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 The suggestion that immigration could be controlled by Royal Prerogative was outmoded and superseded by legislation and the possibility of challenges under the European Convention on Human Rights.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