3rd Feb 2012
The Immigration Rules could lawfully incorporate the Secretary of State for the Home Department's policy guidance if it was a requirement which did not materially change a substantive criteria for entry.
(1) The secretary of state had correctly conceded that the refusal letter was wrong to refer to para.245ZX(l). C succeeded on that issue. (2) In Secretary of State for the Home Department v Pankina  EWCA Civ 719,  Q.B. 376 the Court of Appeal was concerned with an individual's status which was to be contrasted with forms of evidence of compliance in the instant case, Pankina distinguished. There was a difference between substantive and minor alterations to the secretary of state's practice, R. (on the application of Alvi) v Secretary of State for the Home Department  EWCA Civ 681 followed, R. (on the application of New London College Ltd) v Secretary of State for the Home Department  EWHC 856 (Admin) and R. (on the application of the Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department  EWHC 3524 (Admin) applied. Pankina was not intended to apply to criteria which might have an indirect effect on an applicant's ability to remain. The proper approach was to ask whether the requirement was a change that operated to materially change a substantive criteria for entry. All that was required in the instant case was that the approved education provider list the criteria it had used to be sure that C would complete the course. It was a minor alteration to the secretary of state's practice which had an indirect effect. In the instant case it was not difficult for applicants to obtain the relevant policy guidance. C's college had failed to provide a valid visa letter.