The latest post on Alvi is available here. For the impact of Alvi on the Immigration Rules see post here. The latest post on Rahman, Munir and DP 5/96 is available here. Original post continues below.
Writing last week on the Free Movement blog about a significant decision of the Scottish Court of Session, Joe Bryce noted that the details of the Alvi/Munir/Rahman cases were not available on the UK Supreme Court’s website. Likewise, some of the Court of Appeal’s recent judgments, for e.g. see  of New London College,  of Castro and  of Miah, have also anxiously been awaiting the hearing in the UKSC. Joe’s observation did not go unnoticed and the very next day, on 11 April, the details of these cases became available on the Court’s site. A hearing before Lords Hope, Walker, Clarke, Dyson and Wilson is scheduled on Tuesday 24 April 2012. The principles of this country’s “unwritten” constitution will be at stake in the upcoming hearing. Having won on the Pankina or “constitutional ground” in the Divisional Court in 2010, JCWI is intervening in the proceedings.
Alvi, Munir and Rahman applied for leave to remain in the UK but their applications were refused.
In Alvi’s case his Tier 2 (General) application was refused because his job, as an assistant physiotherapist, was not on the UK Border Agency’s approved list of skilled professions which meant that he did not get the required points for a certificate of sponsorship as set out in Appendix A of the Immigration Rules.
Munir and Rehman’s applications for leave to remain were refused because Deportation Policy 5/96 (DP 5/96) which contained a presumption operating in their favour – that leave would be granted where the circumstances involved children born in the UK who had been present here for seven years – had been withdrawn.
The refusals were challenged on the grounds that by sidestepping Parliament through the relevant policy or policy change, the government had evaded the statutory procedure expressly contained in section 3(2) of the Immigration Act 1971 (the 1971 Act) which was unlawful.
Critically, the question before the Supreme Court is whether, in making changes to the Immigration Rules, the Secretary of State for the Home Department can sidestep Parliament by not formally submitting the changes to parliamentary scrutiny?
The central issue in these cases is whether the unanimous decision of the Court of Appeal in Pankina was proper? If so, applying the “Pankina principle”, in what circumstances did the SSHD need to lay changes in immigration law by amending the Immigration Rules (or otherwise) before Parliament given that the negative resolution procedure had been placed on a statutory footing under section 3(2) of the 1971 Act?
Other issues which arise in these cases are whether, in the absence of Parliamentary scrutiny, certain changes in the law – such as the amendment of the UK Border Agency’s list of skilled occupations and the withdrawal of DP 5/96 – were acceptable?
Furthermore, as the Court of Appeal recently anticipated in – of Miah,the Supreme Court will also hear argument on whether a person’s leave “as a work permit holder” continues after the expiry of their work permit by virtue of section 3C of the 1971 Act entitling the said person to indefinite leave to remain (ILR or settlement) “though for part of the requisite period of 5 years he had no extant work permit”.
Pankina itself was concerned with the SSHD’s cunning modification of the Immigration Rules through the use of published policy guidance. This allowed the government to sidestep Parliamentary scrutiny. By not laying the changes to the rules before Parliament, the SSHD bypassed the forty-day negative resolution procedure which was a constitutional conundrum of epic proportions: see – per Sedley LJ (as he then was).
Thus, the Court of Appeal was unanimous in its comprehensive rejection of the belief that the SSHD could modulate Appendix C of the Immigration Rules to create the requirement that certain points-based system applications would have to exhibit minimum balances of £800 which had to be held for three months continuously for an applicant’s maintenance to be acceptable for a Tier 1 (Post Study Work) visa. This was because Appendix C – Maintenance (funds), worth 10 points, under the rules – only required a £800 balance to be exhibited but the policy guidance contained the additional condition for the funds to be held for three months continuously.
Points-based system recapitulation
In JCWI at  Sullivan LJ said that the statutory purpose of the 1971 Act would be frustrated if the SSHD 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.”) At  his Lordship also said, “We are bound by Pankina, but, perhaps unsurprisingly, I would follow Pankina even if we were not so bound.” However, in JCWI Sullivan LJ at  found that although the limits imposed on Tier 1 (General) and Tier 2 (General) were unlawful because of Pankina, the list of skilled professions was “very much at the other end of the spectrum” to the type of changes which would need Parliament’s scrutiny.
In Alvi the question which arose was whether the list which was cross referred via paragraph 82(a)(i) of Appendix A was a part of the Immigration Rules. At first instance in Alvi Lord Carlisle QC – sitting as deputy high court judge – distinguished Pankina and held that the UKBA’s list of skilled professions did not form an intrinsic part of the rules and variations within it did not require Parliamentary approval.
In Alvi on appeal, allowing the appeal, Jackson LJ at  hence found that “there can be no doubt that the governing principle set out in the List is a substantive matter”. Imperatively, at , “the existence of certain general guidance … did not relieve the Secretary of State of the obligation to specify the threshold for skilled occupations in paragraph 82(a)(i) of Appendix A.” Therefore, the Court quashed the SSHD’s decision because she could not ”rely upon the fact that the job of physiotherapy assistant is below the NVQ level 3 in order to treat the certificate of sponsorship … as invalid” (at ).
But in Miah Stanley Burnton LJ, hesitated in following Pankina, and said at  that Sedley LJ “erred” and that the Court was not obliged to follow what was said obiter in Pankina. Dictum alone would not do and the approach adopted in other cases was preferred by Stanley Burnton LJ.
Substantive or procedural change?
Last November in Ahmed – where the claimant was a Pakistani student who applied for judicial review under the Pankina ground – Singh J dismissed the claim but explained that although substantive or material changes to the Immigration Rules had to be laid before Parliament in accordance with the negative resolution procedure, amendments to the means for proving that an applicant had satisfied those requirements could be cross-referenced in a separate policy document which had not been scrutinised by the legislature.
Likewise in Castro Charles George Q.C. ruled that the Immigration Rules could lawfully incorporate provisions set out in policy guidance which was not laid before Parliament if the changes did not materially change a substantive criteria for entry to the UK.
Back in mid-2010 two weeks after Pankina in English UK, Foskett J found that a failure to specify in the Immigration Rules an increase in the minimum academic requirements for obtaining a student visa was unlawful within the meaning of the Pankina decision. Although there was nothing wrong with a rule which cross-referred by using guidance, the guidance could not then be used to materially change the effect of the rule or the effect of extrinsic guidance available at the time of the rule’s promulgation. Where the rule expressly allowed such guidance to be issued “from time to time” things were rosier for the government because it was possible to argue that since Parliament itself approved the rule, the SSHD was empowered to make material changes via guidance.
Deportation Policy 5/96 (DP 5/96) recapitulation
Prior to being withdrawn in 2008 in its most recent operative form DP 5/96, save in the most exceptional cases, worked to grant ILR to children (and their parents) who had been continuously present in the UK for a period of seven years or more. The policy – also known as the “seven-year child concession” – was withdrawn in order to prevent rights from accruing to overstayers and unlawful entrants to the UK. Following the withdrawal this country, theoretically at least, was still obliged to consider removal of families under the Immigration Rules and Article 8 of the ECHR. The real reason for the withdrawal was that the courts had interpreted the policy as not only containing a presumption against removal but also a “corollary” presumption to grant leave: this was also acknowledged to be the SSHD’s actual practice.
Thus, in shelving DP 5/96 the government purported to provide a more “consistent approach” in making immigration decisions which would be fairer because the policy did not benefit people who remained legally in the UK, whereas unlawful entrants and the like benefitted: in fact the policy “induced” illegal immigration. Allowing the SSHD’s appeal, the Court of Appeal (Stanley Burnton, Thomas and Moore-Bick LJJ) was ”unable to see how they [Rahman and Munir] could sensibly have been entitled to have it [DP 5/96] applied to them” (at ). For the Court, Zane Malik’s submission that the withdrawal of DP 5/96 was a change in the Immigration Rules proved “too much” because:
If the withdrawal of DP 5/96 was such a change, it necessarily follows that DP 5/96 itself should have been laid before Parliament in accordance with section 3(2). It was not. On this basis, DP 5/96 was unlawful, and its withdrawal was lawful since it brought to an end the application of an unlawful policy. 
Zane is common to almost every case in this post. Apart from Pankina itself, one of the first entries on this blog in relation to Zane was Adedoyin and since Bailii is studded with his cases more posts can be found here , here and here. I think that he would agree that in these cases “the answer has to be that ministers are to be expected to do what is required of them” (Sedley LJ at , Pankina).
The hearing – which has been listed for 3 days – will be viewable (10:30 am to 4:00 pm) online here on 24 April.