A recent decision of the Supreme Court in an immigration case has already had a significant impact on how immigration controls are applied.
The judgment in the appeal case of R (on the application of Alvi) v Secretary of State for the Home Department ( UKSC 33) was delivered on 18 July. The Supreme Court dismissed an appeal by the Home Secretary against an earlier Court of Appeal decision which overturned a decision to refuse Mr Alvi a visa extension under Tier 2 (general) of the points based system.
The decision turned on the distinction between the immigration ‘rules’, which are made under the Immigration Act 1971 and subject to review by Parliament, and ‘guidance’ on those rules which is issued from time to time by the UKBA without Parliamentary review.
Mr Alvi’s application for a visa extension was rejected because his job as an assistant physiotherapist was below the required NVQ level 3. This requirement was contained not in the immigration rules themselves, but in the accompanying guidance for sponsors. The Court’s view was that any requirement which was determinative of someone’s entitlement to a visa must be regarded as a ‘rule’, and thus should be subject to Parliamentary scrutiny in accordance with the provisions of the Act. As the requirement which was applied to Mr Alvi was contained in guidance only, it was unenforceable and his visa application should have been granted.
In its detailed judgement the Court made some fairly critical comments about the Home Office’s micromanagement of immigration controls, whilst acknowledging that the need to follow existing Parliamentary procedures for every change in the guidance will be extremely burdensome. The Court recommended a wholesale review of how immigration law and policy is applied.
In response to the ruling the Home Office acted swiftly by rushing through a number of changes to the Immigration Rules, so that much of what was previously in guidance has now become Rules.
Parliament was not given the usual 21 days to consider the Statement of Changes to the Rules because of the Home Secretary’s view that in order to preserve the integrity of the Rules it was necessary that the Statement came into force immediately.
Despite the Home Secretary’s insistence that the move will have no effect on the way immigration applications are decided, some important amendments have been made. These include making the Shortage Occupation List and sponsor guidance surrounding the application of the Resident Labour Market Test part of the Rules. This includes occupational codes of practice that used to provide assistance on salary and the appropriate way a sponsor should advertise a job.
In addition, the list of approved English language tests previously published on the UKBA website has now been incorporated into the Rules. Guidance in other areas such as financial evidence and family applications have also become Rules.
The Home Secretary also announced that she is to review the entirety of the Rules, including the recent changes, and give a report to Parliament on her findings within 5 years. This is to continue every fifth anniversary. This is perhaps not what the Supreme Court had in mind when it suggested an extensive re-examination of immigration controls.