(Alvi) v Secretary of State for the Home Department  UKSC33
On 18 July 2012, the Supreme Court ruled that the decision in 2009 to deny a visa extension to Hussain Zulfiquar Alvi, a former student, to allow him to continue working in the UK was flawed because it was based on UKBA guidance that had not been put before Parliament, as required by the 1971 Immigration Act. The full transcript of the case is available here.
The Supreme Court maintained that substantive changes affecting immigration applications must be laid before parliament. It called into question the legality of some rule changes affecting applicants under the points based system since 2008, which were not laid before parliament but merely added into UKBA guidance documents. This follows the line of legal arguments in previous cases such as R (English UK Ltd) v Secretary of State for the Home Department  EWHC 1726 (Admin), upon which Penningtons' immigration team acted. Please click here for information on this case.
In response the Government has sought to put to bed the argument that its guidance is distinct from the immigration rules because it is not subject to parliamentary scrutiny, by incorporating the guidance into the immigration rules. A new Statement of Changes to the immigration rules was laid on 19 July and became effective on 20 July.
The Statement of Changes includes the following specific points:
- guidance on documentation requirements for evidence of an applicant’s status, which was previously external to the immigration rules (ie in policy guidance documents or as a list on the UKBA website), is now fully incorporated into the rules;
- SOC Codes and the required Resident Market Labour Tests are incorporated into the rules;
- the shortage occupation list is now incorporated into the rules;
- approved Tier 5 Government Authorised Exchange schemes are now incorporated into the rules. However, the criteria applied by the respective schemes has still not been incorporated and therefore remains outside the rules;
- lists of financial institutions which do not satisfactorily verify financial statements are now incorporated into the rules;
- approved English language tests are now incorporated into the rules; and
- appendix FM, relating to the recent family migration changes, has been amended to correct some referencing issues and, in keeping with point 1 above, the specified evidence requirements are now incorporated.
To view the Statement of Changes, please click here.