Alvi immigration case: Supreme Court rejects Home Office codes of practice

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 The suggestion that immigration could be controlled by Royal Prerogative was outmoded and superseded by legislation and the possibility of challenges under the European Convention on Human Rights.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.

Theresa May’s immigration rules expel the rule of law

The UK Government has instituted a remarkable constitutional innovation that redefines the concept of the rule of law. It has declared that the Government can tell judges how to interpret legal rules governing executive actions when those actions are challenged in court.

This is the implication of guidance attached to the new Immigration Rules laid (briefly) before Parliament and coming into force on 9 July 2012.

Home Secretary Theresa May has set out new rules on immigration but, crucially, severely curbed judges’ rights to interpret those rules in the light of Article 8 of the European Convention on Human Rights. She has done it on the basis of a misreading – or perhaps, more accurately, a misrepresentation – of case law on the immigration issue.

Since the Immigration Rules are not statutory (they are issued by the Government rather than passing through the full legislative process in Parliament) they can be struck down by courts if not in conformity with the European Convention. Article 8(1) says: “Everyone has the right to respect for his private and family life, his home and his correspondence.” It is blamed by the government for preventing the deportation of undesirables, including criminals or potential terrorists, if they can claim a “family life” in Britain. This has irritated the current and previous Governments for years.

Notoriously, even the fact that a foreign man and his British girlfriend co-own a cat was once adduced to enhance a non-national’s “family life” credentials under Article 8 – at least according to Mrs May.