Several newspapers have recently reported that the Joint Council for the Welfare of Immigrants (JCWI) is seeking a judicial review of the Coalition government’s decision to issue a temporary cap on “economic migration”.
The government achieved this limitation by issuing two statements of changes in the Immigration Rules. The first – HC 59 brought in a change to the criteria for entry clearance as a Tier 1 (General Migrant). It introduced the concept of a “grant allocation period” and altered Rule 245 of the Immigration Rules. HC59 was laid before Parliament on 28 June 2010. Its changes took effect on 19 July 2010.
The effect of the change is that to succeed in an application for a visa to enter the UK as a Tier 1 (General Migrant) applicants not only have to meet the requirements of the Rule but additionally granting their application must not mean that the allocated number of such grants of entry clearance or leave to remain would be exceeded for the particular period. If it would exceed the grant allocation for that period the application will be put over until the next grant allocation period.
The second change brought in by HC 96 directly affected UK businesses by limiting the amount of Certificates of Sponsorship which a licensed Tier 2 Sponsor can issue. This means that businesses which depend on skilled workers from outside the European Union (EU) have been unable to recruit such workers if their allocation of Certificates of Sponsorship has been used up. The restriction has also been in force since 19 July 2010.
These caps are interim measures taken before a permanent annual limit on immigration from outside the EU is introduced in April of 2011, to meet a policy pledge which the Coalition made shortly after the General Election in May.
These measures have proved controversial, especially the restriction on UK businesses’ ability to recruit staff to meet their needs at a time when recovery from recession is seen as a possibility.
There has been a chorus of disapproval from senior heads of industry as well as an indication from the Coalition’s Secretary of State for Business, Vince Cable, that he recognises the harm that may be being done.
What was striking about the means whereby they were achieved was the Government’s statement (regarding the second set of changes) which accompanied HC96.
"The Government regrets that 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.”
Only a little before these statements of changes bringing in the immigration limits the Court of Appeal had issued its judgment in Pankina and others v Secretary of State for the Home Department [2010] EWCA Civ 719. Central to the Court of Appeal's reasoning in that case was that Parliament had not approved the points based system regime. Instead it was largely comprised of guidance which had not been placed before Parliament and consequently did not have the force of the Immigration Rules.
The Court said of the procedure whereby Immigration Rules have to be approved by Parliament;
"It [the Crown - i.e. a Secretary of State] can make law only with the authority of Parliament. It follows that only that which enjoys or secures Parliament's authority, in the present instance by the absence of a negative resolution within 40 days after laying, is entitled to the quasi-legal status of immigration rules."
It doesn't therefore seem surprising that in seeking to enforce an immigration limit
before the required 40 days had passed, the government has found itself challenged on constitutional grounds once again.
It is understood that the case will be heard on 10 October 2010.