Alvi: Every “Rule” Must Be Laid

R (on the application of Alvi) (Respondent) v Secretary of State for the Home Department (Appellant) [2012] UKSC 33

This case began as a “simple” Tier 2 (General) application under the points-based system (PBS). Yet the refusal of Mr Alvi’s application ended up in the UK Supreme Court which dismissed the SSHD’s appeal. Crucially, focussing on the meaning of the word “rule” the Court decided that any requirement which, if not satisfied, leads to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2) of the Immigration Act 1971: a fair reading of this statutory provision requires that all the rules must be laid before Parliament. One reason for such strictness was to contain the recent explosion of litigation which had arisen out of the PBS. Indeed, Lord Hope (Deputy President Supreme Court) found the trend to be “disturbing”: para 54.

Until now, the courts had tried to fix the problem by focusing on making a distinction between “substantive” criteria affecting applicants’ individual entitlements and the means by which these are satisfied. But for the Supreme Court, being seduced by this distinction is of little value because the definition of a substantive requirement is missing from the 1971 Act. Therefore, Lord Dyson could only express his frustration by saying that, “without the fixed point of a defined substantive requirement, the suggested definition of a rule becomes a chimaera”: para 89. (See top-left picture!)

The Issue

Lord Dyson, para 79, described the issue in this case as

whether the statement in section Q of the Codes of Practice that a physiotherapy assistant is below NVQ/SVQ level 3 (and therefore attracts no points) is a rule within the meaning of section 3(2) of the 1971 Act.

His Lordship noted that a seemingly simple question of statutory interpretation – what is a rule laid down by the Secretary of State as to the practice to be followed in the administration of the 1971 Act? – had given rise to an abundance of litigation but despite this the courts had not produced a clear answer: para 69.

Background

At the material time in February 2010, paragraph 82 of Appendix A to the Immigration Rules only awarded points for sponsorship if the job in question appeared on the UKBA’s list of skilled occupations, and the sponsored migrant was paid at or above the appropriate rate for the job as stated in that list of skilled occupations. The said list was found in Occupation Codes of Practice published by the SSHD on the UKBA’s website.

Initially Alvi’s Tier 2 (General) application was refused because the SSHD was not satisfied that his salary as an assistant physiotherapist was right for his job. Aggrieved he took judicial review proceedings on the grounds that the list of skilled occupations was not part of the Immigration Rules because the document in which that list was set out had not been laid before Parliament under section 3(2) of the Immigration Act 1971. Subsequently, a revised decision letter replaced the original decision. The new refusal maintained that the job title was not a job that was at or above NVQ or SVQ level 3, as stated in the relevant Codes of Practice document. Therefore, falling short of rule 245ZF, Alvi could not accumulate the 50 points under paragraphs 59-84 of Appendix A of the Immigration Rules.

At first instance in Alvi [2010] EWHC 2666 (Admin)Pankina [2010] EWCA Civ 719 was distinguished and the Court 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. Pankina itself was concerned with the SSHD’s 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 circumvented the forty-day negative resolution procedure. This was a serious constitutional dilemma: see paras 7 – 22, per Sedley LJ (as he then was).

In the Court of Appeal in Alvi [2011] EWCA Civ 681, allowing the appeal Jackson LJ found that “there can be no doubt that the governing principle set out in the List is a substantive matter”: para 40. Imperatively, “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”: para 43. 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”: para 44.

The Supreme Court

The Court considered the way other courts had tried to resolve similar cases in the past. Ultimately the question about the true meaning and effect of section 3(2) of the 1971 Act remained indelibly connected to the decision in Pankina and the plethora of cases, including this one, which that judgment gave birth to.

Rather than diminish the importance of what was said in Pankina by finding fault with Sedley LJ’s lead judgment (that section 3(2) disabled the SSHD from incorporating provisions in the Immigration Rules by using another document which avoided Parliamentary scrutiny and was alterable after the rule in question had been laid before Parliament), the Supreme Court vindicated Sedley LJ by imposing an even more stringent test than he had proposed.

Lord Hope underlined that the key question could only be answered by understanding the system that was contemplated by the enactment of section 3(2) and how the 1971 Act has affected the system of immigration control maintained by the SSHD: para 26. After reviewing the relevant authority, Lord Hope rejected the submission that the SSHD could control immigration by exercising prerogative powers where this was not in conflict with the Immigration Rules: para 33. Prerogative powers could be used to control immigration “in ways that are not disclosed by the rules” but the obligation placed on the SSHD under section 3(2) “cannot be modified or qualified in any way by reference to the common law prerogative” because the scope of immigration control was defined by the 1971 Act. Although (by section 33(5) of the 1971 Act) prerogative powers in relation to “aliens” were expressly given precedence over statute, Lord Hope observed that section 39 of the British Nationality Act 1981 amended the 1971 Act to include everyone who was not a British citizen. Thus, the original provision did not have any practical value because “the old order, under which such a sweeping power could be exercised at will by the executive, is now long gone”: para 30.

The 1971 Act had to be seen as the source of the SSHD’s powers and it expresses her duty “in the broadest terms.” Thus, whatever was “in the nature of a rule as to the practice to be followed in the administration of the Act” would have to laid before Parliament in the form of a statement of changes to the Immigration Rules so that it could be vetted by the Secondary Legislation Scrutiny Committee in the House of Lords. Essentially, resorting to the tactic of referring to external documents was in itself not untoward. But it was objectionable where such techniques enabled the SSHD to dodge her statutory duty to lay any changes to the rules before Parliament: para 41.

Lord Hope set out the test for a “rule” as

57. … [A]ny requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). A provision which is of that character is a rule within the ordinary meaning of that word. So a fair reading of section 3(2) requires that it be laid before Parliament.

His Lordship concluded that the above test is preferable to the one proposed by Sedley LJ in para 33 of Pankina. Thus, Lord Hope concurred with the Court of Appeal’s decision in the instant case that “the statements in the Code that all qualifying jobs must be skilled at N/SVQ level 3 or above and that the job of a physiotherapy assistant is below that level both set out rules that ought to have been laid before Parliament under section 3(2) of the 1971 Act. As they were not laid, it was not open to the Secretary of State to rely on them as part of the Immigration Rules. I would dismiss this appeal”: para 66. Lord Dyson and Lord Walker, paras 102 and 115, agreed with Lord Hope.

Similarly Lord Walker described Alvi’s case as “as touching on matters of deep and widespread public concern” and that it was an extreme illustration of the tension between flexibility in the public law decision making process and predictability of its outcome both of which were desirable: paras 109 and 111. He hoped that, in order to “cope with the problems of immigration as they are today,” it was worth considering for Parliament whether “the simple terms of section 3(2) … are still adequate today, 40 years on”: para 109.

Lord Clarke thought that the approach taken by the Court was “principled, clear and workable.” The critical point to appreciate was that if a change in practice could potentially determine “the outcome of any application for leave to remain then it must be laid before Parliament”: para 122.

An unenthusiastic Lord Wilson observed that the Supreme Court’s decision was the “only principled conclusion”: para 128. Choosing to describe the PBS as “an astonishingly prescriptive system,” his Lordship highlighted that the 1971 Act not only imposed on the SSHD a broad duty to lay statements of changes of rules before Parliament,

but also upon Parliament in attempting to decide, within only 40 days, whether to disapprove a rule or (as Lord Hope helpfully explains at para 35) at least to require the Secretary of State to come and discuss it.

Although not asked to decide on it, in relation to the resident labour market test (RLMT) Lord Hope held that the requirement to meet the RLMT was a rule because it included the requirement that the job be advertised and that the sponsor was expected provide details confirming when and where the job was advertised. But his Lordship did not think that information about where the job may be advertised amounted to a determinative rule: para 58. While Lord Walker preferred not to express an opinion on the RLMT, Lord Dyson, Lord Clarke and Lord Wilson were of the view that since the requirements prescribed which specified newspapers, journals and websites the job/post could be advertised in, any changes in these requirements are changes in the rules which must be laid before Parliament: paras 106, 124 and 129.

Lord Hope explained that because proof of laying “is an essential requirement,” the procedural need for material to be laid before Parliament (which required hard copies to be laid in each House) was “probably unavoidable”: para 65. Conscious of the fact that their judgment would place “a heavy burden on Parliament,” Lord Walker and Lord Wilson agreed with Lord Hope and the Court hoped that a more efficient system could be devised to lay changes. The Court questioned whether the four-decade old system was still “fit for purpose” in light of today’s communication methods but underlined that any changes to the system must come from Parliament.

When this blog contacted Mr Zane Malik– who represented Hussain Zulfiquar Alvi in the High Court, the Court of Appeal and the Supreme Court – to congratulate him on his massive victory, he only very modestly described his achievement as “a good win.” Zane added that

I am happy for Sedley LJ: Pankina was his baby. I was the first one who told him earlier today [18 July 2012] that Pankina has been approved by the Supreme Court and he was thrilled.

Ultimately, in this case and the cases that followed Pankina, “the answer has to be that ministers are to be expected to do what is required of them” (Sedley LJ, para 35, Pankina). Two years on, the Supreme Court has redefined that statement to impose much stricter test on the SSHD.

With the benefit of hindsight, in the instant case, Theresa May would have been better off accepting the Court of Appeal’s decision.

The consequences of Alvi are immense and it is the most telling case on the Immigration Act 1971. Ultimately, the Supreme Court sent out a very clear message to Theresa May by explaining that if its interpretation of the 1971 Act was “unacceptable” to her, “she can seek to amend the 1971 Act and introduce a clear expanded definition of what constitutes a rule”: Lord Dyson, para 98.

The Supreme Court’s decision which must be read in full is available here:

About Asad Khan

Advocate High Courts of Pakistan
This entry was posted in Court of Appeal, Immigration Rules, Pankina, PBS, Sedley LJ, Tier 2, UKSC and tagged , , , . Bookmark the permalink.

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