Many people fall foul of the strict procedural requirements of the Points Based System, leaving them with a refusal from the Home Office, and in a quandary as to what step to take next. This may be because an individual fails to provide the documents that the policy guidance mandates as necessary to prove their entitlement under the Rules. Immigration lawyers have been used to rules which prevented further applications succeeding once one application had failed: for example by a mandatory refusal where an individual had overstayed their leave to enter; or via an absolute requirement within the destination rule that leave to enter or remain be possessed (see eg immigration rule 284 for extending into marriage leave, which required the possession of leave to remain under the immigration rules for over 6 months).

But under the PBS the immigration rules are structured differently. A person “who is applying for leave to remain must have, or have last been granted, entry clearance, leave to enter or remain” (eg immigration rule 245C(f) at, which then goes on to permit extension of leave to remain within the category of Tier 1 Migrant) where that earlier leave was held as a Highly Skilled Migrant, or as a Tier 1 (General) Migrant (etc). The italicised phrase is not consistent with a ban on a further grant of leave to remain merely because an individual has overstayed their leave: that would not respect the requirement that leave “have last been granted”. For sure, there are some restrictions on character as regards immigration history: they may not be an illegal entrant (eg rule 245C(b)), or fall for refusal under the general refusal reasons. Certainly there is no mandatory refusal reason to defeat the application’s success (see 322(1-1A)); as to discretionary refusal reasons, there may ostensibly, by virtue of the overstaying that follows a refusal plus appeal, be “a failure to comply with any conditions attached to the grant of leave to enter or remain”: but it is difficult to agree that there has been a material failure to comply with the immigration rules when the application for leave to remain has failed for technical reasons.

So whilst the PBS is tough in some respects, it appears more generous than the preceding system in its approach to applications made without leave to remain.