Why the UKBA's first "interim cap" was unlawful
21 January 2011
There has been a series of challenges to the lawfulness of the Government's points-based system since the Court of Appeal's judgment in Secretary of State for the Home Department v Pankina (2010) EWCA Civ 719, (2010) 3 WLR 1526 which came out in June of 2010.
Most recently, as noted on this site on 19 December 2010, the Secretary of State for the Home Department lost in the challenge to the legality of the implementation in the Immigration Rules of the "interim cap" to immigration under Tier 1 (General) and Tier 2 (General) of the points-based system.
On 28 May 2010 the new Secretary of State told Parliament that it was necessary to have an interim cap so that there would not be a surge in applications under Tiers 1 and 2 before she announced the figures for the permanent cap later in the year.
The interim cap was introduced therefore by two statements of changes in the Immigration Rules, HC 59 on 28 June 2010 and HC 96 on 15 July 2010. HC59 said that the Tier 1 limit would be published on the UK Border Agency website where the monthly visa allocation could be found. The application process and how Tier 1 visas would be allocated was also explained.
HC 96 stated that the Secretary of State would be entitled to limit the "certificates of sponsorship" assigned to Tier 2 licensed sponsors. This limit would be specified in the points-based system guidance and not – significantly – in the Immigration Rules. (However the guidance which was published didn't in fact contain the interim limit.)
Instead the guidance only said that the UK Border Agency was introducing an interim limit on Tier 1 and 2 applications, and that the intention was to reduce these categories by five per cent.
The Tier 2 figure was worked out by reference to the number of certificates of sponsorship which each individual Tier 2 Sponsor's had issued over previous months. It was said that some sponsors would see a reduction in the number of certificates issued to them. Sponsors were informed of this.
As the Court makes clear in its judgment the intention was plainly to enable the Secretary of State to change the limits by altering what it said on the website or by amending the Guidance.
It has to be said that that principle – put the framework in the Rules then change the guidance as you wish – is what the UK Border Agency has obviously always hoped it would be able to do with the points-based system.
In their judicial review application the Joint Council for the Welfare of Immigrants (JCWI) and English Community Care (ECC) said that the Rules were unlawful because the limits they introduced were criteria for entry clearance. Those criteria were not published in the Immigration Rules themselves – an identical point to that which had succeeded in the Court of Appeal in the Pankina case - and so Parliament had not approved them.
Perhaps unsurprisingly the UKBA lost once more. As it said the Administrative Court had to follow the Pankina judgment but Lord Justice Sullivan also said that he would have quashed the decision anyway. The law was clear – immigration rules had to be approved by Parliament. This limit was a criterion which the Secretary of State wanted to include but she had sidestepped Parliament in her attempt to implement it.
The Court concluded that:
"no interim limits were lawfully published or specified by the Secretary of State for either Tier 1 or Tier 2" by HC 59 or 96.
The Secretary of State for the Home Department is applying for permission to appeal to the Supreme Court.
As we reported here - four days after the judgment was given the Secretary of State quickly put a new Statement of Changes in the Immigration Rules before Parliament (HC 698) in which she closed the Tier 1 (General) category of the points-based system to applications for entry clearance and specified the level of the Government's interim limit for Tier 1 in the Immigration Rules themselves.
The reason for closing applications for entry clearance completely is tied up with the fact that the Secretary of State is applying for permission to appeal against the Divisional Court's judgment. If she were to be granted permission and indeed to win in the Supreme Court – her interim limit for Tier 1 would always have been lawful. The nature of the limit is that any application which if granted would exceed the monthly limit must be refused. She therefore has to take account of all the applications already received and consider whether if they were granted at the previous rate there would or would not already be so many visas that the limit would be exceeded. In the light of all that, the Secretary of State has said, it makes sense to stop applications all together.
So from 21 December 2010 all references in Immigration Rule 245C to entry clearance are deleted.
It is anticipated that there will be more challenges to the points-based system like this one, which has further clarified what is illegal about the system.
Most recently, as noted on this site on 19 December 2010, the Secretary of State for the Home Department lost in the challenge to the legality of the implementation in the Immigration Rules of the "interim cap" to immigration under Tier 1 (General) and Tier 2 (General) of the points-based system.
On 28 May 2010 the new Secretary of State told Parliament that it was necessary to have an interim cap so that there would not be a surge in applications under Tiers 1 and 2 before she announced the figures for the permanent cap later in the year.
The interim cap was introduced therefore by two statements of changes in the Immigration Rules, HC 59 on 28 June 2010 and HC 96 on 15 July 2010. HC59 said that the Tier 1 limit would be published on the UK Border Agency website where the monthly visa allocation could be found. The application process and how Tier 1 visas would be allocated was also explained.
HC 96 stated that the Secretary of State would be entitled to limit the "certificates of sponsorship" assigned to Tier 2 licensed sponsors. This limit would be specified in the points-based system guidance and not – significantly – in the Immigration Rules. (However the guidance which was published didn't in fact contain the interim limit.)
Instead the guidance only said that the UK Border Agency was introducing an interim limit on Tier 1 and 2 applications, and that the intention was to reduce these categories by five per cent.
The Tier 2 figure was worked out by reference to the number of certificates of sponsorship which each individual Tier 2 Sponsor's had issued over previous months. It was said that some sponsors would see a reduction in the number of certificates issued to them. Sponsors were informed of this.
As the Court makes clear in its judgment the intention was plainly to enable the Secretary of State to change the limits by altering what it said on the website or by amending the Guidance.
It has to be said that that principle – put the framework in the Rules then change the guidance as you wish – is what the UK Border Agency has obviously always hoped it would be able to do with the points-based system.
In their judicial review application the Joint Council for the Welfare of Immigrants (JCWI) and English Community Care (ECC) said that the Rules were unlawful because the limits they introduced were criteria for entry clearance. Those criteria were not published in the Immigration Rules themselves – an identical point to that which had succeeded in the Court of Appeal in the Pankina case - and so Parliament had not approved them.
Perhaps unsurprisingly the UKBA lost once more. As it said the Administrative Court had to follow the Pankina judgment but Lord Justice Sullivan also said that he would have quashed the decision anyway. The law was clear – immigration rules had to be approved by Parliament. This limit was a criterion which the Secretary of State wanted to include but she had sidestepped Parliament in her attempt to implement it.
The Court concluded that:
"no interim limits were lawfully published or specified by the Secretary of State for either Tier 1 or Tier 2" by HC 59 or 96.
The Secretary of State for the Home Department is applying for permission to appeal to the Supreme Court.
As we reported here - four days after the judgment was given the Secretary of State quickly put a new Statement of Changes in the Immigration Rules before Parliament (HC 698) in which she closed the Tier 1 (General) category of the points-based system to applications for entry clearance and specified the level of the Government's interim limit for Tier 1 in the Immigration Rules themselves.
The reason for closing applications for entry clearance completely is tied up with the fact that the Secretary of State is applying for permission to appeal against the Divisional Court's judgment. If she were to be granted permission and indeed to win in the Supreme Court – her interim limit for Tier 1 would always have been lawful. The nature of the limit is that any application which if granted would exceed the monthly limit must be refused. She therefore has to take account of all the applications already received and consider whether if they were granted at the previous rate there would or would not already be so many visas that the limit would be exceeded. In the light of all that, the Secretary of State has said, it makes sense to stop applications all together.
So from 21 December 2010 all references in Immigration Rule 245C to entry clearance are deleted.
It is anticipated that there will be more challenges to the points-based system like this one, which has further clarified what is illegal about the system.
