PANKINA: THE FINAL CHAPTER…

20 July 2012

The Supreme Court has now delivered its judgment in the Secretary of State’s appeal against the Court of Appeal’s judgment in R (Alvi) v Secretary of State for the Home Department [2011] EWCA Civ 681, thus upholding the Court of Appeal’s judgment in Pankina (Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719, [2011] Q.B. 376).

The court found that the Secretary of State’s decisions were unlawful because they relied upon criteria for admission to the UK or for permission to stay in the UK which were not included in the Immigration Rules, but which were included in other documents issued by the UKBA which are only referred to in the Rules such as guidance or policies.

Guidance and policies of the Secretary of State are not put before parliament and so do not amount to legal requirements. Equally, they can be changed at the Secretary of State’s will, giving rise to a degree of uncertainty.

It is now clear that all substantive requirements for immigration control must be laid before parliament in the form of Immigration Rules pursuant to section 3(2) of the Immigration Act 1971, and it is unlawful to incorporate such substantive requirements into guidance or policy documents.

It was previously considered that this principle applied only to the substantive criteria for entitlement for leave to enter and remain in the UK and not, for example, the requirements for colleges sponsoring student visas under the Tier 4 scheme (see: R (New London College) v Secretary of State for the Home Department [2012] EWCA Civ 51) where there was only an indirect effect on the students. (The New London College case is awaiting a decision on whether permission to appeal to the Supreme Court will be granted).

The issue had also arisen in other contexts, for example relating to the requirements to (i) have specific amounts of funds for specific periods of time in order to qualify for leave (Pankina); or (ii) provide a minimum academic level of educational course (R (English UK) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin); or (iii) implement limits on the number of visas granted by the Secretary of State for certain categories of applicant (R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2010] EWHC 3524 (Admin)).

At the same time as delivering judgment in Alvi, the Supreme Court also delivered judgment in R (on the application of Munir and another) (Appellants) v Secretary of State for the Home Department (Respondent) on appeal from [2011] EWCA Civ 814. This was an appeal by the Claimant and not by the Secretary of State as in Alvi. In Munir the Supreme Court held that concessions and policies did not have to be incorporated into the Immigration Rules where they allowed for a degree of flexibility in their application and did not amount to a "practice to be followed”.

This judgment of the Supreme Court in Alvi is important, not simply because it is a decision of the highest court in England and Wales, but because the effect of the decision is to safeguard the very principle of democracy and uphold the constitutional separation of the Executive and the Legislature.

It also has huge practical implications as the introduction of the whole of the Points-Based System in 2009 was based on the requirements as stated within guidance documents. Hence the result of this Supreme Court judgment would have required a rethink by the Secretary of State in any event. However, with the vast changes brought in as recently as 9 July 2012, yet further requirements were contained in guidance such as the Appendix FM (see recent blog posts here).

The result has been a further 288 pages of changes to the Immigration Rules impressively presented to parliament on 19 July 2012 (the day after the Supreme Court judgment) and coming into force today, 20 July 2012.

If lack of legislative scrutiny was the major concern which initiated all this litigation, one could be forgiven for wondering whether the introduction of these changes, coming into force the day after they had been laid before parliament, without respecting the usual 21-day period, has really just missed the point.