3-month Maintenance Rule unlawful

The Court of Appeal (COA) yesterday announced their ground-breaking decision on the points based system (PBS), declaring that the UKBA requirement that maintenance funds be present in an applicant’s bank account for the 3 months preceding the application is not binding.

The COA heard 6 joined appeals. 5 of the appellants were refused their Tier 1 visa applications because they did not meet the maintenance requirements. Their bank balances fell below the requisite £800 during the 3-month period preceding their applications. However, their closing balance at the date of application was above £800. The 6^th appellant did not provide evidence that on the date of application he had at least £800 available in his account, and therefore his case was unsuccessful.

The reason why the COA decided that the requirement was not binding was that it was not imposed by the Immigration Rules but by the Points Based System Policy Guidance (the “Guidance”). The decision therefore touches on very important constitutional issues and the vexed question of sub delegated documents and their application to or connection with legislation and/or Acts of Parliament.

Neither the Guidance nor the Immigration Rules are statutory measures (legislation enacted by the Parliament). It is an established principle of the UK Constitution that the laws of the United Kingdom are common law, statute law and customs and that the Executive (the monarch and the government) cannot change or create laws. However, ministers can enact the so-called subordinate/delegated legislation, but only when expressly authorised by the primary legislation (statutes). The scope of this power is therefore limited to serving its purpose, which is, the implementation and administration of the primary legislation.

The character of the Immigration Rules is specific in that they do not exactly fall under any of the above categories. They are described as “statements as to the practice to be followed in the administration of the Immigration Act 1971” (the “Act”). The Act itself prescribes in section 2 the content of the rules and the procedure for their “enactment”. It grants the Secretary of State power to lay them before Parliament. They are not passed through Parliament as normal Bills. Parliament can only disapprove them in which case the Secretary of State is obliged to make such amendments as he thinks necessary. The Immigration Rules are not binding as statutes, but because of the limited Parliamentary scrutiny they have acquired the legal status of being more than mere governmental policy. They contain provisions regulating entry into and stay in the UK, the core of UK Immigration Law. As the Court of Appeal pointed out, the Immigration Rules have been “raised” to the status of binding law by s.84(1) of the Nationality, Immigration and Asylum Act 2002. This section provides that an immigration decision can be appealed on the ground of not being in accordance with Immigration Rules. In practice, it means that the Immigration Rules have the force of law, at least in appeal situations.

The PBS Guidance on the other hand represents classic governmental policy – “the principles upon which departmental officials, acting in the minister’s name, will deal with matters which they have to decide and which are not determined by law”. Policies have no binding power, except internally within governmental departments.

The Immigration Rules have been elevated to the status of “quasi-law” as they create rights which can be vindicated in the courts. The question for the COA was whether those Immigration Rules can provide for further delegation of power and indeed, refer to other documents. The COA expressed a view that it is acceptable for the Immigration Rules to refer to outside sources of evidence, for example bank statements. However, it is not appropriate for the Immigration Rules to refer to policy documents, which create new rules or requirements, not contained in the Immigration Rules. This was the case with regards to the maintenance requirement and the 3 month rule for Tier 1 Post-study work visas. It was not expressed in the Immigration Rules, and was only set out  in the Guidance. It created additional requirements, which adversely affected an applicant’s entitlements. The COA further confirmed that the fundamental principle of the UK Constitution – the rule of law – requires the Executive to implement the law, not create it. Only documents laid before Parliament can impose new requirements or restrictions.

Secondary to the constitutional issue was the question of the date at which the facts of each case were to be tested. The court confirmed that the date to be taken to assess someone’s eligibility is the date of application and not the date of appeal. So the 6^th appellant who did not have sufficient funds available in his account on the date when he submitted his application (but who maintained the appropriate balance) at the date of appeal, could not succeed.

The COA further considered whether Art.8 of the European Convention on Human Rights -  the right to family and private life can have an effect on the PBS and confirmed that the Immigration Rules are not provisions which would excuse a public body from the application of the Human Rights Act 1998. Convention rights must be respected in all immigration decisions and any restrictions must be proportionate. If someone has established family and private life here, including career, needs to be taken into account.

The purpose of the maintenance requirement – proving that someone can support themselves without recourse to public funds can be achieved even if a bank balance sometimes falls below £800.

The judgement puts an obligation on the Home Office to make its decisions sensibly, implementing the Immigration Rules and their purpose, with respect for human rights, and not to use the Guidance to substantially impair an applicant’s rights. Failing that, a judge should allow the application on appeal. It has been noted that this is exactly what immigration judges had been doing in the past.