PBS Policy Guidance is not law (Pankina judgement)

[geriatrix]

Points Based System appeal succeeds
Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719
PBS decision not being appealed

[geriatrix]

My two cents -

Please follow the policy guidance until such time that the govt. announces anything to the contrary (e.g. - updated guidance, change in immigration rules). At this point in time, if you do not provide evidence as per the guidance and your application is refused, IMHO, the only way you'll get the decision overturned is through the court (appeals). From what we have seen in the past (during HSMP JR time), it could be months before the caseworkers become aware of this judgement and any changes to the processing procedures. Also note that it took more than 3 months for UKBA to publish updated policy (July) from the date of HSMP JR judgement being passed (April).

So, unless you have lot of time and money to waste or are applying through a solicitor, please do not stop submitting evidence(s) as specified in the policy guidance until such time that changes are announced by UKBA (publicly).




regards

[geriatrix]

The judges have allowed the appeals stating that the policy guidance is not the law, immigration rules are. Please note that, if the govt. wishes to, it is not difficult to have key requirements specified in the policy guidance included in the immigration rules ..... through secondary legislation ... thus making it law.




regards

[vinny]

New rules sidestep Pankina and English UK

[geriatrix]

New policy guidance following Pankina judgments
Points-based system policy guidance: maintenance (funds)

[ens]

In other words, the immigration rules from 23d of July say that guidance IS law...


Immigration Rules
1A. In all cases where an applicant is required to obtain points under Appendix C, the applicant must have the funds specified in the relevant part of Appendix C at the date of the application and must also have had those funds for a period of time set out in the guidance specifying the specified documents for that purpose.

[geriatrix]

Revised points-based system policy guidance: maintenance (funds)

[raju_ch_]

Hi Sush

I am unable to download this document. Could you please provide some other way.

[balo17]

I only became aware of the Pankina Judgment for applications for leave to remain made before 23 July 2010 a few days ago (9 Dec).

Yesterday I submitted my application to reconsider my refusal according to the Maintenance (Funds) Policy Document v2 (22 Nov 2010).

If anyone has any experience so far with these applications then please share them. I will share my progress and, fingers crossed, a positive outcome

Background info: I originally applied for an extension under Tier 1 (General) in 2009 and my application was refused solely on the grounds of maintenance funds.

[jisham]

hi.
i applied for tier1 general visa in march 2010 but was refused in the grounds of maintainence. but after the judgement given to pankina, i reapplied for visa as stated in the policy guidance and was granted 2 years visa. but according to the policy guidance of tier1 before April 6 it was a 3 year visa. so is it a mistake which i can question the home office or is it like that. please reply so that i can take that action as soon as possible

[balo17]

Hi Jisham.

Can you give some more details on your visa:

-did you switch into Tier 1?
-when was your application made?
-when did your previous leave expire?
-from what date did they grant you the leave, from your original application or later on when you applied under Pankina?

I am also interested to know what will be done with my decision. The HSMP visa I had was always an initial 2 years, then extend for 3 years.

For Tier 1 I think it was always initial 3 years, and then extend it for 2 years.

So I had the HSMP for 2 years, then applied for leave to remain under Tier 1 which should then have been granted for 3 years. Hopefully this is something that they will pick up.

[balo17]

Hi sushdmehta,

Can you tell me your understanding of the following and whether it is correct:

1) HSMP was always initially granted for 2 years, and then could be extended for a further 3 years.

2) Tier 1 General (at least when it came into force) was an initial 3 year visa and could be extended for a further 2 years (?)

3) A person that had an initial 2 year HSMP visa and then applied for extension under the Tier 1 General category should be granted a 3 year extension in order to get to 5 years?

I hope all of that makes sense

Just interested because I am currently in the process of getting my Pankina review implemented and just want to brush up on this. Certainly when I applied for my extension in 2009 I was under the impression that I would receive a 3 year extension since I was an HSMP holder extending under Tier 1 General.

[balo17]

I got my Tier 1 General extension granted under the Pankina judgment and it is for 3 years from the date of the UKBA's new decision, 14 Jan 2011 - 14 Jan 2014.

Don't know whether anyone can answer this, but after my extension refusal in 2009 I left and entered the UK on a new Visa. Now that technically counts as new entry clearance and my permanent settlement clock would have got reset.

Under the Pankina judgment the original decision has been overturned... does that mean that I can still start my permanent residence clock from my original HSMP application back in 2007?

[mhayat]

Hi All,

Please help me regarding review under Pankina case.

I applied for Tire-1 general visa back in Dec-2007 and received initial approval letter in Jan-08. I send my passport for visa in and it was rejected due to Maintaince grounds only.

After Pankina case, i also request a review of decision made on my application. I have sent in my passport, Biometric card, and letter to request a review. I haven't send bank statements as on pankina guidance notes its say you cannot submit any additional evidence.

My review requested was received by HO on 20th December-2010. but i haven't heard anything back.

please help. thanks, Maz

[balo17]

Maz, where did you apply from?

It's not a problem that you've heard nothing yet.

The first thing I heard from them was about 3-4 weeks after I sent in my review application and it asked me to send my passport + 2 photos. (I didn't send my passport with my review application, but they do need two photos if your application is successful)

You have to wait until you receive a letter from them with further information.

[amer1234]

Hi can anyone advise and help, i applied for consideration remedy under the pankina judgement novemeber 2010 for PSW refused only on maintainence funds.

I sent documents on 10th December and UKBA received it on 13th december and its 24th January today and i still havent heard or received any documentation from them.If anyone has received or heard from them please let me know. I will too if i receive. Does anyone know what the procedure will be now and how many years visa will be issued?