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The Pankina victory: What does it mean for you?

by 1st Contact | Aug 04, 2010
  • If your application for further leave to remain was recently refused or if you have been refused on grounds of maintenance only, a recent court ruling could make it possible for the decision in your case to be overturned!

    The legal requirement

    Previously, an applicant under the Tier 1 Migrant scheme had to prove that they had £800 in savings (for in country applications and extensions) for at least three months prior to the date of application (and £2800 if these were out of country entry clearance applications).

    In Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719, the Court of Appeal eliminated this requirement and from now on, an applicant under the Points Based System need only show that they have £800 (where the Non EU National is in the UK) or £2800 for out of country entry clearance applications, in their bank account at the time of application prior to 22 July 2010.

    Why was the decision overturned?

    In a the UKBA Policy Guidance Notes document is not legally binding and allows for common sense to be used when deciding on each case.

    Immigration in the UK is governed by “Immigration Rules” – a document which outlines all the necessary requirements for people wanting to enter the UK. According to the “Immigration Rules”, an applicant must have £800 or £2800 (depending on country of lodgement of application) in their bank account at the time of applying as part of the maintenance requirements criteria.

    When it comes to the Points Based System, there is another document called “Policy Guidance”, which contains detailed requirements regarding the making of an application. This Policy Guidance document states that in Tier 1 applications, the applicant has to prove that there has been £800 / £2800 in the account for three months.

    The Court of Appeal ruled that the actual Immigration Rules are in fact law and that the Policy Guidance should be used as a structured guideline only.

    Remedies to be followed

    There are various circumstances where applicants who have had their applications refused, can have the decision overturned, because of the Pankina ruling.

    The document attached, issued by UKBA, covers all the details and in particular pertains to those who:

    a. Applied for further leave to remain under Tiers 1, 2, 4 and 5 of the Points Based System (PBS), including dependants; and
    i. Applied up to and including 22 July 2010; and
    ii. Were refused on Maintenance (Funds) only; and
    iii. Are lawfully in the United Kingdom at the time of requesting reconsideration.

    b. Applied for entry clearance under Tiers 1, 2, 4 and 5 of PBS, including dependants; and
    i. Applied between 23 June and 22 July 2010 (inclusive); and
    ii. Were refused on Maintenance (Funds) only.

    It does not apply to migrants who applied for either entry clearance, or leave to remain on or after 23 July 2010. Those applications will be considered under the new rules laid before parliament on 22 July (which became law on 23 July 2010).

    If you are affected, you will have until 22 June 2011 to take advantage of the proposed remedies.

    If you have any questions at all relating to your application, visit our visas section or speak to a qualified Visa consultant on 0800 856 2473.

    We are a professional services company that specialises in cross-border financial and immigration advice and solutions.

    Our teams in the UK, South Africa and Australia can ensure that when you decide to move overseas, invest offshore or expand your business internationally, you’ll do so with the backing of experienced local experts.

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