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New Immigration Rules brought in immediately


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Following the Supreme Court decisions in the cases of Munir and Alvi, as reported on this blog yesterday, the UK Border Agency has acted suspiciouslyextremely quickly: see the Statement of Changes CM 8423 dated 19 July 2012, to come into force on 20 July 2012. All 296 pages of it.

See also Hansard HC 18 July 2012 Col WS49, for the Statement of Lord Henley, the Minister of State (Home Office):

We recognise the complexity of the system and we will therefore undertake a more substantial review of the rules and consider how they can be simplified. The Migration Advisory Committee is currently reviewing the Codes of Practice which this judgment requires are included in the rules and we expect a shorter, updated version to be available for inclusion in due course.

The immediate changes to the rules will mean that for applicants under the visitor, PBS and family route the position has not changed. They are required to meet the requirements of the rules and provide the specified evidence that they meet those requirements. The evidence will now be specified in the rules rather than in guidance.

This effectively mirrors the ‘Pankina times’: the ‘Codes of Practice’ applicable will now be placed within the rules themselves for the avoidance of doubt.  All doubt.  For now.

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Sanaz Saifolahi

Sanaz Saifolahi is a barrister at Goldsmith Chambers. She is well regarded for her thorough case preparation, effective advocacy and personable nature. Sanaz is also an assessor for the Law Society ‘Immigration Law Advanced’ Accreditation Scheme.


8 Responses

  1. In the explanatory note, they state:

    “3.2 The Government regrets that for these changes it has not been possible to comply with the convention that changes should be laid before Parliament no less than 21 days before they will come into force, but invites the Committee to note that these changes have no operational impact on applicants, sponsors or caseworkers. The changes only incorporate existing requirements, currently set out in guidance or lists external to the Immigration Rules, into the Rules themselves to protect against further legal challenge.”

    Is it just a “convention” that they are laid before parliament for no less than 21 days, isn’t it a requirement?

    They continue with:

    “8. Consultation

    8.1 As the effect of these changes is to incorporate into the Immigration Rules the text of requirements which are already specified in guidance and lists external to the Rules,they have not been subject to consultation”

    So, this is how they are avoiding the ‘consultation’ aka scrutiny. Is this not blatantly ignoring the scrutiny which the judges called for multiple times in yesterday’s ruling? If so, how isn’t this contempt?

  2. It is probably just as well that this has been done so quickly.
    I suppose one of the implications of the judgment is that parliament had not agreed the list of occupations for tier 2 and UKBA has been unlawfully granting leave to enter and remain under tier 2 for the last 3 1/2 years.

  3. Gary: not necessarily ‘unlawful’ but possibly ‘outside the Rules’ as the criteria was not set out within the Rules. This is not ‘unlawful’ per se as it has always been within the SSHD’s power to grant leave outside the rules as set out in guidance or otherwise – think Discretionary Leave, Exceptional Leave etc.

    I don’t think that this is the issue here. The core of the issue is that the bones of Tier 2 are set out in the Rules and the meat in guidance. To insist that the meat is binding when it had not met the requirements of the 1971 Act is unlawful.

    Where the judgments make references to unlawfulness, it is not an unlawfulness by virtue of existence of guidance (the UKBA and other public bodies can publish guidance as they please) – it is an unlawfulness of application – i.e insisting that the same is binding.

    @Exiled Expat:

    As to whether it is a convention or a requirement, the only requirement is that Rules be laid under the negative resolution procedure. The procedure itself is ‘convention’ based as far as most of the academic writing that I’ve read. But you would be spot on in saying, I should imagine, that not opting to follow convention may not fulfill the requirement of scrutiny.

    1. So are you saying that all the decisions that the ukba have made regarding pbs applications in the last 3 years were technically outside the rules?

  4. @Fediben Gals: yes…it’s not a completely accurate statement but I think it holds water to some extent and is better than branding those grants of leave as ‘unlawful’ as no grant of leave can be unlawful when it can categorised as a grant ourside the Rules under the 1971 Act. The Shortage Occupation list, the Codes of Practice containg salary requirements, outlining the nature of each job, the skill level required, whether a supervisory role is newded, the working hours etc etc were all contained in extraneous documents.

    It sort of reminds me of the Carers’ policy which operates outside the Rules in the IDI but governs a substantive category from which leave can be granted.

  5. So this has gone through as per the statement of Lord Henley without any actual debate in the normal sense of the word and is in force as of yesterday?

    Fadi Farhat do you, or does anyone else, know if there are issues around the rules/convention of the negative resolution procedure happening in the Lords, it not being an elected chamer where representatives of the people might scrutinise the matter?

  6. Fadi: the SSHD has got the power to grant leave outside the rules, but the leave granted under tier 2 by UKBA was not granted outside the rules. It was granted based on the Rules. The Rules required 50 points but the UKBA could not lawfully give those points based on the guidance and Codes of Practice.

    Theresa May is not going to pursue this for those that satisfied the guidance and Codes of Practice but I do wonder if it will be raised if those that were rejected based on the guidance and CoP start legal cases based on this judgment.

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