Constitutional cases in the points-based system

Although many facets of immigration control in the UK can be changed there are some matters of principle which executive power cannot vary without the consent of Parliament. Equally, the debate about the exercise of the home secretary’s discretionary powers in relation to the modulation of the immigration rules has underpinned what the courts have described as a constitutional problem. This post examines the continuing conflict which exists between constitutional principles and ministerial power in the context of immigration law.

Update: read the latest on this subject in the post  Case Preview: Alvi and Munir in Supreme Court. The rest of this post continues below …

Exactly how far ministerial discretion can be extended has been the subject of intense legal intrigue and from time to time the courts have had to reverse the home secretary’s excesses. Professor A.V. Dicey’s historic analysis – “no man is above the law … principles of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts” – is well remembered and indulging in what was wisely said repays our examination of the constitutional debate sparked by SSHD v Pankina [2010] EWCA Civ 719.

In their objective to attract the best and the brightest to this country successive governments have maintained a rigorous points-based system (PBS) of immigration control. The robustness of the system has, on the one hand, been undermined by court challenges (which have become seminal in the study of the constitution).  Equally, on the other hand, determined to combat abuses of the system – for which the prime minister and home secretary blame the UK’s international obligations – the government has campaigned tirelessly to dilute the effects of Article 8 of the ECHR: routed into domestic law via the HRA 1998 (which the courts have identified as a “constitutional statute”).

Since the home secretary was granted permission to appeal (by the Supreme Court on 8 July 2011) in the PBS judicial review R (JCWI) v SSHD [2010] EWHC 3524 (Admin) (“JCWI”), there is the interesting prospect that Pankina – where in addition to fixing the constitutional problem a unanimous Court of Appeal required that the Article 8 rights of PBS applicants ought to be respected – might be in danger of being compromised. Whether the government will be able to claw something back in the Supreme Court remains to be seen but the chances of success, i.e. a “win”, of the home secretary’s appeal are debatable.

Thus far, notwithstanding the government’s drive to “reform” human rights law, the courts’ overwhelming response has been to consistently recognise and give effect to jurisprudence which is commensurate with people’s rights and freedoms. In JCWI the grounds for review did not raise Article 8 but instead argued that the manner in which limits were imposed on the PBS was unlawful in light of Pankina. Apart from raising irrationality, the English Community Care Association (ECCA, the second claimant – JCWI being the first) additionally also challenged the interim limits which were imposed on Tier 2 (General) because (or so the argument went) of the home secretary’s failure to consult.

In Pankina sections 1 and 3 of the Immigration Act 1971 – coupled with Tier 1 of the PBS – were the legal points of departure to what the Court of Appeal described as “the constitutional issue”. Sedley, Rimer and Sullivan LJJ held that a cunning modification by the home secretary to the immigration rules through departmental policy guidance was clearly unconstitutional because ministers of the Crown are “constitutionally forbidden to make law except with the express authority of Parliament.”

Although even in Pankina itself Sedley LJ cited R v Secretary of State for Social Services ex parte Camden London Borough Council [1987] 1 WLR 819 to explain that there was no absolute prohibition on “incorporating existing extrinsic documents into the rules by cross-reference” (to borrow Sullivan LJ’s expression in JCWI), the government’s dilemma in “winning” in JCWI nevertheless is that although a limit was vaguely intimated by the UKBA the actual numerical limit itself was not set or clarified at the appropriate time. (When the Coalition ascended to power.) The home secretary, on the other hand, considered it within her discretion to impose and vary limits: she, therefore, saw herself to be accountable to Parliament directly without adhering to the required 40 day negative resolution procedure before either house for introducing statements of changes to the immigration rules.

In JCWI Sullivan LJ and Burton J allowed both claimants’ applications on the constitutional ground which arose from Pankina. Legal analysts will agree that to have expected Sullivan LJ to eschew his own Pankina decision and depart from the settled constitutional point of law would have been quite a tall order. The Court, however, dismissed the claimants’ applications on the second (irrationality) and third (failure to consult) grounds for review.

Sullivan LJ, moreover, said that major alterations to the structure of the PBS in relation to the number of migrants who can be permitted to enter or stay in the UK “are precisely the kinds of substantive changes that should be laid before Parliament” and in comparison the “UKBA’s list of skilled occupations” is “very much at the other end of the spectrum.”

In addition to JCWI, Pankina was famously applied by the High Court in R (English UK) v SSHD [2010] EWCA 1726 (Admin) and R (Alvi) v SSHD [2011] EWCA Civ 681. In English UK Foskett J found that the home secretary’s failure to specify in the rules an increase (from level A2 CEFR to level B2) in the minimum academic requirements for obtaining a student visa was unlawful within the meaning of the Pankina decision. Again the use of Tier 4 policy guidance to insert new conditions in the rules was found to be perverse and Foskett J (squarely placing section 3 of the 1971 Act at the apex of his decision) explained that:

The Court of Appeal held that the revised criterion could not be put in place by virtue of the process of issuing guidance. The ratio of the decision appears to me to be that a provision that reflects a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involves a true Parliamentary scrutiny … The statutory foundation for such a conclusion is section 3(2) of the Act.

Equally, in JCWI Sullivan LJ said that the statutory purpose of the 1971 Act would be frustrated if the home secretary laid before Parliament a change in the rules whose effect allowed her discretion to set out in guidance or publish on a website the freely alterable practice the UKBA would follow in relation to the PBS. (“Such a rule would be a deliberate evasion of the statutory purpose: an attempt to place the exercise of ministerial discretion beyond the bounds of Parliamentary scrutiny as required by the 1971 Act.”)

Similarly in English UK, Foskett concluded that the variation – from level A2 CEFR to level B2 – operated “to change materially the substantive criteria for entry for foreign students who wish to study” in this country and in having bypassed Parliamentary scrutiny the home secretary’s actions were unlawful.

Alternatively at the other end of the spectrum, at first instance in Alvi Lord Carlisle QC – sitting as deputy high court judge – addressed changes which did not materially and substantively change the effect of the rules. Distinguishing Pankina he held that the UKBA’s List of Skilled Occupations did not form an intrinsic part of the rules and variations within it did not require Parliamentary approval. In Alvi – where a Pakistani Tier 2 (General) migrant brought judicial review proceedings against the home secretary’s refusal to grant 50 points for a certificate of sponsorship – one point of discussion which arose was whether the list which was cross referred via paragraph 82 of Appendix A of the immigration rules could be amended by the home secretary within the meaning of her discretion. The refusal remained connected to whether the claimant’s job as an assistant physiotherapist was at or above the requisite level (namely NVQ or SVQ level 3) to obtain a visa.

However, in Alvi on appeal and Sullivan LJ’s formulation regarding the list of shortage occupations in JCWI set out above notwithstanding, Jackson LJ – although not asked to rule on it – found merit in the argument that the prescription of specific jobs was a “substantive” matter rather than a “minor” alteration to the home secretary’s practice and his Lordship hence stated that  “there can be no doubt that the governing principle set out in the List is a substantive matter”. Accordingly, for Jackson LJ the “governing principle” was “that all jobs which qualify under section Q are at or above NVQ or SVQ level 3”: following Pankina he, therefore, took the view that “the governing principle is a requirement which must be set out in the Immigration Rules if it is to be valid.”

After appraising the authorities in R (Ahmed) v SSHD [2011] EWHC 2855 (Admin) – where the claimant was a Pakistani student who applied for judicial review under the Pankina ground (while simultaneously maintaining that there was no obligation upon him to submit a CAS in virtual form) – Singh J dismissed the claim but explained two types of scenarios: (i) the substantive requirements which an applicant has to meet in order to obtain leave to enter or remain under the immigration rules; and (ii) the means of proving such eligibility. In the judge’s view substantive requirements “could only be changed by amending the immigration rules and in accordance with the negative resolution procedure”, whereas the means of proving eligibility “need not be and can properly be the subject of policy guidance.”

Given that Pankina has entered the Supreme Court via the government’s appeal in JCWI it will be extremely interesting to see if any ground will be ceded by the judges of the apex court in relation to the constitution. Equally it will be an ideal opportunity for the Supreme Court to clarify the current conflict which exists in the lower courts in relation to the shortage occupation list. (Alvi contrasted with JCWI.)

Although not in the PBS genre of constitutional cases, AXA Insurance v Lord Advocate [2011] UKSC – a Scottish damages and personal injury case concerning insurance companies’ indemnity undertakings and employers’ liability under the Damages (Asbestos-related Conditions) (Scotland) Act 2009 – was landmark constitutional decision where the appellant insurance companies relied on Article 1 of Protocol 1 of the ECHR (A1P1 states that every legal and natural person is allowed, within the law, to the right to their possessions). A seven-member bench – Lords Hope and Reid delivering the leading judgment – unanimously  dismissed the insurance companies’ appeals but took the opportunity to make other important constitutional points.

In his sublime article entitled AXA in the Supreme Court: Is the Sovereignty of Parliament Doomed Professor Adam Tomkins clarified the constitutional importance of AXA by relating it to the contemplation of “legislation whose design is to diminish the role of the courts in protecting the interests of the individual.” He added that “[w]e all know that the Human Rights Act is under review and, indeed, under threat.”

While it may be deduced from AXA that the courts’ intervention in reviewing legislation should only occur in the most exceptional circumstances, Professor Tomkins explained that in appraising the circumstances which merit intervention – rather them setting the two bodies apart – the Supreme Court focused on the common ground between the sovereign Westminster Parliament and the devolved Scottish legislature. In fact in describing the democratic process and the rule of law Lord Hope explained that when the majority party (or parties as the case might be) dominates the legislature and desires to oust judicial review or dilute the role of the courts in protecting the right of individuals then extraordinarily “[t]he rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise.”

Professor Tomkins presciently observed that this principle is not aimed solely at Acts of the Scottish Parliament. Rather “[i]t is expressed to apply to legislation generally including, apparently, to Acts of the UK Parliament.”

Writing about the Bill of Rights Professor Christine Bell took this notion further by explaining on the UK Constitutional Law Blog that AXA “offers the prospect of building ‘rule of law’ judicial review which, in theory, could begin re-incorporating a range of rights were the HRA dismantled”.

This post’s point of departure was the PBS (or Pankina and related judgments). Apologies for having digressed from this main focus but let us return to it. In a casual conversation with Sir Stephen Sedley (at the UKCLG’s event in his honour), the subject of the government’s appeal in JCWI and its impact on the Pankina judgment did pop up and he disapproved of any compromise of the Court of Appeal’s unanimous judgment. The government’s 3-0 Court of Appeal defeat in Quila and Bibi only improved to 4-1 in the Supreme Court: when this was mentioned Sir Stephen Sedley could only smile!