), to which the other policy instructions are usefully annexed. Related posts and documents previously uploaded by Free Movement can be accessed here.
The documents within Jane’s FoI request are essentially the full sets of instructions that were issued to caseworkers back in August 2009 when the policy was seemingly first put into place. This coupled with Rodriguez, means that there can be no doubt now of the policy’s existence dating back to 2009. It also shows that it is worth reviewing cases which might have failed at appeal level due to section 85A of the 2002 Act coming into force in May 2011 and in which the policy should have been applied. It has taken a shockingly long time for the various sets of case-working instructions to become available in the public domain, for the various Policy Guidance to be amended and for the Rules to finally reflect these types of changes in practice. With the latter only being started in September of last year.
Specifically Paragraph 245AA of the Rules now states:
245AA. Documents not submitted with applications
(a) Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the UK Border Agency will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where they are submitted in accordance with subparagraph (b).
(b) If the applicant has submitted:
(i) A sequence of documents and some of the documents in the sequence have been omitted (for example, if one bank statement from a series is missing);
(ii) A document in the wrong format; or
(iii) A document that is a copy and not an original document, the UK Border Agency may contact the applicant or his representative in writing, and request the correct documents. The requested documents must be received by the UK Border Agency at the address specified in the request within 7 working days of the date of the request.
(c) The UK Border Agency will not request documents where a specified document has not been submitted (for example an English language certificate is missing), or where the UK Border Agency does not anticipate that addressing the omission or error referred to in subparagraph (b) will lead to a grant because the application will be refused for other reasons.
(d) If the applicant has submitted a specified document:
(i) in the wrong format, or
(ii) that is a copy and not an original document,
the application may be granted exceptionally, providing the UK Border Agency is satisfied that the specified documents are genuine and the applicant meets all the other requirements. The UK Border Agency reserves the right to request the specified original documents in the correct format in all cases where (b) applies, and to refuse applications if these documents are not provided as set out in (b).
This still needs to be read in conjunction with the Evidential Flexibility instructions and also the UKBA’s letter of 19 May 2011, which was also the subject of Rodriguez (see Appendix A of that judgment for the letter in full). This letter is important as it states that:
In addition a validation stage is being trialled whereby applicants are contacted where mandatory evidence is missing and given the opportunity to provide it before their application is rejected. These policies aim to provide excellent customer service and reduce the number of applications falling for rejection.
This arguably allows a wider discretion than the Evidential Flexibility instructions do as it sets out the applicable scenarios as being when there is missing mandatory evidence, without stipulating further restrictions. The head-note in Rodriguez summarises the position nicely for cases where the 19 May 2011 letter applies and where it might not apply:
Since August 2009 UKBA has operated a policy relating to the processing and determination of applications under the Points Based System (“PBS”). This was revised with effect from May 2011. In its policy letter of 19th May 2011, UKBA states that during an unspecified trial stage applicants will be contacted where mandatory evidence is missing from their applications and given the opportunity to provide this. UKBA is under a public law duty to give effect to this policy in all cases to which it applies.
As regards all other applications, to which the policy letter does not apply, UKBA case workers and decision makers must be aware of and give full effect to its “Evidential Flexibility” policy document. This requires due appreciation of the discretionary powers enshrined therein to request further information from applicants in any case and the exercise thereof in accordance with established legal principles viz the duties to appreciate the existence of and correctly understand and give effect to the policy; to act fairly and rationally; to take into account all material considerations; to disregard immaterial considerations; to observe the requirements of a procedurally fair decision making process; and to act compatibly with such ECHR rights as may be engaged in a particular case, in accordance with section 6 of the Human Rights Act 1998.
Sorry a lot of emphasis added there!