A landmark judgement was handed down by the Supreme Court on Wednesday in Alvi [2012] UKSC 33 that could mean thousands of refusals made under the UKBA skilled migrant programme and other migration routes were unlawful. This could lead to numerous legal challenges and has left the Home Office and Home Secretary Theresa May looking totally out of sync with the reality of the UK legislative process.
Section 3(2) of the 1971 Immigration Act states that, “The Secretary of State shall from time to time lay before Parliament statements of the rules, or of any changes in the rules, laid down by him.” In layman’s terms what this means is that the changes that the Home Office and Home Secretary decide to make to UK immigration procedure must be properly considered by Parliament if they are changes to actual ‘rules’ governing immigration.
Since September 2008 applications made by migrants under the points based system have had to satisfy criteria laid out in the Occupation Codes of Practice. Jobs are given codes specifying minimum salary and skill level; applications which do not qualify are rejected. Lord Hope in his judgement states that, “any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule”.
Essentially the Supreme Court have declared that any guidance introduced by the Home Office that determines whether a person can enter or remain in the UK amounts to the creation of new Immigration Rules and should be brought before Parliament. Many of the changes that Theresa May and the Home Office have introduced regarding the points based system for skilled migrants, visitor visas and family migration rules have been inserted into guidance rather than laid before Parliament for consideration and addition to UK Immigration Law. This could mean that many recent changes in UK immigration have been introduced unlawfully and therefore cannot be relied upon by the UKBA to refuse visa applications. These changes include; the minimum income thresholds of £18,600 and £22,400 for non-EEA spouses, the introduction of higher skill level requirements under the points based system, advertising requirements for resident-labour market tests, and changes to the shortage occupation list.
The full implications of this ruling are still to be seen and we are waiting to see what the Home Office’s next move will be. With the House of Commons already on summer recess it appears that the Home Office are attempting to put at least some of the recent rule changes, including the changes regarding the codes of practice, to the House of Lords for consideration before it rises for summer recess on 25 July 2012. We also expect that the Home Office will imminently release guidance on visa applications that were refused under unlawful rules. It really is a very exciting ruling that could lead to numerous legal challenges and many migrants’ refusals being overturned, we’ll have to wait and see what happens over the next few weeks.
Keep your eyes on our blog and webinars where we will be closely following the outcome of this landmark decision and of course if you have any queries regarding your own migration status, previous refusals, or if you think you might have grounds for an appeal please feel free to contact one of our advisors to discuss your options.
