R (on the application of JCWI) v SSHD [2010] EWHC 3524

This is the judgment of the PBS judicial review.

JCWI have posted a blog entry on the decision. Immigrants are very grateful to the Council for their leadership.

At paragraph 37 the Court stated:

It follows, in my judgment, that no interim limits were lawfully published or specified by the Secretary of State for either Tier 1 or Tier 2 in accordance with HC 59 or HC 96, and that there is not, and has never been a limit on the number of applicants who may be admitted under either Tier 1 or the number of COS that may be issued to Tier 2 sponsors.

At paragraph 38 the Court elaborated further that:

We are bound by Pankina, but, perhaps unsurprisingly, I would follow Pankina even if we were not so bound. The Secretary of State has to administer the 1971 Act. The Act recognises that the Secretary of State will be laying down rules as to the practices that she will follow in administering the Act, and requires those rules to include provision for certain matters (see section 1(4)). The Act also requires the Secretary of State to lay before Parliament any changes in the rules as to the practice to be followed (see section 3(2)). The purpose of laying the changes before Parliament is to give Parliament an opportunity within a period of 40 days, of expressing its disapproval of the changes.

And at paragraph 42 Sullivan LJ emphasised that:

I readily accept that there is a spectrum and that in enacting section 3(2) Parliament did not intend that every alteration to the Secretary of State’s practice, however minor should be subject to the scrutiny of Parliament. It is unnecessary to consider the precise point in the spectrum at which Parliamentary scrutiny is not required because the quantification of the limits on the number of applicants who may be admitted under Tier 1 and Tier 2 is, on any basis, at the very top end of the spectrum. Alterations to the limits of those who may be permitted to enter under Tiers 1 and 2, whether the limits are 6, 60, 600 or 6,000 per month or per year are precisely the kinds of substantive changes that should be laid before Parliament. They are most certainly not to be equated with UKBA’s list of skilled occupations which are very much at the other end of the spectrum.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Immigration Cap, Immigration Rules, Pankina, PBS, Tier 1, Tier 2 and tagged , , , . Bookmark the permalink.

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