Last week, the Supreme Court delivered a significant judgment in the case of R (Alvi) v Secretary of State for the Home Department.
The court found that, under the Immigration Act 1971, any changes to substantive requirements of the United Kingdom immigration controls must be laid before Parliament for scrutiny. This effectively rendered as invalid many of the requirements in the Policy Guidance, Codes of Practice and other documents which set out the provisions of the Points Based System, because these have never been scrutinised by MPs.
Theresa May, The Secretary of State, argued that because immigration control was a matter of royal prerogative she was under no obligation to lay any rules before for Parliament at all. However the Supreme Court rejected this, finding that the royal prerogative to control the entry of aliens has been displaced by statutory limitations, and therefore changes to immigration rules must follow the procedures outlined in the 1971 Act.
A ‘hammer blow’ for the Points Based System?
The Court held that the UK Border Agency’s requirements as set out in the Codes of Practice and the standard occupational classification scheme (including salary levels and skill levels,) could not be relied upon for refusal of an employer’s application for a work visa, or for visa applications by employees.
There was much talk in the media last week of the ‘hammer blow’ (this according to Keith Vaz, chairman of the Home Affairs Select Committee) and ‘the profound effect’ the ruling would have on the Points Based System, and the fact that new minimum salary thresholds for sponsorship of spouses and partners could also be rendered invalid.
However, we have been somewhat cautious to declare that this decision will bring an end to the Points Based System as we know it. We anticipated that the Home Office would simply legalise current immigration policies by pushing them through Parliament as quickly as possible, and this has been the case.
Last Wednesday, a new Statement of Changes was issued by the Home Office, to be laid before Parliament on Thursday and in force by Friday, on an extremely rapid journey through Parliament.
Lord Henley, the Minister of State (Home Office) announced on the 18th July;
‘The Migration Advisory Committee is currently reviewing the Codes of Practice which this judgment requires are included in the rules and we expect a shorter, updated version to be available for inclusion in due course.
The immediate changes to the rules will mean that for applicants under the visitor, PBS and family route the position has not changed. They are required to meet the requirements of the rules and provide the specified evidence that they meet those requirements. The evidence will now be specified in the rules rather than in guidance.’
Effectively, the Codes of Practice affected by the Court’s decision have now been placed within the relevant legislation itself, so that there can be no attempt to challenge them.
However, we are still awaiting guidance on the position for those visa applications which were refused under the unlawful rules, and we will publish this when it is available. It is very probable that there will be many legal challenges on the back of this ruling.
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