Secretary of State for the Home Department v Pankina

Immigration Rules have a quasi-legal status because they are the rules laid before Parliament under the Immigration Act 1971 and may found an appeal. They may refer to external material that supplies evidence of compliance, but they cannot incorporate a changeable policy document so as to impose an additional substantive eligibility criterion which Parliament has not scrutinised.

A requirement that applicants maintain a specified bank balance for three months was therefore ineffective where the Rules required only that they possess the stated funds at the date of application. If policy criteria were validly incorporated, they would operate as rules rather than as flexible policy. The Secretary of State must also apply the Rules compatibly with Convention rights, including ECHR article 8.

Six linked appeals concerned graduates seeking leave to remain as Tier 1 migrants under the points-based Immigration Rules. The Rules required applicants to have £800 and to provide specified documents. Policy guidance additionally required the £800 to have been held continuously for three months before the application.

The Asylum and Immigration Tribunal allowed Ms Pankina's appeal, holding that the three-month requirement had not formed part of the Rules laid before Parliament. The other applicants' cases raised the same issue, together with questions about the relevant date for assessing compliance and the effect of article 8.

The central issue was whether Immigration Rules may lawfully incorporate substantive and alterable criteria contained in unlaid departmental policy guidance.

1. The Secretary of State's appeal was dismissed; four of the five applicants' appeals were allowed; and Ms Malekia's appeal was dismissed. Sedley LJ gave the judgment, with which Rimer and Sullivan LJJ agreed.

2. The three-month requirement was not a lawful part of the Immigration Rules. The Rules have moved beyond ordinary departmental policy. Their statutory recognition, parliamentary scrutiny and enforceability on appeal give them a status akin to law. Only rules that have been laid before Parliament and have secured its authority through the statutory procedure may possess that quasi-legal status.

3. Following the principle illustrated by R v Secretary of State for Social Services, ex p Camden LBC [1987] 1 WLR 819, a rule may refer to an existing and accessible external source. That permits, for example, specified evidence of compliance. It does not permit an external policy document to add a substantive condition affecting an applicant's status or entitlement, particularly where the document may be changed without further parliamentary scrutiny.

4. Appendix C required the relevant applicants to have £800 at the date of application. It did not require them to have held that sum continuously for three months. Ms Pankina and four other applicants met the lawful requirement and succeeded. Ms Malekia never had £800 at a relevant time, so the invalidity of the additional requirement could not assist her.

5. As an alternative conclusion, if a policy criterion could lawfully be incorporated into the Rules, it would acquire the character of a rule. Compliance with a requirement concerning the state of an account at the application date could not be established by showing that the requirement was met only by the later appeal hearing.

6. In significant obiter, the court held that the Secretary of State must apply Immigration Rules compatibly with section 6 of the Human Rights Act 1998. The Rules are not subordinate legislation for the statutory exception in section 6(2). Accordingly, article 8 may require an independent assessment of proportionality, including the nature of an applicant's private and family life. Ms Malekia's article 8 claim was not before the court and, on the available findings, had no prospect of success.

• Court of Appeal (Civil Division): The court dismissed the Secretary of State's appeal in Ms Pankina's case, allowed the appeals of Mr Ahmed, Mr Junaideen, Mr Ali and Mr Sankar, and dismissed Ms Malekia's appeal.
• Asylum and Immigration Tribunal: In Ms Pankina's case, the Tribunal allowed the appeal on the basis that the three-month funds requirement was not part of the Rules laid before Parliament. The other matters came from Tribunal determinations identified by their appeal references, without reported citations.