The Pankina Victory: What Does It Mean to You?

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 www.1stcontactvisas.com or speak to a qualified Visa consultant on 0800 856 2473.

  • Andrew Learmonth

    So glad to know common sense has prevailed here!

    I was refused FLR for my Tier 1 Migrant visa extension in late Dec 2009 due to not having £800 savings for three whole months prior to my application (my balance was below the limit for 1 day of this period!!). I then spent the next 5 months appealing the decision and went as far as a tribunal to get the decision overturned. Needless to say it ruined my Xmas and NY plans last year and meant I couldn’t leave the UK until it was sorted.

    So great to hear this process will be a lot more simple for other people from now on.

  • rameshC

    I was refused Tier 1 switchover from WP as I submitted my application on 02 – mar 2009 (Monday) I attached sal slip for FEB 09 but could not attach FEB 09 bank statement(being first day of the month) , Hope I am eligible for re-consideration, I was denied because of maintenance funds only..Do we need to send the photographs along with passport and letter for request, Also can I send original statement saying I was having requisite funds in Feb also. Please advise

  • Rishi

    Hi,
    I graduated from Bournemouth University in MSc this March. I have received a letter from the University that I have successfully completed my course and I am eligible for the MSc award. My graduation ceremony will be held in November 2011. Can I apply for a PSW visa now or will I have to attach the original degree transcript with the documents?

    Thanx.