Challenging the Restriction on Alvi’s Scope

Like its predecessor Statement of Changes Cm8423, the explanatory memorandum to Statement of Changes HC 565 expressed the government’s regret in relation to the fact that the changes to the Immigration Rules did not (yet again) comply fully with the convention that such changes should be laid before Parliament no less than 21 days before they come into force.

This was, of course, highlighted as a matter of special interest for the Joint Committee on Statutory Instruments or the Select Committee on Statutory Instruments which should (in theory) have scrutinised the changes to the Immigration Rules but did not. The government’s excuse in sidestepping Parliament in implementing Alvi [2012] UKSC 23 – the UK Supreme Court’s judgment which sits at the apex of interpreting section 3(2) of the Immigration Act 1971 and Parliament’s role in approving the Immigration Rules – is to preserve the integrity of the Immigration Rules and to insulate them from further legal challenge. Broadly speaking the changes brought into force by Statement of Changes HC 565 entail:

  • Including requirements to be met by migrants where those requirements are not currently in the rules but are specified in guidance external to the rules.
  • Incorporating compulsory screening for pulmonary tuberculosis for migrants coming to the UK for over 6 months, from some specified countries.
  • Ensuring the rules relating to family and private life reflect the policy intention and work with the provisions for dependants of Points Based System migrants.
  • Improving the operation of the Tier 1 (Exceptional Talent) provisions through refined eligibility criteria, allowing some in-country switching and reducing bureaucracy.
  • Adding Botswana and Malaysia to Annex H, which is the list of countries and regions from which applicants are subject to different documentary requirements under Tier 4 of the Points Based System.
  • Amending the table of Government Approved Exchange Schemes within Tier 5 (Temporary Worker).
  • Correcting some typographical errors.

In Alvi, the Supreme Court explained that any requirement which, if not satisfied by the migrant, would lead to an application for leave to enter or remain being refused is a “rule” within the meaning of section 3(2) of the 1971 Immigration Act and must therefore be approved by Parliament.

In order to satisfy the test imposed on the government by the UK’s court of final recourse, after dithering for more than seven weeks the UK Border Agency finally published the Alvi judgment guidance on 7 September 2012.

In sum the government’s approach is that:

  • Any application outstanding at the time the changes to the rules made on 19 July and 5 September came into force will be decided on the basis of the rules in force at the time of decision.
  • The UK Border Agency will not reconsider cases which were decided before the judgment where the time for bringing an appeal or judicial review has expired.
  • Any case which is currently subject to appeal or judicial review proceedings, or in which the time for bringing an appeal or judicial review has not yet expired, will be considered in line with the judgment on the individual circumstances of the case.

What does this remind us of?

Let’s turn the clock back a bit …

In the wake of the Pankina [2010] EWCA Civ 719 judgment (now more than two years old and, in the first instance, the source of the government’s woes inconnection to section 3(2) of the Immigration Act 1971), in order to restrict the scope of what Sedley LJ (as he then was) had said the UK Border Agency tailored their reconsideration policy. This end was achieved by limiting Pankina’s effect by applying the judgment only to:

  • Migrants who applied for further leave to remain under Tiers 1, 2, 4 and 5 of the Points Based System (PBS), including dependants, who applied up to and including 22 July 2010; and

(i) Were refused on Maintenance (Funds) only; and

(ii) Were lawfully in the United Kingdom at the time of requesting reconsideration.

  • Applied for entry clearance under Tiers 1, 2, 4 and 5 of PBS, including dependants; and

(i) Applied between 23 June and 22 July 2010 (inclusive); and

(ii) Were refused on Maintenance (Funds) only.

For the avoidance of doubt, these reconsideration requirements which were ushered in after Pankina can be corroborated by the historic snapshot of UK Border Agency’s website on the National Archive: please see the announcement and the PBS Maintenance (Funds) policy document.

Just one limitation expressed in the above terms of review or reconsideration was that while pre-23 June 2010 in country applications were reconsidered within the meaning of the Pankina judgment but out-of-country applications were excluded from the reconsideration process (which the UK Border Agency introduced subsequent to the Court of Appeal’s judgment on 23 June 2010).

Despite this restriction on the Pankina judgment, in cases where claimants took legal action, review the UK Border Agency did eventually grant visas under the threat of judicial to overseas applicants who were deliberately excluded from the reconsideration process.

Alvi: excluded individuals 

In taking the line that it has done in relation to the Alvi judgment and not reconsidering cases which were decided before the judgment where the time for bringing an appeal or judicial review has expired, the UK Border Agency has deprived a massive chunk of the Alvi judgment’s (potential) beneficiaries from its scope by using dilatory tactics from 18 July 2012 until 7 September 2012 by delaying issuing guidance in relation to the reconsideration process.

In relation to the judicial review point, the UK Border Agency seeks to rely on the literal wording of Part 54 (which deals with judicial review) of Civil Procedure Rules (“CPR”) 1998 which states:

Time limit for filing claim form


(1) The claim form must be filed –

(a) promptly; and

(b) in any event not later than 3 months after the grounds to make the claim first arose.

(2) The time limit in this rule may not be extended by agreement between the parties.

(3) This rule does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review.

So what can one do?

A lot of people whose PBS visas were refused because of requirements – such as the list of skilled occupations – which were then outside the Immigration Rules will be just a little short of the conditions for reconsideration concocted by the UK Border Agency.

But it is not impossible to mount arguments against the inherently unreasonable reconsideration “rules”.

Firstly, there is discrimination between applicants under the reconsideration process. Why should someone whose application was refused but is no longer within the timescale for an appeal or judicial review be treated any differently than another person whose application was refused more recently (that too for the same reason)? It is entirely reasonable to request the UK Border Agency for detailed reasons why this is.

In any event, if an applicant is outside the time limits imposed for judicial review (three months from the date of decision) it is worth noting that under rule 3.1(2)(a) of the CPR a court may (for good reason) retrospectively make an order extending the time for compliance with any rule, practice direction or court order even after the time limit in question has expired:

(i)             The courts accept that good reason exists where the applicant is unaware of   the decision provided that the applicant acts expeditiously once he or she became aware of it: see Ex Parte Word Development Movement Ltd [1995] 1 WLR 386.

(ii)           The fact that the claim raises issues of general public importance may suffice as a good reason to extend time: see Ex Parte Ruddock [1987] WLR 1482, S (Application for Judicial Review), Re [1998] 1 FLR 790. On any view, a matter of public importance clearly arises in respect of the government’s approach in implementing the Alvi judgment.

(iii)          Delay outside the applicant’s control may be excusable: see Ex Parte Jackson [1985] 1 WLR 1319. The fact that it took the government 50 days to implement Alvi was not in applicants’ control: it speaks for itself.

If the above principles worked in the favour of people who were deliberately excluded from the scope of the Pankina judgment, it is difficult to see why these principles should not be of some help to those people who have been excluded from reconsideration of the Alvi judgment.

It is noteworthy that many people who have been excluded from reconsideration under the Alvi judgment are individuals who had studied in the UK, switched to the (now extinct) Post Study Work category and wished to extend their stay in the UK under Tier 2 (General) but were hampered from doing so because of requirements outside the rules. Despite Theresa May’s article 8 bashing, where part of the factual matrix allows it such people would also logically be entitled to raise their right to a private and family life in challenging, through judicial review, the decisions to refuse their visas.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Alvi, Article 8, Judicial Review, Pankina, PBS, Sedley LJ, UKSC and tagged , , , . Bookmark the permalink.

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