Supreme Court Judgement On PBS Policy

This week the Supreme Court gave judgment in the case of R (on the application of Munir and another) (Appellants) v Secretary of State for the Home Department (Appellant) and R (on the application of Alvi) (Respondent) v Secretary of State for the Home Department (Appellant).

The Secretary of State for the Home Department enjoys a power under the Immigration Act 1971 to issue Immigration Rules to govern the entry, stay and residence of persons who do not have the right of abode in the UK.

The question before the Supreme Court in both cases concerned what the meaning of the words “The Rules” requires and more importantly the procedure by which rules are placed before Parliament for their scrutiny and consideration.

In Alvi the issue for the court was the impact of the failure to include the Standard Occupational Classification Code of Practice (SOC), which set out the conditions to be fulfilled by employers when recruiting foreign nationals, within the Immigration Rules. Policy guidance and codes of practice are not placed before Parliament for scrutiny and consideration in the way that substantive immigration rules are. The question for the court was whether the requirements within these policy documents have the status of “rules” and should therefore be made subject to parliamentary scrutiny before acquiring full legal effect.

In Munir the questions concerned former extra statutory policy DP5/96 which governed the circumstances in which Indefinite Leave to Remain would be granted to parents of those children who resided in the UK for more than 7 years: whether this constituted a rule which had to be laid before Parliament for its scrutiny, and whether withdrawal of the policy also required Parliamentary scrutiny.

In both cases the Supreme Court found that the substantive criteria defined the Rules as

“any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). A provision which is of that character is a rule within the ordinary meaning of that word.” Lord Dyson

The key requirement is that the Immigration Rules should include ALL those provisions which set out criteria which are or maybe determinative of an application for leave to remain.

In the case of Alvi the Supreme Court held that “Any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of Section 3(2)”. A “rule” that must be laid before Parliament by way of the procedure under Section 3(2) of the Immigration Act 1971.

Therefore, in Alvi the failure to include the SOC Code containing determinative criteria within the Rules meant that the Immigration Rules were incompatible with the Immigration Act 1971 because the SOC codes had not received Parliament scrutiny. As a result any substantive criteria contained in the Immigration Rules were unlawful and should not be applied.

In Munir the Supreme Court found that the policy did not have the character of a Rule because it was discretionary in its nature and application: For that reason it therefore did not need to be laid before Parliament.

The implications of the Judgement are enormous. From now on the Immigration Rules must be written in a way so that they contain each and every criteria to be met by an applicant, including criteria only previously set out in policy guidance, in order for Parliament to be in a position to scrutinise the Rules properly.

Equally, any decision made to refuse an applicant leave to remain based on criteria not contained within the Immigration Rules but rather contained in policy guidance, SOC codes, shortage occupation lists or other extraneous documents will be an unlawful decision.

We are aware that the government will make changes to the Immigration Rules to come into force on 20 July in order to safeguard their lawful operation. The immediate changes to the rules will mean that for future applicants under the visitor, PBS and family routes the position has not changed.  However, applicants who have had previous refusals may have appeal options worth pursuing and should take advice immediately.