Departing from the tier system’s continuous 3 month £800 maintenance requirement
English judges certainly know how to pronounce judgments without fear of reprisal from the executive branch of government. The reason for this might be that in England to remove a judge of the High Court or a court superior to it, the monarch must address both Houses of Parliament to explain the dismissal. The present case under discussion was heard by a three member bench of the Court of Appeal which consisted of Lord Justices Sedley, Rimer, and Sullivan. Sedley LJ, with whom Rimer and Sullivan LJJ concurred, delivered the Court’s unanimous judgment on 23 June 2010.
Lord Justice Sedley, who has been dubbed “the most dangerous man in Britain” because of his affiliations with the Communist Party of England, decidedly exhibits the freedom which is symptomatic of the judiciary in England and Wales. No novice to Sedley LJ’s rebukes, the Home Secretary initially intimated an appeal of this decision to the Supreme Court. Yet she subsequently reconsidered her options and choose to abandon her appeal and leave matters as they stood.
The facts of the present case are that the applicants were graduates of UK tertiary institutions who after completing their studies wished to live and work here using the “bridge-visa” option which is contained in the Tier 1 (Post Study Work) category under the Points Based System (PBS) of immigration control.
It should be said that as the new Home Secretary Theresa May embarks upon her bid to limit the number of immigrants into the UK by placing a numerical limit on certain types of visas, Sedley LJ’s decision in this case should strike fear in the rank and file of the Cameron government and its plan to redact existing immigration policies. The ratio of this case is that any modification to the immigration rules through the use of policy guidance by the Home Secretary is unlawful. Since the Home Secretary has had a tendency to use policy guidance to modify the immigration rules approved by Parliament, this case really is a landmark in UK immigration law and will give rise to “floodgates” of litigation.
In considering the maintenance requirements of Tier 1 migrants the Court of Appeal explained why and how constitutional issues settled four centuries ago which fostered the separation of powers and fathered democracy could not allow the Home Secretary to lawfully add to or modify the immigration rules through his or her discretion. Putatively, for his Lordship, the issue at hand appeared “on its face marginal almost to the point of triviality” but nevertheless it was “an issue of constitutional importance and of real difficulty”.
Indeed it is quite surprising that the constitutional issue should be related to the requirement that applicants under Tier 1 must demonstrate a continuous bank balance of £800 for 3 months for maintenance to qualify for extending their leave from a student status to a PSW status. The court adjudged that this requirement was not a part of the immigration rules because it was never put before Parliament in a House of Commons Paper as all immigration rules must be. The fact that the Home Secretary had taken the liberty to modify the immigration rules which Parliament approved is what the Court found most objectionable in the Home Secretary’s policy with respect to maintenance requirements which the PBS demanded of applicants.
The Court took the view that although the policy guidance for Tier 1 visas required that applicants demonstrate a continuous personal bank balance of £800 for a period of three months maintenance (for in-country applications), the immigration rule which dealt with the maintenance requirement did not expressly require any condition about the balance subsisting continuously for three months and that in fact the three months’ policy was a modification or an addition to the immigration rules which were laid before Parliament.
Sedley LJ drew upon the Case of Proclamations (1611) 12 Co. Rep. 74 to clarify that the monarch had no power to legislate domestically in his own right because “the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm.” Moreover, his Lordship also cited Lord Parker of Waddington who had remarked in The Zamora  AC 77, 90 that:
“The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by the Courts of law in this country is out of harmony with the principles of our Constitution.”
The status of the immigration rules it appears is one which is special because the rules are neither statute nor common law nor custom. However, upon appeal they do acquire the force of the law under the grounds of appeal set out in section 84 of the Nationality, Immigration and Asylum Act 2002. This case provides great insight of the legal status of the immigration rules which the Court described as a “constitutional hybrid”. His Lordship very incisively explained that the immigration rules are the rules which a minister of the Crown makes in exercise of Crown prerogative.
The Immigration Act 1971, which is the touchstone of immigration control in the UK describes, the immigration rules as “the rules for the time being”. If either House of Parliament takes a negative resolution with respect to the changes in the rules laid before it, then the Home Secretary is obliged to make changes to the rules so that they become acceptable to Parliament.
Attempts at stealthily elevating the status of the rules to “the law” by the parliamentary draftsman in section 86(3)(a) of the 2002 Act -which speaks of “the law (including the immigration rules)”- were not unnoticed by the Court. Sedley LJ also clarified that under section 21 of the Human Rights Act 1998 subordinate legislation had been exhaustively defined as:
“[O]rder, rules, regulations, scheme, warrant, byelaw, or other instrument made under primary legislation (except to the extent to which it operates to bring one or more provisions of that legislation into force or amends any primary legislation);”
Therefore, in providing the following guidance about the PSW visa in paragraph 46 (my italics) of its judgment the Court of Appeal really did strike the nail very much on its head in relation to the procedural and legal requirements placed upon the Home Secretary for changing the immigration rules:
“That in turn will require consideration of the significance of the criteria by which their eligibility has been gauged and found wanting. It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile. It is another for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant’s ability to continue to live without reliance on public funds. Having £800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1 entry. If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route.”
The Court concluded that the immigration rules are not within the meaning of section 21 of the Human Rights Act 1998 becuase they were deliberately by “choice” not made under primary legislation.
And Sedley LJ added “[s]o long as the rules are what the Immigration Act 1971 says they are they must operate in conformity with the section 6 of the [Human Rights] 1998 Act.” Equally, the Court also found that applicants under Tier 1 (PSW) did enjoy rights under the private life limb of article 8 of the European Convention on Human Rights in pursuing their careers after successful completion of their studies in the UK even if the family life limb of article 8 was not engaged.
Anastasia Pankina, who is from the Russian Federation, must have agreed with every word of Sedley LJ’s judgment and reveled in the fact that as an ideology Marxism in England, albeit quite mildly in pockets, is very much alive and well. The effects of this decision will be felt by the UKBA for a very long time to come.