The Home Office has been found to be in breach of the law by excluding migrants from Britain using “rules” in codes of practice that have not been sanctioned by Parliament.
The Supreme Court rejected the notion that material in the codes used to control immigration fell within the Royal Prerogative under Common Law (and hence beyond the ambit of parliamentary immigration legislation). The suggestion that immigration could be controlled by Royal Prerogative was outmoded and superseded by legislation and the possibility of challenges under the European Convention on Human Rights.
The court has also suggested that 40-year old procedures for passing immigration rules through Parliament are no longer fit for purpose.
In what looks like a panic measure, the Home Office has sought to counter the ruling by putting a statement on immigration rule changes, including the codes of practice, before parliament on Thursday 19 July to come into force on Friday 20 July.
The debacle has occurred because new immigration rules, according to the 1971 Immigration Act S.3(2) are supposed to be laid before both Houses of Parliament. If the rules, in effect statutory instruments issued by Governments, are “disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying”, then the Secretary of State must take them back and make suitable amendments. (the so-called “negative procedure” explained here)
But in the case of the Occupation Codes of Practice used to exclude physiotherapy assistant Hussain Zulfiqar Alvi, a Pakistani national, even this far from rigorous procedure was not used. Instead the document was issued by the Secretary of State to the UK Border Agency (UKBA) without parliamentary scrutiny and posted on UKBA’s website. It lists skilled occupations and salaries that immigrants must have to qualify to be sponsored by employers to work in Britain.
In June 2009 Alvi was excluded on the new points based system since his salary was not deemed of the required level for a Tier 2 (General Migrant) or his job not sufficiently skilled according to the relevant Code of Practice.
However, the Supreme Court has now decided that the code did not satisfy the definition of “immigration rules” for the purpose of S.3(2) of the Act and hence did not have validity for excluding people. It noted: “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 code therefore does not have the legal power of properly passed immigration rules.
In effect, the court ruling means that to have excluded people on the basis of these codes was to exclude them without legal sanction – an act done by the Government utilising an advisory organisation while Parliament had no say at all.
Lord Hope said: “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.”
Given the uncertainty about documents issued by the Secretary of State, including advertisements in newspapers explaining the system, “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”.
‘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’ – Lord Hope
The Government sought to argue that the codes were covered by Royal Prerogative, the residual powers of the Monarch in the hands of the Executive (ie Government rather than Parliament) to respond to important issues of public interest such as security, defence and international relations. It is argued that control of Britain’s borders must fall within those extra-parliamentary powers. So 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”. The Prerogative cannot override Parliament but, it was argued, might supplement it, allowing the Secretary of State to produce valid “rules” in a code of practice.
This argument Lord Hope rejected, following arguments in the case of Munir, published on the same day. Hope acknowledged that “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”.
A prerogative power may, however, be suspended, or abrogated, by an Act of Parliament. The 1971 Act was, according to its long title, enacted “to amend and replace the present immigration laws”.
Hope accepted that Section 33(5) of the Act 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 he says: “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.”
He added: “the scope of that [prerogative] 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 system of laying rules before Parliament was, however, in itself outmoded, especially as the requirement to go through a parliamentary procedure for matters in codes of practice would add a huge burden. “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.”
Among desirable changes might be 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”.
It is hard to underestimate the anger this judgment will cause in the Home Office. Once more, it will be argued, unaccountable judges have flown in the face of democratically appointed Secretary of States in their difficult task of controlling immigration.
On the face of it, it even looks as if a judge has struck down a provision in a long-standing piece of parliamentary legislation – Section 33(5) of the Immigration Act 1971, which purports to preserve the Royal Prerogative in immigration matters. Judges are not supposed to do that; they are supposed to interpret legislation, not strike it down.
But Hope makes an interesting point. Acts by the Executive are not the same as Acts of Parliament – they are not necessarily democratically valid just because the Secretary of State is appointed by the winning party (or coalition) in a general election. If justified by the prerogative, those acts are being justified as protected from the scrutiny of the democratic system and even, on the basis of the Secretary of State’s arguments in Alvi, protected from the courts and human rights. In this day and age such arbitrary behaviour by an Executive would fall foul of the European Convention on Human Rights. The provision would seem to have been “impliedly repealed” as much by greater awareness of human rights as by any specific legislation.
This is not a view that Theresa May will easily accept. It will suggest to her that the Royal Prerogative, sanctioned in this case by a democratically elected Parliament, can be struck down on the basis of a putative judgement in a putative case before the European Court at Strasbourg.
Theresa May’s panic response of putting the immigration codes before the House of Lords is an absurdity. Only days ago a Lords scrutiny committee condemned her attempt to do the same thing with the new Immigration Rules – getting the Commons to debate and support her view of them. Now she is using the same dubious trick (but with no debate) in the House of Lords.
The issue of democratic credibility for the immigration rules cannot be solved simply by waving them at parliamentarians and expecting judges to see that as the same as proper debate and scrutiny. The case of Alvi will be controversial, to say the least.
Note: the 288-page statement of changes rushed out for July 19 to be implemented on July 20 is here: Statement of changes in Immigration Rules Cm 8423 – July 2012 (1.2MB). It was accompanied by no debate nor scrutiny in the Lords (most of whom had headed off on holiday). The fact that they were not laid before Parliament according to the Immigration Act was justified thus: “these changes have no operational impact on applicants, sponsors or caseworkers. The changes only incorporate existing requirements, currently set out in guidance or lists external to the Immigration Rules, into the Rules themselves to protect against further legal challenge”. Yet the whole point in Alvi was that they should have gone through the procedure specified in the Act – which requires secondary legislation, including such rules, to be laid for 40 days before Parliament. It is difficult to see how that requirement has been circumvented.
The Lords Scrutiny Committee has also criticised May for this attempt to get judges to accept the flawed immigration rules, calling for “urgent clarification from the Minister about how the Home Secretary plans to revise the legislation to put its application beyond question”. Report here
Other recent posts on immigration:
Theresa May’s meaningless statement on immigration rules
Theresa May’s immigration rules expel the rule of law
A related piece by Mark Elliott: Muddled thinking on ‘third source’ of law
The cases (both published 18/7/2012)
R (on the application of Munir and another) (Appellants) v Secretary of State for the Home Department (Respondent)
R (on the application of Alvi) (Respondent) v Secretary of State for the Home Department (Appellant)
Secretary of State for the Home Department v Anastasia Pankina (2010)