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English UK challenge successful
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Firstly, I am well aware that this blog is seriously behind with a lot of the developments that have taken place in the last fortnight. And a lot has happened. I’ve actually read more or less everything now (iPad + public transport to far flung courts = well-read but pretentious and readily-muggable immigration geek). Expect lots of activity next week as the blog catches up.
First on the list is the successful challenge by English UK to the increase in the minimum level required for future foreign students of the English language. The case is R (on the application of English UK Ltd) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin). Penningtons, the firm instructed in the case, were kind enough to drop me a line about it previously. Well, they won.
Similarly to Pankina (covered here), the challenge was successful on the way in which the change was brought about, through guidance rather than through proper immigration rules. The other grounds failed. This does leave it open for the new Government to re-introduce the change by full immigration rules, but it may cause them to re-think the change while they work on a less back door means of limiting foreign student numbers. This seems right and proper: if they are going to take measures to limit numbers, it should be done openly and not through the back door, as with the increase in the foreign spouse age rules and these increased English language requirements.
I can’t say that I understand the judge’s finding that the original guidance is still lawful if the changed guidance is not because it was introduced in an unlawful way. The original guidance was introduced in exactly the same way, as far as I can see.
The reaction of the Home Office to this and Pankina will be interesting. I’ve heard that the Home Office is appealing Pankina, but if that appeal fails the whole Points Based System either has to be abandoned, implemented properly through the Immigration Rules or the primary legislation needs to be changed. As there is a new consolidating Act on the way, it may well be that the third of these options is preferred.
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8 responses
Difficult to know on what basis Pankina will be appealed. Sedley seems to have it pretty tightly sewn up.
I love my iPad, and am thinking of the many ways to use it at work once I convince someone to give me a job, if the courts had decent wifi and you had the right software and a stylus your case files would never have to come out of your bag.
Also…getting rid of the ‘Aging’ bit of my name…I’m only 32!
I’m not going to say anything about the points based system as I would struggle to stop once I started. But I’m sure someone did try to point out to them the problems on relying on guidance rather than primary or secondary legislation….they still paid me off though :)
You say: heard that the Home Office is appealing Pankina, but if that appeal fails the whole Points Based System either has to be abandoned, implemented properly through the Immigration Rules or the primary legislation needs to be changed.
Can you explain this to me? I am a journalist based in the UK writing for an Indian agency.
Tks
Venkata Vemuri
vevemuri@gmail.com
Thanks for your comment and for reading the blog.
I’m not sure how much further I can explain. The PBS exists largely in quasi-legal documents referred to as ‘policy guidance’. This can be changed by the Government whenever it chooses, and indeed it is in fact very frequently changed. The Court of Appeal held that it is unlawful to control immigration by such informal means, because the law that creates our system of immigration control requires that any rules controlling immigration are laid before Parliament.
The Government is appealing this decision. If it wins, there is no need to change anything, perhaps. If it loses, it needs to either abandon the PBS and revert to something more akin to the previous system of rules or it needs to set out all of the PBS rules and regulations properly in the formal Immigration Rules, which have to be laid before Parliament and therefore cannot be changed at whim. Alternatively, they could tear up the existing Act of Parliament that creates the legal requirement of formally laying rules before Parliament and legislate to make it easier to change immigration rules and regulations. There is a new Immigration Act that civil servants have been working on for a couple of years now, so they could easily prefer this latter option.
Going on past performance the grounds are likely to be “it’s not fair give me my toys back” rather than taking a serious look at what the case says and the implications.
But then I said elsewhere, the UKBA is broken and dysfunctional so you can expect little else.
Pankina got me as excited as Chikwamba did back in 2008. I am glad we have our independent-ish judiciary to stop the excesses of the executive every now and then. Warms the cockles of the heart, so it does :)