The vanishing prerogative

Munir & Anor, R (on the application of) v Secretary of State for the Home Department [2012] UKSC 32 (18 July 2012) 

In these two appeals, the critical question before the Supreme Court was whether the SSHD’s statements in relation to her policy of granting concessions (outside the Immigration Rules) and their subsequent withdrawal are statements as to “the practice to be followed” – as set out in section 3(2) of the Immigration Act 1971 – which must be laid before Parliament. Hitting the nail on the head, Lord Wilson held that there was no basis for arguing that the Immigration Rules were non-statutory in origin: para 39.  

Deportation Policy 5/96 (“DP 5/96”)

Initially introduced in 1996, this policy concerned deportation in cases involving children with long residence: its purpose was to clarify the criteria to be applied in immigration decision making in connection whether enforcement action ought to be taken against parents whose children were born in the UK and were aged 7 or over; or arrived in the UK when very young and have accumulated 7 years or more continuous residence. DP 5/96 was, hence, also called the “seven-year child concession.” Although each case had its merits, factors specified in the policy were accorded relevance in decision-making.

In 1998, the Long Residence Concession was issued by the SSHD, via chapter 18 of the Immigration Directorates’ Instructions allowing people, in the absence of countervailing factors, to be granted settlement (or Indefinite Leave to Remain, ILR) on the basis of 10 years (lawful) and 14 years residence and these were later incorporated into the Immigration Rules (paragraphs 276A – 276D) without the concession being formally withdrawn. Children were, however,  not included in these rules.

In comparison, DP 5/96 was revised in 1999 and contained a general presumption against enforcement action where children either born or resident in the UK for 7 years were involved but the policy nonetheless identified factors which were relevant to making a decision on whether enforcement action should nonetheless be taken. In December 2008, DP 5/96 was withdrawn with immediate effect by the SSHD’s junior Immigration Minister whose written ministerial statement to Parliament claimed that the Human Rights Act 1998 had “overtaken” the concession and that children’s long residence in the UK would still be considered while deciding their parents’ removal and the removal of a family would be made in accordance with the ECHR and the Immigration Rules.

In truth, the policy was withdrawn in order to prevent rights from accruing to overstayers and unlawful entrants to the UK because it “induced illegal immigration.” One 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.

Factual Background

Rahman (R) and Munir’s (M) applications for leave to remain were refused because DP 5/96 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 which was unlawful.

R, a Bangladeshi, arrived in the UK on a visit visa with his wife and two children in 2001. After an initial attempt at extending their visas failed, the family remained in the UK unlawfully and in mid-2009 they applied for ILR but this was refused because they did not satisfy paragraph 276B of the Immigration Rules and that there were no compassionate or compelling grounds for leave to be granted and article 8 ECHR was not disproportionately interfered with. Following a judicial review challenge, Judge Bidder QC quashed the refusal decision and ordered the SSHD to reconsider the application under the policy because the decision was irrational. To deny Mr Rahman and his family the benefit of DP5/96 despite them accruing 7 years residence prior its withdrawal, without warning, was so conspicuously unfair that it amounted to an abuse of power.

M, a Pakistani, remained in the UK unlawfully after entering in 2002 on a visit visa with his wife and daughter. Some years after the birth of a son in 2005, an ILR application outside the rules relying on article 8 EHCR was made in late 2009 and subsequently refused in mid-2010. Like R, M took judicial review proceedings. But since he accepted that his children had not been resident in the UK for 7 years, the rationale in R’s case did M no good. In considering the impact of removal, the SSHD granted both families discretionary leave pursuant to article 8. But the SSHD, nevertheless, still appealed the decision in R’s case and resisted M’s appeal.

The Court of Appeal

Allowing the SSHD’s appeal, the Court of Appeal (Stanley Burnton, Thomas and Moore-Bick LJJ, read judgment here) was ”unable to see how they [Rahman and Munir] could sensibly have been entitled to have it [DP 5/96] applied to them”: para 48. For the Court, para 38, the 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.

The Supreme Court

Argument in the Court arose, on the one hand, between the appellants’ submission that any statement of a concessionary policy to which was more advantageous to migrants than a rule which provided for granting leave clearly entailed a statement of a change within the meaning of section 3(2) of the 1971 Act because it was a statement of administrative practice. On the other hand, Mr Swift QC, for whom the SSHD was under no legal obligation to lay the rules before Parliament, submitted that controlling immigration fell squarely within the prerogative and that a policy which was more favourable to migrants (such as DP 5/96) was not a statement of practice caught by section 3(2). The Court found the latter argument to be anachronistic.

Lord Dyson, who approached the SSHD’s position with caution, explained that earlier immigration legislation such as the Commonwealth Immigrants Act 1962 and the Immigration Appeals Act 1969 made no reference to the prerogative and thus a subsequent prerogative power to control immigration could not be restored “by some process of alchemy”: para 23. For his Lordship, the power to make immigration rules is derived from the 1971 Act and this is expressed in its long title – “to amend and replace the present immigration laws, to make certain related changes in the citizenship law and enable help to be given to those wishing to return abroad, and for purposes connected therewith.”

The fact that Parliament chose to preserve prerogative power in section 33(5) of the 1971 Act shows that it “was alive to the existence of the prerogative power in relation to enemy aliens” but “prima facie” the Act’s whole purpose is “to define the power to control immigration and say how it was to be exercised”: para 26. Whilst the power conferred or duty imposed by the 1971 Act was not express, Lord Dyson held that the power to make immigration rules and the duty to do the same was “implicit in the language of the Act” and hence fell “under the statute”: para 27, original emphasis.

It was also the case that section 1(4) placed an implicit obligation upon the SSHD to lay down rules as to the practice to be followed in administering the 1971 Act for regulating for entry and stay of those without the right of abode. Thus, under the drafting of the Act, rather than enjoying discretion to lay down rules before Parliament if she decided to do so, the SSHD had both the power and duty to lay down rules of practice. Had the latter not been imposed, the Act would surely have made it clear that she enjoyed the power but was not burdened with a duty: para 28.

Equally, under section 3(2) of the 1971 Act (although not expressly stated), Parliament was given a “degree of control” over the SSHD’s practice for regulating immigration control and, consequently, if the SSHD were free to avoid Parliamentary scrutiny, “the plain purpose of section 3(2) would be frustrated” which “cannot have been intended by Parliament”: para 29.

Noting that many detailed powers were derived from the Act, Lord Dyson elaborated that

In particular, the power to make rules and to grant and vary leave to enter and remain is vested in the Secretary of State by the Act. The exercise of that power is an exercise of statutory power and not the prerogative. The prerogative has never been exercised over Commonwealth citizens. It had been exercised over (at least) enemy aliens and the power to continue to exercise the prerogative power for that limited purpose was expressly preserved by section 33(5) of the 1971 Act. But if (contrary to my view) the prerogative power was exercisable in order to control immigration of Commonwealth citizens before the 1971 Act came into force, then the power was implicitly abrogated or, at least, suspended by the Act: see, for example, AG v de Keyser’s Royal Hotel Ltd [1920] AC 508, 539-40.

Moreover, the Supreme Court thought that Odelola [2009] UKHL 25 did not help the SSHD because that case’s ratio was merely that “immigration rules apply when they say they take effect” and their Lordships’ views on whether the rules were subordinate legislation “were not necessary for their decision”: para 40.

At para 41, the Court rejected the SSHD’s argument that if a policy such as DP 5/96 was a rule as to the practice to be followed in administering the 1971 Act, then the SSHD had no legal obligation to lay it before Parliament. Lord Dyson also noted that despite other case law pointing to the contrary (which was “incorrect”), it was clear that the Act “itself was the source of the power to grant leave to enter or remain outside the immigration rules”: para 44, see especially section 3(1)(b) and (c) where the statutory language “clearly and without qualification” provides that non British citizens may be granted limited or indefinite leave to enter or remain in the UK.

However, the above not notwithstanding Lord Dyson held that DP 5/96 was clear about each case standing up on its own merits. Thus, the policy – which set out “that certain specified factors might (not would) be of particular relevance in reaching a decision” – was not a statement of practice within the meaning of section 3(2) of the 1971 Act and did not need to be laid before Parliament because it was “amply flexible … and not an immigration rule”: para 46. From this perspective, the Supreme Court found in the interests of brevity not to deal with Stanley Burnton LJ’s “proves too much” point.

The Supreme Court’s Judgment is available below

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, Cases, Children, Court of Appeal, Human Rights Act, UKSC and tagged , , , , . Bookmark the permalink.

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