New rules, to make it harder for international students to come and study in the UK, will become law unless Parliament intervenes.
On 22 July, the Home Office published rule changes which make life more difficult for international students. One of the changes says that from now on, graduates from UK universities who wish to stay here for work must prove that their bank balance never fell below £800 in the previous three months. Another says that students wishing to come to the UK to study English must be proficient in English to a high standard.
The rule changes are a bitter disappointment because they reverse the effect of legal rulings won by students and English language colleges in June and July.
The saga started in 2008, when the Home Office introduced new rules for international students who had graduated in the UK and wished to stay here for work, as part of its new points-based system of ‘migration management’. The government was keen to encourage graduates, seen as the ‘best and brightest’, to stay on and infuse British industry, banks and boardrooms with new talent, but wanted to ensure that the graduates could support themselves while they were looking for jobs. So the new rules introduced in 2008 required graduates to show that they had £800 in their bank accounts. The rules did not say how long the money had to be there.
Anastasia Pankina, an international student and a graduate from a UK university, applied to stay on and enclosed a bank statement for the month preceding the application, showing that she had £800 in her account. She was refused. The Home Office said that the £800 must have been in her account for three months before making the application. Although the rules didn’t say this, Home Office policy guidance did, and the Home Office argued that the rules incorporated the policy, leaving officials no discretion but to refuse the application. Ms Pankina and other students, similarly refused, took the Home Office to court, arguing that since they fulfilled the requirements set out in the immigration rules, they could not be refused on the basis of additional requirements contained in a policy. The rules, they said, were required by law to be put before Parliament, to give MPs the chance to vote on them. The Home Office could not get round that legal requirement by making policy and claiming the policy modified the rules.
The Court of Appeal agreed with the students, in a judgment issued in June. The requirement to have had the money in their bank accounts for three months was unlawful, the judges ruled, as Parliament had not had a chance to look at it and perhaps vote against it. Lord Justice Sedley referred to a 400-year-old case which established that the King and his ministers could not make new law without going through Parliament, and held that the same fundamental constitutional law applied today.
The Court of Appeal’s judgment was followed by another case in July. This time, the Home Office had issued new guidance to English language schools that they were not to enrol students below level B2 of the European standard for language proficiency – which requires students to be able to speak and understand the language to a high level before they embark on the course. A group of English language schools got together and challenged the guidance in the High Court, which held that the guidance was unlawful, once again because it had not been put before Parliament.
In mid-July, the Home Office indicated that it did not intend to appeal the judgments, and issued fresh guidance to its case-workers saying that until further notice, graduates wishing to stay only had to show they had had £800 on one day before making the application. But the further notice was not long in coming – within a week, the three-months requirement was in new immigration rules, which were laid before Parliament on 22 July, and came into force the following day. The rules also stipulated the minimum level of English for English students as that which had formerly been in its guidance.
The only difference is that MPs now have forty days from 22 July – excluding holidays – to vote against the new rules. The ball is in their court.
Read and download the Pankina judgment here
Download the new UKBA guidance following the Pankina judgment here (pdf file 180kb)
Read about the UKBA changes for students here