Wending my way north on the train at an ungodly hour this morning, I found my reserved seat was opposite a fellow immigration lawyer I know from times past. We had a gossip, and he tells me that he was recently at Processions House, the temporary home of the Senior Immigration Judges after the Great Fire of Field House, while a three day appeal on the Points Based System was being heard. Ian MacDonald QC was instructed, amongst others, and my friend thought that one of the panel was Hugo Storey.
It sounds like the tribunal has finally gotten around to listing a test case of some sort.
Guidance is certainly much needed, although many lawyers suspect that when it comes it will not be terribly helpful to the clients caught out by the strict and arbitrary requirements of the PBS. If a taster is needed, this unreported decision (my thanks to the reader who spotted it) suggests that at least one of the arguments commonly used to mitigate the effects of the PBS has not found favour in the senior eschelons of the now doomed Asylum and Immigration Tribunal.
One possible alternative approach worth highlighting is to make use of the 28 day concession announced by Lord Bassam at the time of the debates on the PBS in Parliament (see here at column 97-98). The Home Office will consider applications submitted within 28 days of the expiry of a person’s leave as if the application had been made in time. Well, because of section 3C of the Immigration Act 1971, if an applicant under the PBS is rejected by the Home Office and appeals, that person’s leave only expires when his or her appeal rights are exhausted. Some lawyers report that PBS applications made within 28 days of the end of the appeal process have been accepted and granted.
Whether it is financially worthwhile paying a lawyer and the hefty application fee is an open question, as no-one can predict the chances of success at the moment. It may be that such applications end up being rejected by the Home Office. The only remedy at that point would be an expensive judicial review application.