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 staying.
Held: The appeals succeeded. By 1969, immigration rules had by law shed the primary characteristic of policy – flexibility – and were required to have at least tacit parliamentary approval.
The Immigration Rules appear to have a unique constitutional status. Although described as policy they were given legal effect. They could not therefore incorporate elements from a document which had not itself been laid before parliament and which might further be amended without parliamentary scrutiny.
Sedley LJ said: ‘But the operation of the rules qua rules is one thing; what they contain as a matter of law is another. In my judgment the statutory recognition of rules which are to have the character and, on appeal, the force of law requires such rules to be certain. That does not shut out extraneous forms of evidence of compliance, so long as these are themselves specified, but it does in my judgment shut out criteria affecting individuals’ status and entitlements which – coming back now to the questions in para 23 above – (a) have not themselves been tendered for parliamentary scrutiny, and (c) even if ascertainable at that point of time, may be changed without fresh scrutiny. As to (b), while the fact that the criterion absorbed into the rules comes from a policy document makes nonsense of the notion of policy, this is not critical: the vice would be the same if the reference in the rules were to a categorical criterion in some external but impermanent or undetermined source.’

Sedley LJ, Rimer LJ, Sullivan LJ
[2010] 3 WLR 1526, [2010] EWCA Civ 719, [2010] WLR (D) 158, [2011] 1 All ER 1043, [2010] Imm AR 689, [2011] QB 376, [2010] ACD 93, [2010] INLR 529
Bailii, WLRD
England and Wales
CitedOdelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
CitedBritish Oxygen Co Ltd v Board of Trade HL 15-Jul-1970
Cylinders containing hydrogen gas were being put on a trailer pulled by a tractor for the purpose of delivery to the premises of the purchaser. One of the issues before the court was whether the function of the hydrogen trailers and the cylinders . .
CitedRegina v Secretary of State for Social Security ex parte Sutherland Admn 7-Nov-1996
The Secretary of State has no power to issue regulations which would withhold benefits pending an appeal against their refusal. Laws J said: ‘where the executive has been allowed by the legislature to make law, it must abide strictly by the terms of . .
CitedProclamations, Case of KBD 1-Nov-1610
The King, as the executive government, sought to govern by making proclamations. In particular the court rejected the proposition that ‘the King by his proclamation may prohibit new buildings in and about London’
Held: The monarch had no power . .
CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
CitedThe Zamora PC 1916
Lord Parker said: ‘The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by the Courts of law in this country is out of harmony with the principles of our Constitution. . .
CitedRegina v Criminal Injuries Compensation Board Ex parte Lain QBD 1967
The Crown Prerogative origin of the power to make ex gratia payments does not exclude the scheme under which the payments are made from judicial review. Decisions of the Board may therefore be subject to judicial review.
Lord Parker CJ . .
CitedRegina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
CitedRegina v Secretary of State for Social Services, ex parte Camden London Borough Council CA 1987
A directory referred to in a statutory instrument setting a level of benefits had not itself been passed by Parliament.
Held: There was no legal flaw in a statutory instrument which fixed the amount of benefits by reference to a directory . .
CitedRegina v Home Secretary, ex parte Hosenball CA 1977
A United States’ citizen was subject to a deportation decision which was held not amenable to judicial review on the ground of national security. He appealed.
Held: Neither a failure to lay rules before Parliament within the allotted time, nor . .

Cited by:
CitedNgouh, Regina (on The Application of) v Secretary of State for The Home Department Admn 27-Aug-2010
The claimant, a Cameroon national, sought to challenge the refusal of indefinite leave to remain. He had served in the British Army in Iraq, and lived here for over ten years. However when serving he had been convicted of a minor sexual assault in . .
ExplainedEnglish UK Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 9-Jul-2010
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 . .
CitedNew 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. . .
CitedJoint Council for The Welfare of Immigrants, Regina (on The Application of) v Secretary of State for The Home Department Admn 17-Dec-2010
The claimants challenged the imposition by the defendant of interim limits on (1) the number of applicants for entry clearance who may be issued with visas under Tier 1 (General) of the Points based system (PBS); and (2) the number of certificates . .
DistinguishedAlvi, 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. . .
ConfirmedAlvi, 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 . .
CitedAlvi, 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 . .
CitedFA and AA (PBS Effect of Pankina) Nigeria UTIAC 25-Aug-2010
UTIAC The effect of the decision of the Court of Appeal in Pankina is not limited to the ‘three-month rule’ in relation to evidence of funds. Policy Guidance does not have the status of Immigration Rules for the . .
CitedMM and SA (Pankina:Near Miss) Pakistan UTIAC 26-Jan-2011
UTIAC Judicial decision-makers should be careful to identify and reject arguments based on an alleged near-miss, which, on proper analysis, are an attempt to import extraneous qualifications into the immigration . .
CitedAleem (Pankina-Uplift for Overseas Earnings) Sri Lanka UTIAC 28-Mar-2011
UTIAC The requirement by the respondent that an applicant for leave to remain as a Tier 1 (General) Migrant, whose last leave was as a Tier 4 (General) Student), must have physically undertaken work in an . .
ExplainedAhmed, Regina (on The Application of) v Secretary of State for The Home Department Admn 2-Nov-2011
The governing principle laid down by Pankina as understood and applied in subsequent cases was that a substantive or material change to the content of the Immigration Rules must be made by way of amending rules which must be laid before Parliament, . .
CitedNew London College Ltd, Regina (on the application of) v Secretary of State for the Home Department CA 2-Feb-2012
The court was asked whether the removal of a Tier 4 General (Student) Sponsor Licence issued by UKBA which enabled it to issue a visa letter or confirmation of acceptance of studies to non-EEA students lacked the necessary legislative authority . .
CitedPatel and Others v Secretary of State for The Home Department SC 20-Nov-2013
The court was asked as to the respective duties of the Secretary of State and the First-tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, and more particularly as to the . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Immigration, Human Rights

Updated: 01 November 2021; Ref: scu.417713