Supreme Court Pronounces on the Immigration RulesLegal 8.65
1 In Briefing Paper No 8.43, issued in July 2010, I commented on the case of Pankina v. Secretary of State for the Home Department  EWCA Civ.719, decided by the Court of Appeal. The principle enunciated in that case is that changes in the law, in particular to detailed provisions in the Immigration Rules, must be made in proper legal fashion and not by administrative fiat of the Home Secretary, The Court of Appeal’s decision has been followed in other cases and has now been endorsed by the Supreme Court in Alvi (Respondent) v. Secretary of State for the Home Department (Appellant)  UKSC 33, decided on 18 July 2012. The Supreme Court dismissed an appeal by the Secretary of State against a decision of the Court of Appeal.
2 The respondent is from Pakistan and after completing studies in the UK obtained leave to remain in the UK as a physiotherapy assistant in 2005. In 2009 he applied for further leave as a Tier 2 (General Migrant) under the points based system which had been introduced in 2008. In February 2010 his application was rejected on the ground that his job as an assistant physiotherapist was not of the level of skilled occupations required by the relevant Rule, paragraph 82 of Appendix A to the Immigration Rules. That Rule requires (i) that the job appear on the United Kingdom Border Agency’s (UKBA) list of skilled occupations and (ii) that the applicant’s salary must be at or above the appropriate rate for the job as stated in that list. The list of skilled occupations was to be found on the UKBA website and was not contained in the Immigration Rules.
3 The Immigration Rules are made under powers conferred on the Home Secretary by section 3(2) of the Immigration Act 1971 which describes them as “statements of the rules…as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and conditions to be attached in different circumstances”. British citizens do not require leave to enter, nor do citizens of other Member States of the European Economic Area (EEA). The Rules govern the leave to enter and remain of citizens of all other countries. They contain hundreds of detailed paragraphs for the guidance of immigration officers in the United Kingdom, entry clearance officers at missions abroad and immigration judges and other judges dealing with appeals against adverse decisions in immigration and asylum cases or other cases which affect the rights of individuals to enter or remain in the UK. They are required by section 3(2) to be laid before Parliament and are subject to the negative resolution procedure. If they are disapproved by a resolution of either House of Parliament during the period of forty sitting days following laying, the Home Secretary must make such changes as may be required and those changes must be laid before Parliament before the end of the period.
4 Paragraph 2 above refers to the grounds on which the respondent’s application for further leave to remain in the UK as an assistant physiotherapist was rejected. The occupation was not on the approved list and the respondent’s salary was below the required level. The list and the statement relating to salary level did not appear in the Immigration Rules but, as already noted, on the UKBA website. This meant that they had not been approved by Parliament. For this reason the Home Secretary’s appeal was dismissed.
5 The decision means that a great deal of material which was hitherto accessible only on the UKBA website will from now on have to be incorporated into the Immigration Rules if it is to have legal effect. The Home Office has already reacted promptly by laying before the House of Lords a fresh set of amendments to the Rules on 20 July, two days after the decision was published. These amendments run to 288 pages and contain detailed provisions on work permits, including the information referred to in paragraph 4 above which the Home Secretary was unable to rely on in her appeal because it was not contained in the Rules. At paragraph 65 of his judgment Lord Hope acknowledged the problem which the Supreme Court’s judgment created:
“I am conscious of the burden which this finding will impose on the Scrutiny Committee…[i.e. the House of Lords committee which has the task of examining the detail of amendments to the Immigration Rules]. The volume of the material it will have to look at…may be such as to defeat the object of section 3(2) of the 1971 Act which must be taken to have been to ensure that the rules and any changes to them were subject to effective scrutiny…..The greater the detail, the greater the risk that matters of real importance will be overlooked and not drawn to the House’s attention. The situation that has created this problem is so far removed from what it was in 1971 that one wonders whether the system that was designed over forty years ago is still fit for its purpose today…….I hope that it may be possible for a method to be devised of laying changes which require reference to be made to extensive material in very large documents which can be accessed and searched electronically that will keep the number of documents to be laid and circulated in hard copy in each House….to an absolute minimum. But any changes to the system must be a matter for Parliament.”
Harry Mitchell QC
Honorary Legal Adviser
25 July, 2012