- BY Colin Yeo
The Case of the Lost Prerogative
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The judgments
The judgments in Munir [2012] UKSC 32 and Alvi [2012] UKSC 33 are perhaps the most important in immigration law since the Immigration Act 1971 was passed. The Supreme Court holds that the ancient royal prerogative to control the entry of aliens has been displaced by statutory limitations, rejecting the Secretary of State’s bold argument that because immigration control was a matter of royal prerogative she was under no obligation to lay any rules before Parliament at all. Instead, Parliament intended by the 1971 Act that changes to immigration requirements must comply with the terms of that Act.
The Court goes on to hold that the requirements of the Act include that any substantive changes to immigration criteria are laid before Parliament in the slightly arcane ‘negative resolution’ procedure. The difficulty in this and previous cases was defining what was a substantive requirement and what was merely evidential or procedural and therefore perhaps exempt from the requirement to be laid before Parliament.
The leading judgments in Alvi are those of Lord Hope and Lord Dyson. They agree on everything of substance but disagree on one matter of detail.
Lord Hope goes first and at paragraph 57 tackles this central question of the type of requirement that must go through the Parliamentary procedure:
I agree with Lord Dyson (see para 94, below) that any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). A provision which is of that character is a rule within the ordinary meaning of that word.
He then holds that the details of how the resident labour market test are satisfied (what type of newspaper, how long the advert is open for, etc) are not of this character and not substantive requirements that must be laid before Parliament:
I am inclined think that information as to where to look to assess the state of the resident labour market is not of that character. It is referred to in the preface to the list of occupations as “advice” and in paragraph 71 of Appendix A as “guidance”. The language that the list itself uses is, of course, not determinative. A provision that is called “guidance” can nevertheless be a “rule” if it satisfies the test which we have identified. But it seems to me that to call it guidance is apt in the case of this material. It tells the sponsor what procedure he should follow, and the kind of evidence he should examine, in order to fulfil his duties as sponsor to test the resident labour market in cases where that test must be satisfied.
However, salary levels are such a requirement (par 59-60):
The references in the Codes to the appropriate rates for the job are, however, of an entirely different character … As the migrant must be paid at or above the appropriate rate for the job to qualify, the conclusion that information as to what that rate is has the character of a rule seems to me to be inescapable … It follows that the rates themselves and any changes to them must be laid before Parliament. It would be open to the Secretary of State to avoid having to lay changes if it was provided by the rules that an objective criterion, such as one of the recognised indices for measuring inflation, was to be used. But, as her ability to make changes is not limited by reference to any such criterion, each and every change to these rates must be regarded as falling with the scope of the obligation under section 3(2).
Similarly, at paragraph 61 Lord Hope that the list of jobs are also rules that must be laid in order to be effective:
The statements that the job must be skilled at N/SVQ level 3 or above, and that the job of a physiotherapy assistant is below that level, set out criteria which have all the character of a rule … Whether the job that the applicant is applying for or occupies is above or below that level will determine whether or not it meets the requirements of the skilled migrant tier. It is a criterion which must be satisfied.
Lord Dyson agrees on everything except whether the details of the market labour test are a substantive requirement: he holds that they are and therefore that they too must be laid before Parliament. Lord Clarke and Lord Wilson agree with Lord Dyson, meaning that this is the majority view.
The implications
The implications in the short and the longer term are both huge. In the short term, the judgments mean that almost all of the requirements in the Policy Guidance, the Codes of Practice and the other satellite documents that accompany the Points Based Scheme have no legal effect. This drives a coach and horses through the thousands of meticulously detailed pages of the PBS.
Further, the judgment must mean that the income and documentary requirements for the new and almost unintelligible Appendix FM to the rules, which sets out the controversial strict new family immigration requirements, are also legally ineffective, at least in part. There has been considerable coverage of the new minimum income threshold of £18,600 for spouses, but what only the lawyers will realise (and not all of them because the rules are such gobbledegook) is that many of the requirements are actually set out in the Immigration Directorate Instructions (IDIs).
For example, the new rules specify that a minimum income of £18,600 is needed, but the rules then merely state that the sources must be of a ‘specified’ sort. An alternative route to bring in a spouse is to show savings of a ‘specified’ amount. The document in which these requirements are ‘specified’ is the IDI, which unlike the rules has not been laid before Parliament. The IDI on finances says that the income must have been at the required level for six months, that it must be from the sponsor not the foreign spouse and all sorts of other things – none of which has any legal effect. All a successful applicant seems to need to do is show some sort of income of £18,600 from any source at all.
The longer term implications are that Parliament now seems likely to legislate to amend the procedure by which immigration rules are made, perhaps removing them from Parliamentary scrutiny altogether, and that the Secretary of State may seek to recover her lost royal prerogative, allowing the criteria for entry to the UK to be chopped and changed at will. How that would square with Theresa May’s attempt to constrain the courts from allowing human rights appeals on the basis that Parliament decides the law is not entirely clear.
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20 responses
If changes to immigration rules can be made outside of parliament scrutiny altogether, we should all be very afraid..that means this country is heading the way of egypt, libya, syria..where very few people have a lot of power.
The whole point of democracy, elected politicians and a parliament scrutinising changes in law is to exactly avoid situations where politicians can go on power-trips and chop and change at will…but brilliant – this govt wants to regress rather than progress..so we can go from a developed nation to an undeveloped one and from a democracy to a dictatorship.
The new FLR 0 form insists upon an English language test from claimants applying on the basis of a child’s long residency. Hopefully that reqirement is a nullity as applicants were not expecting to meet that challenge.
“The longer term implications are that Parliament now seems likely to legislate to amend the procedure by which immigration rules are made, perhaps removing them from Parliamentary scrutiny altogether, and that the Secretary of State may seek to recover her lost royal prerogative, allowing the criteria for entry to the UK to be chopped and changed at will.”
*SHUDDER*
This is what makes me very reluctant to get excited.
“Skilled migrants ruling prompts emergency action by Theresa May”
Alan Travis, home affairs editor
guardian.co.uk, Wednesday 18 July 2012 18.00 BST
=snip=
The Home Office reacted to the ruling by announcing that they were putting a statement of immigration rule changes, including the codes of practice, before parliament on Thursday to come into force by Friday, “in order to safeguard their lawful operation”. Although the Commons has risen for the summer recess, the House of Lords is still sitting and will be asked to approve the changes…
=snip=
Full article: http://www.guardian.co.uk/uk/2012/jul/18/skilled-migrant-ruling-emergency-action
What does this mean? They are going to get this sneaked though into law by Friday?.Can they actually do this?
Wow! Substantial back bench rebellion over changes to the Lords and irrational fear of the Commons losing its primacy to a Lords with a democratic mandate.
… and now the idea that approval “by parliament” includes such by the Lords. So what if the Commons and Lords both voted, each in a different way, which is superior? Or does the Commons then have to override the Lords in this area? Not sure if the Parliamant Acts explicitly provide for that.
This could be one for consitutional lawyers. I certainly don’t know for sure anyway.
But it does seem to raise interesting questions not irrelevant to the Lords issue, on which the gov’t would otherwise currently most likely prefer less discussion rather than more.
Fully agree with BritCit.
It’s about time that the Immigration Act and every rule made under it are repealed and placed in a new, modern, fit for purpose act of parliament. It is not necessary to amend appropriate, ECHR-conform provisions on a daily basis, so changes could entail legislative amendments in the usual fashion.
It seems even if the current gov’t were to do that, the courts would be forced to deal with human rights issues no less than now, it would just be ruling that the provisions of the new act are unlawful. But then Theresa May may grasp that human rights apply to all whether consistent with reducing immigration or not. However surely a brand new act consolidating and making legal all immigration rules would be worthwhile? It could also be drafted in a manner which does not require the reader to have a degree in “Home Offive Linguistics”.
“so changes could entail legislative amendments in the usual fashion.”
How long does the usual fashion take? It would take forever. Surely, the negative resolution procedure offers unmatched expedience and convenience. If we look at all the Statement of Changes laid before Parliament since 1994, the same would have taken forever to go through the “usual fashion.”
If the only benefit of the usual fashion is to get Theresa May to grasp the paramountcy of human rights, then, we are expecting too much of her and any other Home Secretary as they will never understand, whether selectively or not, that human rights apply to all.
This string of cases does not show that the Immigration Act 1971 (as amended) and the Rules in HC 395 are not fit for purpose. The principle enunciated by the case-law can be understood by a 7 year old – i.e. lay everything before Parliament rather than guidance or extraneous sources.
This does not render the legislative framework not fit for purpose because the UKBA is not adhering to it.
Fair enough, matters such as the salary level for tier 2 general or the jobs on the shortage list change relatively often and could be done as now. But the “core” rules, such as what PBS categories there are, what is the English language requirement, they could be in a statute. As is immigration law in several countries. That amendments take a long time is normal in all other areas of law. Imagine if the type or and requirements for family law orders possible under the Children Act were changed regularly by Ministers without parliamentary involvement and scrutiny. I suspect eyebrows would be raised.
So, let me get this straight. The government has just spent that last few months trying to qualify Article 8 into the Rules – i.e. by expressing Parliament’s opinion on where the balance in a proportionality assessment should lie. This was based on the suggestion that Judges cannot be blamed for developing a corpus of caselaw because they never had the benefit of Parliament’s views (suggesting that the current caselaw is useless and almost inviting the Judiciary to start again).
If the Royal Prerogative were to be reclaimed by repealing the Immigration Act and placing matters of immigration policy and control away from Parliamentary scrutiny, the Judiciary (a branch of government…we should never forget) will no longer have the so-called “benefit” of Parliament’s view on where the balance should lie.
It would then become the Crown’s view (emanating from the Prerogative) on where the balance should lie but not Parliament’s view which is necessary under Article 8(2) which makes reference to a “democratic society”.
The Government would then shoot itself in the foot.
Have people seen this:
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/statementsofchanges/2012/cm8423.pdf?view=Binary
Just reading point 3 of the explanatory note (page 290).
“In order to preserve the integrity of the Immigration Rules it is necessary to bring
these changes into force with immediate effect.”
Can’t see anything new on this at the BBC or Guardian. Has the House of Lords now voted on this as the article linked above by Exiled Expat suggested?
Does this mean they have side stepped Alvi?
Thanks, Ash,
My oh, my, how did they get it drafted so quickly? Unless, of course, they had it prepared in advance of yesterday’s judgement ‘just in case’. In which case, they surely must have known well in advance, when they were drafting the rules/guidelines themselves, that they were likely to be breaking the law?
Please correct me if I’m wrong but doesn’t the new ‘scrutiny’ that’s been required by the Supreme Court mean the newly amended rules (as posted by Ash above) have to at least go through the negative resolution procedure and not just sat briefly for a day on a table in the House of Lords?
Additionally, if a Lord (Lord Judd, for example) “prays” against these new rules, doesn’t that mean a debate has to be had over them?
http://www.parliament.uk/site-information/glossary/negative-procedure/
http://www.publications.parliament.uk/pa/cm/cmsilist/section-c.htm#c-1
Well this was mu concern, as to the quick action. It is highly unlikely to prepare the 298 pages draft over night. The other concern is the scruteny by the parliament. The fact of the matter is that their should be debate in both the houses of the parliament and the coillation and opposition should have say as to the legality of the rules, it seem to be unrealistic to scrutnise the changes to immigration so quickly. I therefore backs up ash opinion that they r setting aside the supreme court ruling, and once again ukba is acting arbitrarily.
In addition to above, can some one put somelight on the tier 4 rules as to no work to students who are applied in last few months, can it be challenged on the basis of this judgement, since it might not have been laid in parliament before tier 4 rules are implemented ? thanks
“Home Office ministers said the immediate rule changes means that the position has not changed for those currently making applications for visitor, skilled migrant or family visas. Guidance is to be issued SHORTLY on visa applications that were refused under the previous rules. This could involve cases that date back to 2008.
”
When is this SHORTLY? Anyone?