Following the Supreme Court judgment in the case of R (Alvi) v Secretary of State for the Home Department, the UKBA has issued a brief statement explaining how it has responded to the findings of the Court.
In the case which was decided on the 18th July 2012, the Supreme Court found that any UK immigration 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 reviewed and agreed by Parliament.
The UKBA reacted instantly by issuing a Statement of Changes which came into force on the 20th July 2012 and placed requirements which applicants have previously needed to meet but which were contained in guidance rather than the actual Immigration Rules, into the Rules themselves.
This was followed by another Statement of Changes which came into force last week on the 6th September 2012, correcting errors in the previous statement and creating some new requirements.
What about migrants whose cases were decided on the basis of guidance which was not at that time in the rules?
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.’
The UKBA has now published the Alvi judgment guidance, along with a summary of the approach they intend to adopt:
“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.”
If you are seeking to challenge a decision on the grounds outlined above, then you should check when the allotted time in which you can bring an appeal or judicial review will expire, and ensure you lodge your appeal request in good time.
Should you require any further clarification then do not hesitate to contact us.