R (on the application of Alvi) v Secretary of State for the Home Department
Lord Hope, Deputy President
JUDGMENT GIVEN ON
18 July 2012
Heard on 24, 25 and 26 April 2012
Jonathan Swift QC
(Instructed by Treasury Solicitors)
(Instructed by Malik Law Chambers Solicitors )
|Intervener (Joint Council for the Welfare of Immigrants)|
Richard Drabble QC
(Instructed by Lewis Silkin LLP)
- The respondent, Hussain Zulfiquar Alvi, is a citizen of Pakistan. He was born on 5 November 1977. On 20 September 2003 he entered the United Kingdom as a student, with leave to remain until 31 January 2005. After completing his studies he applied for leave to remain here as a physiotherapy assistant. On 10 February 2005 he was granted leave to remain as a qualifying work permit holder until 10 February 2009. For the next four years he worked as a physiotherapy assistant at a clinic in Kensington.
- On 9 February 2009 Mr Alvi applied for further leave to remain in this country. A few months prior to that date the work permit regime had been replaced by a points-based system. It came into effect on 27 November 2008. So Mr Alvi applied for leave to remain under that system as a Tier 2 (General) Migrant. His application was rejected as invalid on 24 February 2009 because a mandatory section of his application form had not been completed. He re-submitted his application on 24 March 2009. It was refused on 18 June 2009 because the Secretary of State was not satisfied that his salary was appropriate for a job at the required level. On 21 September 2009 Mr Alvi applied for judicial review of the Secretary of State’s decision. On 9 February 2010 the refusal of 18 June 2009 was replaced by a revised decision letter. In that letter it was stated that Mr Alvi did not satisfy the requirements of the Immigration Rules for the relevant category because his job title as an assistant physiotherapist was not of the level of skilled occupations required by the rules.
- The ground of refusal was set out in the letter of 9 February 2010 in these terms:
“On 24 March 2009 you applied for leave to remain in the United Kingdom as a Tier 2 (General) Migrant under the Points Based System (PBS). An official has considered your application on behalf of the Secretary of State.
You have claimed 50 points under certificate of sponsorship, but your clients [sic] job title stated on the application form and Certificate of Sponsorship as Assistant Physiotherapist does not meet as a job role that is above NVQ or SVQ level 3. The codes of practice document at the time of the application stated that this job role is below N/SVQ level 3. You have not therefore been awarded any points under certificate of sponsorship.
Therefore you do not satisfy the requirements of the immigration rules for this category and it has been decided to refuse your application for leave to remain as a Tier 2 (General) Migrant under paragraph 245ZF(e) of the Immigration Rules.”
- Mr Alvi was given permission to apply for judicial review on 17 March 2010. The application was heard on 28 September 2010. It was common ground that his occupation as a physiotherapy assistant did not fall within the list of skilled occupations as required by paragraph 82(a)(i) of Appendix A to the Immigration Rules. The following arguments were advanced on his behalf:
- that he did not need to comply with paragraph 82(a)(i) as he had an existing work permit, so all he had to do was to satisfy the transitional provisions set out in paragraph 83 of the Appendix to which the list of skilled occupations does not apply; and
- that in any event the list of skilled occupations was not part of the Immigration Rules, as the document in which that list was set out had not been laid before Parliament under section 3(2) of the Immigration Act 1971.
- His claim for judicial review was dismissed on 25 October 2010. The Deputy Judge, Lord Carlile of Berriew QC, did not deal expressly with the first of these two arguments but his disposal of the claim shows that he must have rejected it. As for the second argument, his conclusion was that it was not the intention of Parliament that the list of skilled occupations, which was to be found in the UK Border Agency’s website in the Tier 2 Codes of Practice, should be an intrinsic part of the Immigration Rules or subject to specific Parliamentary approval:  EWHC 2666 (Admin), para 31. Mr Alvi was given permission to appeal to the Court of Appeal. On 9 June 2011 the Court of Appeal (the President (Sir Anthony May), Jackson and Tomlinson LJJ) allowed his appeal on the second argument and quashed the Secretary of State’s decision of 9 February 2010 to refuse his application for leave to remain. On 18 November 2011 the Secretary of State was given permission to appeal to this court. Her appeal was heard together with the appeal in R (Munir and another) v Secretary of State for the Home Department  UKSC 32.
The legislative framework
- Section 1(2) of the Immigration Act 1971 provides that those not having a right of abode in the United Kingdom may live, work and settle here by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by the Act. Section 1(4) is in these terms:
“(4) The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.”
Section 3(1), as amended by section 39 of the British Nationality Act 1981 and paragraphs 43 and 44(1) of Schedule 14 to the Immigration and Asylum Act 1999, provides that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of or made under the Act, that he may be given leave to enter or remain for a limited or for an indefinite period and that if he is given leave to enter or to remain in the United Kingdom it may be given subject to conditions restricting his employment or occupation or requiring him to register with the police.
- Section 3(2) of the 1971 Act makes the following provision with regard to the rules mentioned in section 1(4) above. It provides:
“(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).
If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes
be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid).”
It is common ground that the code of practice document referred to in the refusal letter of 9 February 2010, which stated that the appellant’s job role was below N/SVQ level 3, had not been laid before Parliament under this subsection.
- Sections 3A and 3B of the 1971 Act, which were inserted by sections 1 and 2 of the Immigration and Asylum Act 1999, state that the Secretary of State may by order make further provision with regard to the giving, refusing or varying of leave to enter and leave to remain. Section 3C, as substituted by section 118 of the Nationality, Immigration and Asylum Act 2002, confers similar powers on the Secretary of State with regard to the continuation of leave pending a decision to vary. Section 4(1) provides that the power under the 1971 Act to give or refuse leave to enter the United Kingdom is to be exercised by immigration officers, and that the power to give leave to remain in the United Kingdom or to vary any leave is to be exercised by the Secretary of State. Paragraph 1(3) of Schedule 2 to the Act provides that in the exercise of their functions immigration officers “shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given to them by the Secretary of State.”
- Questions as to the meaning and effect of section 3(2) of the 1971 Act lie at the heart of this appeal, and I will have to return to them later. For the time being I note that in Odelola v Secretary of State for the Home Department  UKHL 25,  1 WLR 1230, para 6 Lord Hoffmann said:
“The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum Act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules.”
That case involved a change to the entitlement of persons who had medical qualifications to leave to remain as post-graduate doctors. Previously that entitlement was unrestricted. The issue was whether a statement of changes to the Immigration Rules which confined that entitlement to persons with medical qualifications from UK institutions applied to all cases in which leave had still to be granted, or only to those who had not yet applied. In para 7 Lord Hoffmann said
the rules were not to be construed as creating rights which subsequent rules should not, in the absence of express language, be construed as removing:
“They are, as I have said, a statement by the Secretary of State as to how she will exercise powers of control over immigration. So the most natural reading is that (in the absence of any statement to the contrary) they will apply to decisions that she makes until such time as she promulgates different rules, after which she will decide according to the new rules.”
- The 1971 Act received the Royal Assent on 28 October 1971. Section 3(2) came into force on 1 January 1973: Immigration Act 1971 (Commencement) Order 1972 (SI 1972/1514). Draft immigration rules had been published and were available during the debates on the Bill in Parliament. On 23 October 1972 the Secretary of State laid two sets of immigration rules before Parliament: a Statement of Immigration Rules for Control on Entry (Cmnd 4606); and a Statement of Immigration Rules for Control after Entry (Cmnd 4792). These statements were disapproved after a debate on the floor of the House of Commons on 22 November 1972. But they were the rules under which the Act was administered until two new sets of rules, one for Commonwealth citizens and the other for foreign nationals, were laid on 23 January 1973: HC (1972-1973) Nos 79-82. The current Immigration Rules have their origin in a Statement of Changes in the Immigration Rules (HC 395) which was laid before Parliament on 23 May 1994.
- The system which the Secretary of State operates today in the administration of the 1971 Act is far removed from that which was contemplated at the time when the Bill that became that Act was being discussed in Parliament. The first versions of the rules were 17 and 20 pages long. The 1994 Statement of Changes in Immigration Rules (HC 395) extended to 80 pages. There have been over 90 statements of change since then, and HC 395 has become increasingly complex. The current consolidated version which is available on line from the UKBA website extends to 488 pages. Extensive use is now made of the internet, a system for the dissemination of information to the public that was, of course, unknown 40 years ago. 19 statements of changes in the Immigration Rules have been published on the website since February 2010. There have been four this year, the last of which was in June 2012. The ease with which information on a website can be removed, added to or amended encourages resort to these techniques to a degree that would have been wholly impracticable in the days of the mechanical typewriter. In DP (United States of America) v Secretary of State for the Home Department  EWCA Civ 365, para 14 Longmore LJ lamented, with good reason, the absolute whirlwind which litigants and judges now feel themselves in due to the speed with which the law, practice and policy change in this field of law.
The points-based system
- The points-based system, proposals for which were published in March 2006 and further explained in May 2008, was introduced as Part 6A of the Immigration Rules by a Statement of Change which was laid on 4 November 2008 (HC 1113). The system took effect from 27 November 2008. It applies to non- European Economic Area (EEA) nationals who wish to work or study in the United Kingdom. Tier 1 (General) allows the entry of highly skilled workers who do not need to be sponsored by an employer. Tier 2 (General) applies to skilled workers. They do need to be sponsored. This system replaced the then existing system of work permits. Instead it provides the mechanism by which employers may employ non-EEA workers to fill particular posts which cannot be filled by UK residents or workers from the EEA. As a result of changes which have been made since February 2010, when Mr Alvi’s application was refused, the provisions with which his case is concerned no longer appear under the same numbering on the UKBA website. The numbering that I will be using for the purposes of this judgment is that which was current in February 2010.
- Paragraph 245ZF provides:
“To qualify for leave to remain as a Tier 2 Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.”
Among the requirements listed in that paragraph are provisions which state that to obtain entry clearance or leave to remain a Tier 2 (General) Migrant needs to obtain a total of 70 points, which must include at least 50 points for “attributes”, 10 points for English language skills and 10 points for maintenance. Paragraph 245ZF(e) provides that points for attributes are to be awarded under paragraphs 59-84 which HC 1113 inserted into Appendix A to the Immigration Rules.
- Paragraph 59 of Appendix A restates the requirement that an applicant applying for entry clearance or leave to remain as a Tier 2 (General) Migrant must score 50 points for attributes. Paragraph 60 states that, subject to paragraph 61, available points for entry clearance or leave to remain are shown in Table 10. But in paragraph 61(b) an applicant who, like Mr Alvi, had or was last granted entry clearance, leave to enter or leave to remain as a qualifying work permit holder is told that, in his case, available points for leave to remain are shown in Table 11. Table 10 divides the migrants who may score points under it into four categories, one of which is where the job offered to him passes the resident labour market test.
Among the notes on sponsorship set out under that table is paragraph 71, which states that, in order for the applicant to be awarded points for a job offer that passes the resident labour market test, “the certificate of sponsorship checking service entry must indicate that the sponsor has met the requirements of that test, as defined in guidance published by the United Kingdom Border Agency, in respect of the job.”
- A further set of notes on sponsorship is set out below Table 11. It states in paragraph 81 that paragraphs 63 to 68 of the notes that apply to cases under Table 10 apply in this case also. Paragraph 71 is not mentioned, as the resident labour market test does not apply to cases under Table 11. The notes to this table then include the following paragraph:
“82. No points will be awarded for sponsorship unless:
- (i) the job that the Certificate of Sponsorship Checking Service entry records that the person is being sponsored to do appears on the United Kingdom Border Agency’s list of skilled occupations, or
(ii) the applicant is a Senior Care Worker or an Established Entertainer, and
- (unless the applicant is an Established Entertainer) the salary that the Certificate of Sponsorship Checking Service entry records that the migrant will be paid is at or above the appropriate rate for the job as stated in the list of skilled occupations referred to in (a)(i).”
- The Secretary of State first published Occupation Codes of Practice under the sponsored skilled migrant tier of the points-based system on the website of the United Kingdom Border Agency (“UKBA”) on 17 September 2008. Their main function was to provide guidance to persons who were proposing to sponsor a skilled migrant as to how to meet the criteria that would be applied in determining the application. This is indicated by the following directions which appeared under heading “The process to follow to find the code of practice” on the first page of the introduction:
“The process you should follow to find out if you can sponsor a skilled migrant for your job under this tier is:
- Choose your sector
- Choose the Standard Occupational Classification (SOC) code closest to your job, using the information in the sector table
[Insert drop-down list or menu of all sector pages]
If you already know which SOC code is most appropriate, select the code of practice from the following list:
[Insert drop-down list of all SOC codes that have a code of practice]
Find out the skill level, appropriate rate of pay and how to meet the resident labour market test”
- The Codes contained a list of occupations that were recognised by the Secretary of State as sufficiently skilled to qualify under Tier 2. On the second page of the introduction that was published in 17 September 2008 this explanation is given:
“How the codes have been developed
These codes of practice have been drawn up based on advice from industry experts and the Migration Advisory Committee. They are the official guidance for sponsors and caseworkers.”
The Migration Advisory Committee is a non-statutory public body set up to provide advice to the government and sponsored by UKBA. The codes were divided into sections organised by industry. Section Q dealt with human health and social work activities. On 27 November 2008, when the Statement of Change (HC 1113) took effect, UKBA published a slightly revised version of Occupation Codes of Practice on its website. It contained some changes to the list of skilled occupations and made some other minor amendments to the previous version which had been published on 17 September 2008. In a preface to the list of occupations the following advice was given to sponsors:
“This page explains the codes of practice that you must use to check the skill level and appropriate rate for the job you want to employ the migrant for, in tiers 2 and 5 of the points-based system, and advice on where to advertise the job.
Before you can sponsor a skilled migrant, you need to check that the job you are sponsoring them to do meets the requirements of the skilled migrant tier:
- The job must be skilled at N/SVQ level 3 or above; and
- The job must be paid at the appropriate rate or above; and
- You must normally have carried out a resident labour market test for the job before sponsoring a skilled migrant.
This section contains codes of practice for every occupation. The codes of practice give information on skill levels and appropriate rates, and advice on where to advertise the job. This is so that you can check that the job meets these requirements. If the job does not meet these requirements you cannot issue a certificate of sponsorship.”
- National Vocational Qualifications (NVQs) are competence-based qualifications which are available in England and Wales and Northern Ireland. They teach practical, work-related tasks which are designed to develop the skills and knowledge to do a job effectively and can be studied at work, at a college or as part of an apprenticeship. In Scotland they are known as SVQs. They are available in a wide range of subjects, and there are five levels of award. Level 1 focuses on basic work ability. Level 5 is for senior management. Although these levels are not formally defined in terms of academic equivalents, level 2 can be taken to be equivalent to five GCSEs at A* to C and level 3 to two or more A levels. The codes of practice that were in operation in February 2010 have been replaced by a new set of codes for sponsor organisations and sponsor workers wishing to apply under tiers 2 and 5 of the points-based system on or after 6 April 2012, and the required skill level which was not mentioned in the rules in February 2010 is now stated explicitly in paragraph 77E of Appendix A. A sponsor help document is available on the UKBA website which explains that a certificate of sponsorship is not an actual certificate or paper document but is a virtual document similar to a database record. It has to be created by using the online sponsor management system for each individual who is being sponsored. The description that follows is based on the system that was in operation in February 2010.
- Code 3221 is the section in the Occupation Codes of Practice that applies to physiotherapists. It contains the following information:
“This page explains the skill level and appropriate salary rate for physiotherapists, and tells you how to meet the resident labour market test.”
Under the heading “Skill level” the code sets out the requirement that all jobs are at or above NVQ or SVQ level 3. It then states that the jobs of assistant practitioners, physiotherapists and senior physiotherapists are at or above that level, and that the jobs of physiotherapy assistants and technical instructors are below it. Under the heading “Appropriate salary rate” it sets out the minimum rates of salary for the jobs listed as being above the N/SVQ level 3, derived from the Annual Survey of Hours and Earnings or, where alternative salary data is available, from an alternative code of practice. Under the heading “resident labour market test” reference is made to Jobcentre Plus, to national newspapers, to two professional journals and to 16 websites to which resort may be had for advertising on the internet.
- Mr Alvi’s application was rejected because his job, which is that of an assistant physiotherapist, did not meet the requirement set out in paragraph 82(a)(i) of Appendix A to the Immigration Rules. This was because, although it appeared on the UKBA’s list of skilled occupations, it was not shown on that list as an occupation that was above NVQ or SVQ level 3. This meant that it did not meet the requirement under the Occupation Codes of Practice under the skilled migrant tier that the job must be skilled at N/SVQ level 3 or above. This in turn meant that Mr Alvi could not satisfy the requirement set out in paragraph 245ZF of the Immigration Rules because he could not obtain the minimum number of points under paragraphs 59-84 of Appendix A.
- The question which lies at the heart of this appeal is whether the reference in paragraph 82(a)(i) of Appendix A to “the United Kingdom Border Agency’s list of skilled occupations” was sufficient to satisfy the requirements of section 3(2) of the 1971 Act. Neither the statement in the preface to the list that the job must be skilled at N/SVQ level 3 or above nor the list itself which showed that Mr Alvi’s occupation was below that level formed part of the Immigration Rules as laid before Parliament. Were these provisions “rules” within the meaning of section 3(2) of the 1971 Act? The issue that this question raises is set out in the agreed statement of facts and issues in these terms:
“What is the meaning and effect of section 3(2) of the 1971 Act? Is the decision of the Court of Appeal in Pakina correct: namely, that section 3(2) of the 1971 Act meant that the Immigration Rules could
not lawfully incorporate provisions set out in another document which had not been laid before Parliament, and which was able to be changed after the Rule in question had been laid before Parliament?”
Pankina v Secretary of State for the Home Department  EWCA Civ 719,  QB 376 was the first case to consider the changes effected by the points- based system: see para 43, below.
- Mr Swift QC for the Secretary of State submitted that the question can be broken down into three parts. First, to what extent is it open to the Secretary of State to refer in the rules to matters the details of which are set out in material which is outside the rules themselves? Second, if it is open to the Secretary of State to do this, can those details be changed without laying the changes before Parliament under section 3(2) of the 1971 Act? Third, can the Secretary of State control immigration in ways that are not covered by the Immigration Rules by means of a published policy which is not in conflict with what the rules provide for?
- In response to the issue raised by the first of Mr Swift’s questions Mr Drabble QC, for the Joint Council for the Welfare of Immigrants (intervening, but taking a leading role in the appeal), accepted that it was open to the Secretary of State to refer in a rule to another document which was available when the rule, or a statement of changes in the rules, was laid before Parliament. But it would be so only if the content of that other document was fixed and thus not open to change at the Secretary of State’s discretion without further reference to Parliament. The key question in Mr Alvi’s case, therefore is the second question which Mr Swift identified. Put more precisely to fit the facts of this case, was it sufficient for the Secretary of State to state in paragraph 82(a)(i) that no points would be awarded for sponsorship unless that job for which the person was being sponsored appeared on UKBA’s list of skilled occupations if that list was not fixed but was open to change at the discretion of the Secretary of State?
- But within the second question lies a further question which is really what this appeal is all about. Mr Drabble made it clear that it was not his case that no change whatever could be made to details set out in the other document without laying that change before Parliament. It would be open to the Secretary of State to include in the rule a formula or criterion for making changes which could be applied objectively and could not be the subject of controversy, such as for the adjustment of rates of pay according to the Retail Prices Index. Although he said that he was inclined to say that everything should be laid before Parliament because to do otherwise would enable the Secretary of State to introduce hurdles in the way of applicants which were not subject to Parliamentary scrutiny, it is questionable whether that submission goes too far, given the extent and nature of
all the details set out in the Occupation Codes of Practice on UKBA’s website. But it would not be right for us to hold that it goes too far unless we can say where, and how, the line is to be drawn between those changes which it is open to the Secretary of State to make without reference to Parliament and those that must be subjected to Parliamentary scrutiny.
- The third question is not directly in point in Mr Alvi’s case. It arises in R (Munir and another) v Secretary of State for the Home Department, because the issue in the cases of Mr Munir and Mr Rahman is whether it was open to the Secretary of State to withdraw the so-called 7 year children concession policy in DP5/96 without laying the statement of withdrawal before Parliament under section 3(2) of the 1971 Act. But Mr Swift relied on the points that it raises in Mr Alvi’s case too. He submitted that it was within the power of the Secretary of State to control immigration in ways not covered by the rules. This could be done in the exercise of her common law powers under the prerogative, assuming that this was in ways that were not in conflict with what the rules provide for. He relied in support of this proposition on a passage in the speech of Lord Brown of Eaton- under-Heywood in Odelola v Secretary of State for the Home Department  1 WLR 1230, para 35 where he said that the Secretary of State’s Immigration Rules, as and when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control. This question too must be addressed, as part of the background, in Mr Alvi’s case. But I can do so briefly, as I am in full and grateful agreement with the way Lord Dyson has dealt with this issue in his judgment in Munir, paras 23-33.
Background: the prerogative
- The key question in Mr Alvi’s case cannot be answered satisfactorily without understanding the system that was envisaged when section 3(2) of the 1971 Act was enacted, and the effect that the Act has had on the system of immigration control exercised by the Secretary of State.
- Prior to the enactment of the 1971 Act Parliament did not exercise formal control over the rules and instructions that the Secretary of State issued from time to time for the administration and control of immigration. As Lord Bingham of Cornhill observed in R (BAPIO Action Ltd) v Secretary of State for the Home Department  UKHL 27,  1 AC 1003, para 4, it is one of the oldest powers of a sovereign state to decide whether any, and if so which, non-nationals shall be permitted to enter its territory, and to regulate and enforce the terms on which they may do so. In Rex v Bottrill  1 KB 41, 51 Scott LJ declared that the King, under our constitution, is under no obligation to admit into the United Kingdom, or to retain here when admitted, any alien. Prior to the passing of the Commonwealth Immigrants Act 1962 Commonwealth citizens had the right, in
common with all British subjects, to enter the United Kingdom without let or hindrance when and where they pleased and to remain here as long as they liked: Reg v Bhagwan  AC 60, 80 per Lord Diplock. They were not aliens: Reg v Immigration Appeal Tribunal, Ex p Secretary of State for the Home Department  1 WLR 1126, 1134, per Stuart Smith LJ. But the Secretary of State had unfettered control over aliens in the exercise of the prerogative.
- The exercise of a prerogative power may however be suspended, or abrogated, by an Act of Parliament: Attorney-General v De Keyser’s Royal Hotel  AC 508, per Lord Atkinson at pp 539-540. So a statute which operates in the field of prerogative may exclude the possibility of exercising prerogative powers. Where a complete and exhaustive code is to be found in the statute, any powers under the prerogative which would otherwise have applied are excluded entirely: see, eg, Re Mitchell  Ch 525. Any exercise of a prerogative power in a manner, or for a purpose, which is inconsistent with the statute will be an abuse of power: R v Secretary of State for the Home Department, Ex p Fire Brigades Union  2 AC 513, per Lord Nicholls of Birkenhead at p 576.
- As Lord Bingham observed in Huang v Secretary of State for the Home Department  UKHL 11,  2 AC 167, para 6, successive administrations over the years have endeavoured in Immigration Rules and administrative directions, revised and updated from time to time, to identify those to whom leave to enter and remain should be granted, and such rules, to be administratively workable, require that a line must be drawn somewhere. The Immigration Appeals Act 1969 first introduced the concept of immigration rules and conferred rights of appeal on Commonwealth citizens. By section 8(1)(a)(i) it was provided that an adjudicator was to allow an appeal if he considered that the decision or action in question was not in accordance with the law or with any immigration rules applicable to the case. Section 14(1) enabled provision to be made by Order in Council under the Aliens Restriction Act 1914 for appeals in connection with the powers for the time being exercisable in respect of the admission into and removal from the United Kingdom of aliens. The expression “immigration rules” was defined in section 24(2) as meaning rules made by the Secretary of State for the administration of the control of entry into the United Kingdom of persons to whom the Act applied and the control of such persons after entry. But no provision was made for the laying of those rules before Parliament.
- The 1971 Act was, according to its long title, enacted “to amend and replace the present immigration laws”. One of its main objectives was to assimilate controls over immigrants from Commonwealth countries to the corresponding rules for aliens. Section 1(2) subjected them all to such regulation and control of their entry into, stay in and departure from the United Kingdom as was imposed by the Act. Section 3(1) extended those controls to all persons, including Commonwealth citizens who did not have a right of abode in this country under
section 2 of the Act, who were not patrial. As amended by section 39 of the British Nationality Act 1981, this subsection now extends to everyone who is not a British Citizen. Section 33(5) provides:
“This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative.”
But it is hard to see how that provision, which may have been thought appropriate 40 years ago, can have any practical effect today. One has only to think of the possibility of a challenge under article 5 of the European Convention on Human Rights, which declares that no one shall be deprived of his liberty save in accordance with a procedure prescribed by law. The old order, under which such a sweeping power could be exercised at will by the executive, is now long gone.
- In R v Secretary of State for the Home Department, Ex p Ounejma (1989) Imm A R 75, 80 per Glidewell LJ said that the residual prerogative powers remain, and in Macdonald, Immigration Law and Practice in the United Kingdom 8th ed (2010), para 2.35 it is asserted that the prerogative power is not impaired or superseded, merely put in abeyance. But these propositions understate the effect of the 1971 Act. It should be seen as a constitutional landmark which, for all practical purposes, gave statutory force to all the powers previously exercisable in the field of immigration control under the prerogative. It is still open to the Secretary of State in her discretion to grant leave to enter or remain to an alien whose application does not meet the requirements of the Immigration Rules. It is for her to determine the practice to be followed in the administration of the Act. But the statutory context in which those powers are being exercised must be respected. As their source is the 1971 Act itself, it would not be open to her to exercise them in a way that was not in accordance with the rules that she has laid before Parliament.
- What then is one to make of Lord Brown’s observation in Odelola, para 35 on which Mr Swift relies? Are the Immigration Rules to be seen, as Lord Brown said, as an indication of how it is proposed to exercise the prerogative power of immigration control? Lord Hoffmann’s description of them in para 6 as detailed statements of how the Crown proposes to exercise its executive power to control immigration avoids attributing the source of that power to the prerogative, and it is unexceptionable. Although I said in para 1 of Odelola that I agreed with Lord Brown’s opinion, I think that it must be recognised that his statement as to the source of the power was wrong. The entry to and stay in this country of Commonwealth citizens was never subject to control under the prerogative. The powers of control that are vested in the Secretary of State in the case of all those who require leave to enter or to remain are now entirely the creature of statute. That includes the power to make rules of the kind referred to in the 1971 Act.
- I would therefore hold that Mr Swift’s submission that it is open to the Secretary of State to control immigration in a way not covered by the Immigration Rules in the exercise of powers under the prerogative, assuming that there is no conflict with them, must be rejected. As Lord Hoffmann said in Odelola, para 6, the rules are not subordinate legislation. They are therefore to be seen as statements by the Secretary of State as to how she proposes to control immigration. But the scope of that duty is now defined by the statute. The obligation under section 3(2) of the 1971 Act to lay statements of the rules, and any changes in the rules, cannot be modified or qualified in any way by reference to the common law prerogative. It excludes the possibility of exercising prerogative powers to restrict or control immigration in ways that are not disclosed by the rules.
The negative resolution procedure
- The system that was introduced by the 1971 Act was that control over the content of the Immigration Rules was to be exercised by Parliament. Section 3(2) provides that this is to be carried out under the negative resolution procedure. The Home Secretary, Mr Maudling, explained that there was a case for making the rules subject to Parliamentary control because they would extend to Commonwealth citizens, not just to aliens, and that the negative procedure was chosen in the interests of flexibility: Hansard HC Deb 16 June 1971, cols 482-483. This procedure enables the policy content of the rules to be considered in either House.
- In practice, the merits of all statements of changes to the Immigration Rules are examined by the Secondary Legislation Scrutiny Committee (formerly the Merits Committee) in the House of Lords, which by long tradition has peers who have held high judicial office among its membership. Written and oral evidence may be called for from, among others, the Secretary of State herself. The result of these inquiries is made the subject of a detailed report, in which the changes to the rules may be drawn to the special attention of the House. The Committee aims to do this within 12 to 15 days of laying, so that there is time for members of the House to give the instruments further scrutiny within the 40 day period. Reports of this kind are issued not infrequently: for some recent examples from Session 2010- 2011, see HC 1148 in the Committee’s 35th report; HC 1511 in its 40th report; and HC 1888 in its 58th report. As was noted in R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department  EWCA Civ 3524, para 12, the statement of changes in HC 59 which was laid before Parliament on 28 June 2010 was considered by the Merits Committee in its 4th report for the session of 2010-2011. It was drawn to the special attention of the House on the ground that it gave rise to issues of public policy likely to be of interest to it.
- A statement of changes to the Immigration Rules cannot be amended under this procedure. But it is open to the Committee to call for an extraneous document to which it refers to be produced if it has not been laid already, to raise the question whether it was appropriate for the contents of that document or any part thereof not to be set out in the rules themselves and to require the Secretary of State to explain why this was not done. A motion may be made to enable either House to examine the actions of the Secretary of State, either by means of a motion to disapprove the rules or a motion of regret to enable the issue to be debated. For example, Lord Hunt of Kings Heath moved a motion regretting that the government had not published a comprehensive explanation of the findings from the consultation on Tiers 1 and 2 about significant changes in the Statements of Changes in Immigration Rules (HC 863) to implement the Government’s strategy for reducing non-EEA economic migration. Attention had been drawn to these findings in the 27th Report of Session 2010-2011 from the Merits Committee. His motion was debated in the Chamber and replied to by the Minister of State in the Home Office, Baroness Neville-Jones, on 3 May 2011: HL Deb 3 May 2011, col 409.
- The control that can be exercised by means of this procedure, however diligent and far-reaching, is nevertheless incomplete. It is dependent to a large extent on what the statements of changes themselves provide. The effect of provisions in the external document may not be apparent, and the ability of the Secretary of State to make changes to it without laying a fresh statement of changes before Parliament may not be obvious either. It is also very rare for a motion against an instrument under the negative resolution procedure to be carried. The Secretary of State can be called to account, and may feel that further changes should be made to meet an objection to a Statement of Changes which she regards as having real substance. But she can usually expect her views as to what they should contain to command the support of a majority in either House.
- Moreover, as Lord Hoffmann pointed out in Odelola, para 6, the Immigration Rules create legal rights as, under section 84(1)(a) of the Nationality, Immigration and Asylum Act 2002, a person may appeal against an immigration decision on the ground that it is not in accordance with what they provide. So I do not think that oversight of the content of the rules can be left entirely to Parliament. The rule of law requires that the Secretary of State must fulfil the duty that has been laid on her by section 3(2) of the 1971 Act. In the event of a challenge it is for the courts to say whether or not she has done so. The Asylum and Immigration Appeal Tribunal observed, in its decision in Pankina v Secretary of State for the Home Department (IA 01396-09), para 17, that it would quite easy to say that the provision objected to had been approved by Parliament and to leave the matter there. But, as the tribunal went on to point out, the effect of what was done in that case without laying a Statement of Changes before Parliament was to restrict the substance of the provisions which up to then had been part of the
Immigration Rules, and to prevent some people from satisfying them in their new version.
- I would hold therefore that the courts have a responsibility in this matter too. The right of appeal under section 84(1)(a) of the 2002 Act on the ground that the decision in question is not in accordance with the Immigration Rules would be seriously undermined if it was open to the Secretary of State to change the rules at her own discretion in a way that was to the appellant’s prejudice without laying those changes before Parliament. Although Lord Denning MR said in R v Secretary of State for the Home Department, Ex p Hosenball  1 WLR 766, 781 that the rules do not amount to strict rules of law, section 86(3) of the 2002 Act includes Immigration Rules in the law to which the adjudicator must have regard when determining an appeal: see also section 84(1)(e). The system that the right of appeal relies on assumes that the rules have been made available by the Secretary of State to Parliament for scrutiny in the performance of her duty under the statute.
- In Reg v Secretary of State for Social Services, Ex p Camden London Borough Council  1 WLR 819, 827-828 Slade LJ referred with approval to Macpherson J’s observations in the court below about the technique of reference to outside documents in a statutory instrument. The judge said that, provided the reference was to an existing document and there was no question of sub- delegation, there was no objection to this practice in the eyes of the Joint Committee on Statutory Instruments and that there had been an increasing tendency to resort to this technique. The court’s task was to look to see whether the reference offended against the provisions of the enabling statute and was in truth simply part of the regulations by which the Secretary of State purported to exercise his powers. If that inquiry is negative, then all is well. Any control of the extended use of references which are permissible in their own statutory context was a matter for Parliament and its practices.
- There is, of course, no enabling statute in this case. But the 1971 Act must now be seen as the source of the powers vested in the Secretary of State, and it is the Act which provides the statutory machinery for their exercise. The content of the rules is prescribed by sections 1(4) and 3(2) of the 1971 Act in a way that leaves matters other than those to which they refer to her discretion. The scope of the duty that then follows depends on the meaning that is to be given to the provisions of the statute. What section 3(2) requires is that there must be laid before Parliament statements of the rules, and of any changes to the rules, as to the practice to be followed in the administration of the Act for regulating the control of entry into and stay in the United Kingdom of persons who require leave to enter. The Secretary of State’s duty is expressed in the broadest terms. A contrast may be drawn between the rules and the instructions (not inconsistent with the rules) which the Secretary may give to immigration officers under paragraph 1(3) of
Schedule 2 to the 1971 Act. As Sedley LJ said in ZH (Bangladesh) v Secretary of State for the Home Department  Imm AR 450, para 32, the instructions do not have, and cannot be treated as if they possessed, the force of law. The Act does not require those instructions or documents which give guidance of various kinds to caseworkers, of which there are very many, to be laid before Parliament. But the rules must be. So everything which is in the nature of a rule as to the practice to be followed in the administration of the Act is subject to this requirement. Resort to the technique of referring to outside documents, which the Scrutiny Committee can ask to be produced if it wishes to see them, is not in itself objectionable. But it will be objectionable if it enables the Secretary of State to avoid her statutory obligation to lay any changes in the rules before Parliament.
- In R v Immigration Appeal Tribunal, Ex p Bakhtuar Singh  1 WLR 901, 917-918 Lord Bridge of Harwich said that the rules, as they stood at that time, frequently offered no more than broad guidance as to how discretion was to be exercised in different typical situations. That is no longer true. The introduction of the points-based system has created an entirely different means of immigration control. The emphasis now is on certainty in place of discretion, on detail rather than broad guidance. There is much in this change of approach that is to be commended. But the rigidity and amount of detail that comes with it has a direct bearing on the scope for an appeal against a decision that is adverse to the applicant. As the content of the rules will determine the scope of any appeal under section 84(1)(a) of the 2002 Act, it is all the more necessary to achieve clarity as to what must be in the rules and what need not be. The increasing complexity of the system and the resort to modern technology for its administration, for which detailed instructions have to be given to those who wish to make use of it, makes this a difficult exercise.
The Pankina line of cases
- The first case to consider the changes effected by the points-based system was Pankina v Secretary of State for the Home Department  EWCA Civ 719,  QB 376. In that case Sedley LJ said in para 21 that the Parliamentary intention which lay behind the requirement that the rules must be laid before it was that the rules were being elevated to a status akin to that of law, and that it followed that only that which secured Parliament’s authority by the absence of a negative resolution within 40 days after laying was entitled to the quasi-legal status of Immigration Rules. I shall attempt in the following paragraphs to summarise the way successive judges have attempted to apply that basic principle to a variety of objections raised by claimants whose applications have been refused on grounds that required reference to be made to material that was not disclosed in the rules themselves.
- The point in Pankina’s case related to the requirement that an applicant for leave to remain as a post-study migrant must have sufficient funds to maintain himself. Detailed maintenance provisions were set out in a Statement of Changes (HC 607). Paragraph 2 of Appendix C to the Immigration Rules (later amended by HC 1113 by inserting a new paragraph 1A) provided that the migrant must be able to show £800 in his bank account for “a period of time set out in the guidance” and to provide the specified documents, those being the documents specified by the Secretary of State in the policy guidance for the route under which the applicant was applying. Failure to produce those would mean failure to meet the requirement. The Secretary of State issued guidance within the period of 40 days while HC 607 was still before Parliament, but the guidance was not itself laid. It was stated in the guidance that the specified documents were personal bank accounts and building society statements showing that the applicant had held at least £800 for the three months immediately prior to the date of the application. The Court of Appeal affirmed the decision of the Asylum and Immigration Tribunal (see para 43, above). It held that the only relevant criterion was that the applicant should have £800 at the time of the application. As the policy guidance could be changed at any time in the discretion of the Secretary of State, the requirement that £800 must be held continuously for the three month period did not form part of the Immigration Rules and was of no effect.
- In giving his reasons for this decision, with which Rimer and Sullivan LJJ agreed, Sedley LJ accepted that there was no absolute rule against the incorporation by reference of material into a measure which has legal effect, even when the measure is required to be laid before Parliament: para 24. But the case for the Secretary of State was that the requirement in the policy guidance that £800 had to be held during the three month period was by incorporation part of the Immigration Rules. That in itself required the three-month criterion to form part of the rules laid before Parliament. But the critical point was that the requirement was open to change at any time. That meant that a discrete element of the rules was placed beyond Parliament’s scrutiny: para 29. In para 31 he said that the statutory recognition of rules which are to have the character and, on appeal, the force of law required them to be certain. That did not shut out extraneous forms of evidence of compliance, so long as they were themselves specified. But it did shut out criteria affecting an individual’s status and entitlements which had not themselves been tendered for parliamentary scrutiny and, even if ascertainable at that point of time, might be changed without fresh scrutiny: para 33.
- The decision in Pankina was soon followed by a number of other similar challenges. In R (English UK) v Secretary of State for the Home Department  EWHC 1726 (Admin) the issue related to a provision in paragraph 120(a) of Appendix A which provided that one of the requirements that had to be met to obtain the requisite points was that the course must meet the minimum academic requirements as set out in sponsor guidance published by UKBA. The minimum
level of course specified in the guidance was later altered by specifying a different level of course as the minimum. Having considered Pankina, Foskett J said that its ratio appeared to him to be that a provision that reflected a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involved a true Parliamentary scrutiny, and that there was no doubt that the changed approach in the new guidance did operate to change materially the substantive criteria for entry for foreign students who wished to study English in the United Kingdom.
- The next case to reach the administrative court was that of Mr Alvi:  EWHC 2066 (Admin). As already noted in para 5 above, Lord Carlile of Berriew held that it was not the intention of Parliament that the skills list in the UKBA’s list of skilled occupations should be an intrinsic part of the Immigration Rules or subject to specific Parliamentary approval. In para 29 he said that it should be borne in mind that the list of skilled occupations was a very large volume that would require to be amended and added to from time to time and would not be suitable for inclusion in the rules. It was enough that it was referred to in the rules, which were approved by Parliament. In para 31 he said that it would be unrealistic to require every job and skill to be listed in detail in the rules themselves and that this was certainly not a legal requirement.
- In R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department  EWHC 3524 (Admin) the issue was directed to a provision in the statement of proposed changes HC 59 relating to applications under Tier 1 of the points based system. Among the changes it introduced was a provision which enabled a limit to be set on the number of grants of entry clearance or leave to enter which might be granted in respect of a particular route during the relevant grant allocation period. It was stated that the interim limit for the purposes of Tier 1 would be published by the Secretary of State on UKBA’s website. The fact that the actual limit to be imposed was not in the statement itself was the subject of adverse comment by the Merits Committee in the House of Lords in a report which was published on 16 July 2010. The information that was available on the website at that date did not disclose what the actual limit was. But on 15 October 2010, in response to a query as to what the limit actually was, UKBA amended its website to include the information that it was administering the limit on a monthly basis and that the limit was 600 issued Tier 1 (General) visas every calendar month. Similar information about limits on numbers which had not previously been disclosed was published with regard to Tier 2. The claimants challenged the lawfulness of the interim limits for Tier 1 and Tier 2 on the ground, among others, that the manner in which the limits were imposed was unlawful in the light of the decision in Pankina.
- Sullivan LJ noted in para 38 that the court was bound by Pankina. But he said nevertheless that he would follow it, even if not bound. In para 42 he said that
he accepted the argument that there was a spectrum, and that in enacting section 3(2) Parliament did not intend that every alteration to the Secretary of State’s practice, however minor, should be subject to the scrutiny of Parliament. But, accepting that there was a spectrum, both the overall limit and any changes to it were a critically important part of the rules: para 46. What the material that had been laid before Parliament failed to do was to specify the limits that were being applied to individual sponsors. It followed that no interim limits were lawfully published or specified by the Secretary of State for either tier and that there was not, and never had been, a limit on the number of applicants who might be admitted under either Tier 1 or in the number of certificates of sponsorship that might be issued to Tier 2 sponsors: para 47.
- There then followed the decision of the Court of Appeal in the present case:  EWCA Civ 681. The test that was applied by Jackson LJ, with whom the President and Tomlinson LJ agreed, was whether the specification of jobs as falling within paragraph 82(a)(i) of Appendix A was a “substantive” matter rather than a “minor” alteration to the Secretary of State’s practice. He held that there was no doubt that the governing principle set out in the list that all jobs which qualify under section Q were at or above NVQ or SVQ level 3 was a substantive matter which had to be set out in the rules if it was to be valid.
- In R (Ahmed) v Secretary of State for the Home Department  EWHC 2855 (Admin), para 39 Singh J said that it seemed to him that the governing principle laid down by Pankina as understood and applied in subsequent cases was that a substantive or material change to the content of the Immigration Rules must be made by way of amending rules which must be laid before Parliament, and that it was not permissible to cross-refer to the possibility of further substantial or material changes in documents such as policy guidance statements which are not subject to the negative resolution procedure. In para 41 he said that the distinction was between the substantive requirements that an applicant has to meet and the means of proving such eligibility which can properly be the subject of policy guidance. In R (Purzia) v Secretary of State for the Home Department  EWHC 3276 (Admin) Ian Dove QC, sitting as a Deputy Judge of the High Court held at para 17 that there is a spectrum that operates on the extent to which the requirement is substantive at one end of the spectrum and or relates to matters that are procedural at the other.
- In R (New London College Limited) v Secretary of State for the Home Department  EWCA Civ 51 the issue was whether the removal of a Tier 4 General (Student) Sponsor Licence issued by UKBA which enabled it to issue a visa letter or confirmation of acceptance of studies to non-EEA students lacked the necessary legislative authority because the system under which the decision was taken was contained in policy guidance, not in the Immigration Rules. Richards LJ, with whom Mummery and Rimer LJJ agreed, examined all the previous cases
on what he referred to as the Pankina issue. In para 48 he said that the ratio of Pankina was correctly identified by Foskett J in English UK as relating to the substantive criteria for entitlement to leave to enter or remain. The particular issue was whether a substantive criterion laid down in the rules could be qualified by changeable policy guidance. What Sedley LJ referred to in that case as “criteria affecting individuals’ status and entitlements” was the content of the substantive criteria themselves, not extraneous factors which might affect the ability of an applicant to fulfil the relevant criteria. The substantive criteria governing entitlement to leave to enter or remain as a Tier 4 (General) Student were laid down in the rules and were not supplemented or qualified by guidance. Whether the sponsor held a sponsor licence did have an indirect effect on an applicant’s entitlement, in that it affected his or her ability in practice to meet the criteria. It followed that the criteria for the grant, suspension or withdrawal of a sponsor licence would have that effect. But this was materially different from the substantive criteria and did not affect their content.
- I make no comment as to whether the decisions that are not before us in this appeal were rightly decided. It should be noted that the New London College case is awaiting a decision as to whether permission should be given for an appeal to this court. What they do reveal however is a variety of approaches, and the use of a variety of expressions, to determine where the line must be drawn in order to determine whether material in an extraneous document which is not set out expressly in the rules can validly be relied on to determine an applicant’s claim. Like Lord Dyson (see para 92, below), I do not find any of the suggested solutions to this difficult problem entirely satisfactory.
The test for validity
- The picture that this rapid succession of cases presents is disturbing. The points-based system, which is the source of the problem, is not itself objectionable. But its effective operation is being put at risk by the opportunities it presents for challenges of this kind. Lord Bingham recognised in Huang v Secretary of State for the Home Department  2 AC 167, para 6, that the system of immigration control should be administratively workable. He also accepted that, in the administration of the system, a line had to be drawn somewhere. I think therefore that it would be right to approach the question as to the scope of the Secretary of State’s duty under section 3(2) on the basis that it was not Parliament’s intention that the procedure which it laid down should impede the administration of the system. Questions as to where the line was to be drawn with regard to the content of the rules were for the Secretary of State to determine as matters of policy. What Parliament was insisting on was that she should lay her cards on the table so that the rules that she proposed to apply, and any changes that were made to them, would be open to scrutiny.
- To a large extent her approach to this task cannot be faulted. The enormous amount of detail that has been built into the Immigration Rules speaks for itself. And it makes good sense for guidance and codes of practice which are designed to assist those who must make the system work to be kept separate from the rules themselves. What the cases have revealed however is that the balance between what ought to be in the Immigration Rules themselves and what can properly be dealt with by referring to extraneous material has not always been struck in the right place.
- The system of sponsorship, on which much of the points-based system depends, requires those who undertake the task of sponsoring an applicant to ensure that the applicant qualifies for sponsorship under the scheme. A certificate from a sponsor for a person who does not qualify will be rejected. Sponsors and those whom they are sponsoring need guidance as to what the qualifications are and how they are to meet the criteria that will be applied in determining the application. That is what the Occupation Codes of Practice on UKBA’s website are designed to do. Some of the content of the Codes, which are described as “the official guidance for sponsors and caseworkers” (see para 17, above), is just guidance. The sponsor needs guidance as to how to fill in the certificate of sponsorship and, in cases to which this requirement applies, where to look to assess whether the resident labour market can supply workers to fill the job for which the skilled migrant is being sponsored. He also needs information about the minimum rate of pay that will be regarded as appropriate for the purposes of paragraph 82(a)(ii) of the Appendix, and as to what jobs are regarded as skilled for the purposes of paragraph 82(a)(i) and what are not. It is primarily to him that this information is addressed, as it is the sponsor who is required to complete the certificate of sponsorship. The caseworker too needs guidance when considering whether the application meets the relevant criteria.
- The problem that Mr Alvi’s case reveals, however, is that the Codes contain material which is not just guidance. They contain detailed information the application of which will determine whether or not the applicant will qualify. I agree with Lord Dyson (see para 94, below) that any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). A provision which is of that character is a rule within the ordinary meaning of that word. So a fair reading of section 3(2) requires that it be laid before Parliament. The problem is how to apply that simple test to the material that is before us in this case.
- I am inclined think that information as to where to look to assess the state of the resident labour market is not of that character. It is referred to in the preface to the list of occupations as “advice” and in paragraph 71 of Appendix A as “guidance”. The language that the list itself uses is, of course, not determinative. A provision that is called “guidance” can nevertheless be a “rule” if it satisfies the
test which we have identified. But it seems to me that to call it guidance is apt in the case of this material. It tells the sponsor what procedure he should follow, and the kind of evidence he should examine, in order to fulfil his duties as sponsor to test the resident labour market in cases where that test must be satisfied. The rule in those cases is that the resident labour market must be tested, that it must be tested at Jobcentre Plus, that the job must be advertised and that the sponsor has to give details of where and when the post was advertised. Failure to carry out that procedure will, of course, have an effect on whether or not the sponsorship certificate will assist the applicant. It will lead to the refusal of the application because the rule has not been satisfied. Lord Dyson and I are agreed on that point. But it seems to me that information as to where the job may be advertised does not amount to the laying down of a rule that is determinative. As one would expect, the guidance as at April 2012 shows some changes in the list of newspapers, journals and websites which are regarded as relevant from those which were listed in February 2010. We do not need to decide the point in this case. But if a decision were needed, I would have been inclined to hold that changes of that kind do not require to be laid under section 3(2).
- The references in the Codes to the appropriate rates for the job are, however, of an entirely different character. It will be recalled that the ground of refusal in the Secretary of State’s letter of 18 June 2009 was that she was not satisfied that Mr Alvi’s salary was appropriate for a job at the required level. As this ground was superseded by the letter of 9 February 2010 it has not been necessary to examine the point in this appeal. But it can be said that the lists of minimum salaries that the Codes set out, no doubt with the aim of protecting the UK labour market from being undermined by employing cheap labour from abroad, present two problems. The first is that this information is not set out in the rules themselves. All one has is the reference to “the appropriate rate for the job” in paragraph 82(a)(i). The second is that the rates themselves are susceptible to change because of the effects of wage inflation and perhaps for other reasons too. Reference to the guidance as at April 2012 shows that all the rates that were current in February 2010 have been increased. The criterion which has been used to arrive at these increases is not disclosed anywhere in the Immigration Rules.
- As the migrant must be paid at or above the appropriate rate for the job to qualify, the conclusion that information as to what that rate is has the character of a rule seems to me to be inescapable. As the Codes are said to have been drawn up “based on” advice from the industry experts and the Migration Advisory Committee, the rates themselves must be taken to have been determined by the Secretary of State or on her behalf by UKBA. As the rules do not set out any objective criterion that is to be applied to determine the amount of any increases, the question whether there should be increases and, if so, by how much, is left to the discretion of the Secretary of State. As the rates themselves are to be seen as rules, any changes to them must be held to be changes to the rules within the
meaning of section 3(2) of the 1971 Act. It follows that the rates themselves and any changes to them must be laid before Parliament. It would be open to the Secretary of State to avoid having to lay changes if it was provided by the rules that an objective criterion, such as one of the recognised indices for measuring inflation, was to be used. But, as her ability to make changes is not limited by reference to any such criterion, each and every change to these rates must be regarded as falling with the scope of the obligation under section 3(2).
- The list of jobs that the Occupation Codes of Practice set out both in the preface and in the Codes themselves, of which Code 3221 with which we are concerned in this case is an example, seem to me to be of the same kind. The statements that the job must be skilled at N/SVQ level 3 or above, and that the job of a physiotherapy assistant is below that level, set out criteria which have all the character of a rule, as the ground of refusal in the letter of 9 February 2010 made clear: see para 3, above. Whether the job that the applicant is applying for or occupies is above or below that level will determine whether or not it meets the requirements of the skilled migrant tier. It is a criterion which must be satisfied. The wording of paragraph 82(a)(i) is misleading, because UKBA’s list of skilled occupations includes skilled occupations of both kinds. As it includes those which are below N/SVQ level 3 as well as those above, Mr Alvi’s occupation as an assistant physiotherapist would appear – if the paragraph is to be taken at its face value – to satisfy the requirement. It also leaves it open to the Secretary of State to vary the level at which the occupation will satisfy the requirement, and to vary the descriptions of the jobs that are to be taken to be above or below that level, without disclosing those changes to Parliament.
- The level of skill required for a skilled tier migrant is not just a technicality. It is a means of controlling the numbers of skilled migrants who may be given leave to enter or remain in this country. It is not inconceivable that from time to time it may be thought necessary for the level to be changed. I can see no good reason why the simple but very important statement that the preface to the Occupation Codes of Practice sets out could not have been included in paragraph 82(a)(i). I would hold that it should have been and that, because this statement has not been laid before Parliament, it is not open to the Secretary of State to rely on it as a ground for rejecting Mr Alvi’s application. For the same reason, as the detailed information about which occupations are to be taken to be at or above the relevant skill level is open to change at the discretion of the Secretary of State, these details – and any changes that may be made to them in the future too – must be laid before Parliament.
- Various expressions have been used to identify the test which should be used to determine whether or not material in the extraneous document is a rule which requires to be laid before Parliament. It is not easy to find a word or phrase which can be used to achieve the right result in each case. I agree with Lord Dyson
(see para 88, below) that it is not helpful to say that there is a spectrum. A more precise expression is needed. The word “substantive” was identified by Foskett J in English UK and by Singh J in Ahmed. But even this word needs some explanation. I would prefer to concentrate on the word “rule” which, after all, is the word that section 3(2) uses to identify the Secretary of State’s duty and to apply the test described in para 57, above. The Act itself recognises that instructions to immigration officers are not to be treated as rules, and what is simply guidance to sponsors and applicants can be treated in the same way. It ought to be possible to identify from an examination of the material in question, taken in its whole context, whether or not it is of the character of a rule or is just information, advice or guidance as to how the requirements of a rule may be met in particular cases.
- I see no escape from the conclusion that the question whether or not material in an extraneous document is a rule, or a change in the rules, will have to be determined on the facts of each case. But I hope that the test which we are suggesting will enable those who are responsible for the points-based scheme to identify which of the statements in the Occupation Codes of Practice or their current equivalent need to be included in the Immigration Rules, and to ensure that anything that is of that character which it is thought necessary to include in the Codes or any other extraneous document in the future will be disclosed in that way to Parliament also. But the fact that Lord Dyson and I differ as to whether changes in the list of newspapers, journals and websites where advertisements may be placed for the purposes of the resident labour test are changes to the rules may serve as a warning that the wiser course is to assume that everything that is contained in a rule-making document such as that which is before us in this case is caught by the requirement that section 3(2) sets out, and that any changes to any of the material that it contains must be laid before Parliament.
- I am conscious of the burden which this finding will impose on the Scrutiny Committee: see para 35, above. The volume of the material it will have to look at, within what is necessarily a very short timetable, may be such as to defeat the object of section 3(2) of the 1971 Act which must be taken to have been to ensure that the rules, and any changes to them, were subject to effective scrutiny. The Committee cannot be expected to look at every detail. The greater the detail, the greater the risk that matters of real importance will be overlooked and not drawn to the House’s attention. The situation that has created this problem is so far removed from what it was in 1971 that one wonders whether the system that was designed over forty years ago is still fit for its purpose today. The procedure by which material is laid before Parliament requires hard copies to be laid in each House and, as proof of laying is an essential requirement, this is probably unavoidable. But there are obvious benefits in making use of the ability of the UKBA website to disseminate changes to the rules at minimum cost in a way that is immediately accessible. I hope that it may be possible for a method to be devised of laying
changes which require reference to be made to extensive material in very large documents which can be accessed and searched electronically that will keep the number of documents to be laid and circulated in hard copy in each House each time a change is made to an absolute minimum. But any changes to the system must be a matter for Parliament.
- The test to which I refer in para 57, above should be applied in preference to those described by Sedley LJ in Pankina v Secretary of State for the Home Department  QB 376, para 33 and the subsequent cases referred to in paras 46-52. In my opinion the Court of Appeal was right to hold that Mr Alvi succeeds in his challenge to the Secretary of State’s decision of 9 February 2010. The statements in the Code that all qualifying jobs must be skilled at N/SVQ level 3 or above and that the job of a physiotherapy assistant is below that level both set out rules that ought to have been laid before Parliament under section 3(2) of the 1971 Act. As they were not laid, it was not open to the Secretary of State to rely on them as part of the Immigration Rules. I would dismiss this appeal.
- I agree with Lord Hope that this appeal should be dismissed.