Remember Alvi, in June 2009 he was excluded on the new points based system since his salary was not deemed of the required level for a Tier 2 (General Migrant) or his job not sufficiently skilled according to the relevant Code of Practice.
In July, the Supreme Court decided that the code did not satisfy the definition of “immigration rules” for the purpose of S.3(2) of the Act and hence did not have validity for excluding people. It noted: “These codes of practice have been drawn up based on advice from industry experts and the Migration Advisory Committee. They are the official guidance for sponsors and caseworkers.” The Migration Advisory Committee is a non-statutory public body set up to provide advice to the government and sponsored by UKBA. The code therefore does not have the legal power of properly passed immigration rules.
In effect, the court ruling meant that to have excluded people on the basis of these codes was to exclude them without legal sanction – an act done by the Government utilising an advisory organisation while Parliament had no say at all.
Following this judgment, statements of changes to the Immigration Rules were laid before Parliament on 19 July (coming into force on 20 July) and 5 September (coming into force on 6 September). These changes to the Immigration Rules incorporate requirements into the rules that applicants had previously been required to meet but which were contained in guidance or other documents rather than the rules themselves.
The statement of changes to the Immigration Rules laid on 19 July 2012 was preceded by a written ministerial statement on 18 July 2012 delivered in the House of Lords by Lord Henley which stated that ‘guidance on decided cases, where an applicant has been refused on the basis of failure to meet a requirement that they believe should have been in the rules but was not, will be issued soon’.
UKBA has today published the Alvi judgment guidance, the following is a summary of the approach UKBA will take:
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.
At the time of writing the link to the judgement guidance is broken – we’ll keep you informed.