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English UK challenge successful

English UK challenge successful

Firstly, I am well aware that this blog is seriously behind with a lot of the developments that have taken place in the last fortnight. And a lot has happened. I’ve actually read more or less everything now (iPad + public transport to far flung courts = well-read but pretentious and readily-muggable immigration geek). Expect lots of activity next week as the blog catches up.

First on the list is the successful challenge by English UK to the increase in the minimum level required for future foreign students of the English language. The case is R (on the application of English UK Ltd) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin). Penningtons, the firm instructed in the case, were kind enough to drop me a line about it previously. Well, they won.

Similarly to Pankina (covered here), the challenge was successful on the way in which the change was brought about, through guidance rather than through proper immigration rules. The other grounds failed. This does leave it open for the new Government to re-introduce the change by full immigration rules, but it may cause them to re-think the change while they work on a less back door means of limiting foreign student numbers. This seems right and proper: if they are going to take measures to limit numbers, it should be done openly and not through the back door, as with the increase in the foreign spouse age rules and these increased English language requirements.

I can’t say that I understand the judge’s finding that the original guidance is still lawful if the changed guidance is not because it was introduced in an unlawful way. The original guidance was introduced in exactly the same way, as far as I can see.

The reaction of the Home Office to this and Pankina will be interesting. I’ve heard that the Home Office is appealing Pankina, but if that appeal fails the whole Points Based System either has to be abandoned, implemented properly through the Immigration Rules or the primary legislation needs to be changed. As there is a new consolidating Act on the way, it may well be that the third of these options is preferred.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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