Immigration cap declared unlawful by High Court

In the High Court Lord Justice Sullivan and Mr Justice Burton have declared that Mrs Theresa May unlawfully side-steped Parliamentary scrutiny when setting the limits to Tiers 1 and 2 which she introduced in July 2010. Since Sedley LJ  restored constitutional order in Pankina things have been hard for the SSHD as the decision’s application against the UKBA is endemic. The High Court also followed its earlier decision in the JR case of English where Foskett J found himself bound by Pankina’s ratio.

Moreover, Mrs May must be quickly learning it is an unenviable task to have to be the home secretary. Almost every home secretary this century has been susceptible to scandal and it seems that Mrs May is no exception.

According to Lord Justice Sullivan and Mr Justice Burton at the moment no lawful limits are in place for Tier 1 (General) and Tier 2 (General) visa applications from overseas. The decision totally rubbishes the government’s immigration policy and the limits it set, in October and November 2010 for example, are all unlawful.

The ruling was a landmark victory for the JCWI and ECCA both of whom had pursued judicial review proceedings against the home secretary on the issue of the immigration cap.

The government introduced its interim cap on visas for Tier 1 (General) highly-skilled migrants and the number of CoS which would be assigned to for Tier 2 (General) skilled workers following its election victory in May 2010.

It is expected that the government intends to introduce a permanent limit on non-EU workers in April 2011. New categories under the rules are also expected to be introduced early next year.

The JCWI’s barrister Richard Drabble QC, argued at the High Court in London that the Home Secretary acted ultra vires her powers by introducing changes to the immigration rules after her party’s ascent to power.

Lord Justice Sullivan said that “[t]he secretary of state made no secret of her intentions” and that:

There can be no doubt that she was attempting to side-step provisions for Parliamentary scrutiny set up under provisions of the 1971 Immigration Act, and her attempt was for that reason unlawful

Sullivan LJ also explained that:

In my judgment no interim limits were lawfully published or specified by the secretary of state for either Tier 1 or Tier 2… and there is not, and never has been, a limit on the number of applicants who may be admitted either under Tier 1 or the number of certificates of sponsorship that should be issued to Tier 2 sponsors.

Mrs May, the home secretary, introduced her illegal immigration cap to keep the Tory party’s electoral promise. The pledge was a crucial allurement in determining the outcome of the 2010 general election and white voters concerned about immigration threw their lot in with the Tories because of it. Since then, contrary to their election manifesto, the Liberal Democrats have followed in the footsteps of the white voters by favouring the cap.

Immigration Minister Damian Green stated: “I am disappointed with today’s verdict. We will study the judgment and will appeal it, if we have grounds.” Mr Green should note that the High Court’s decision was not a “verdict”. Verdicts are pronounced by juries in crown courts (or criminal courts) and in JR applications there are no verdicts. But since he, like his boss the SSHD, is guilty of being quite oblivious to the law the decision must have felt like a verdict.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in AP (Russia), Employment, Immigration Cap, Immigration Rules, Judicial Review, Tier 1, Tier 2 and tagged , , , . Bookmark the permalink.

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