Foskett J interpreted Pankina: ‘The Court of Appeal held that the revised criterion could not be put in place by virtue of a process of issuing guidance. The ratio of the decision appears to me to be that a provision that reflects a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involves a true parliamentary scrutiny: see paragraphs 6, 22 and 33 of the judgment. The statutory foundation for such a conclusion is section 3(2) of the Act.’ If a change to current practice did not involve any alteration of a substantive criterion for admission or for leave to remain there would be no objection to the change being effected in some form of extrinsic guidance.’
As to the Guidance: I should say, less the effect of this decision is misunderstood, that I do not see it as in any way undermining the use generally of the guidance by or on behalf of the Secretary of State. Guidance is plainly of great value in the administration of a difficult and important area of Government policy. The decision is confined to one particular provision within the Immigration Rules although the reasoning that leads to it, if it is correct, is simply that extrinsic guidance cannot be used in the manner in which it was sought to be used in this case to make a material or substantive change in existing immigration policy without the negative resolution procedure set out in section 3(2) of the Immigration Act being implemented. That is what, as I perceive it, Pankina decided in the light of section 3(2) and I am bound by that decision . . .’
Judges:
Foskett J
Citations:
[2010] EWHC 1726 (Admin)
Links:
Statutes:
Citing:
Explained – Secretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
Cited by:
Cited – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 7-Apr-2011
The respondent had suspended and revoked the licence of the claimant company to enrol non-EEA students on its courses. . .
Cited – Alvi, Regina (on The Application of) v Secretary of State for The Home Department Admn 25-Oct-2010
The claimant, a 32 year old Pakistani national, had been refused leave to remain as a Tier 2 (General) Migrant worker. He had worked as a physiotherapy assistant, and said that this should have entitled him to 50 points under the assessment system. . .
Cited – Alvi, Regina (on The Application of) v Secretary of State for The Home Department CA 9-Jun-2011
The claimant appealed against the refusal of the Secretary of State to grant him leave to remain to a non-EEA economic migrant. The claimant had entered as a student and stayed working as a physiotherapy assistant. He said that on the change of . .
Cited – Alvi, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of . .
Lists of cited by and citing cases may be incomplete.
Education, Licensing
Updated: 21 August 2022; Ref: scu.420777
