Rules win out

The Supreme Court has handed down a decision in an immigration case which could have a significant impact on how immigration controls are applied in future, as well as opening the door to claims by those seeking to challenge immigration decisions based on UKBA guidance.

The judgment in the appeal case of R (on the application of Alvi) v Secretary of State for the Home Department was delivered on 18 July.  The Supreme Court dismissed an appeal by the Home Secretary against an earlier Court of Appeal decision which overturned a decision to refuse Mr Alvi a visa extension under Tier 2 (general) of the points based system.

The decision turned on the distinction between the immigration ‘rules’, which are made under the Immigration Act 1971 and subject to review by Parliament, and ‘guidance’ on those rules which is issued from time to time by the UKBA without Parliamentary review.

Mr Alvi’s application for a visa extension was rejected because his job as an assistant physiotherapist was below the required NVQ level 3.  This requirement was contained not in the immigration rules themselves, but in the accompanying guidance for sponsors.  The Court’s view was that any requirement which was determinative of someone’s entitlement to a visa must be regarded as a ‘rule’, and thus should be subject to Parliamentary scrutiny in accordance with the provisions of the Act.  As the requirement which was applied to Mr Alvi was contained in guidance only, it was unenforceable and his visa application should have been granted.

In its detailed judgement the Court made some fairly critical comments about the Home Office’s micromanagement of immigration controls, whilst acknowledging that the need to follow existing Parliamentary procedures for every change in the guidance will be extremely burdensome.  The Court recommended a wholesale review of how immigration law and policy is applied, although this seems unlikely in the current political climate.

In the meantime, however, the judgment opens the way for other challenges to UKBA decisions, including challenges by education institutions, particularly private providers, who have found themselves falling foul of increasingly prescriptive UKBA guidance.  Indeed, the Court refers to a recent case involving New London College Limited, where a challenge to a decision made under the Tier 4 guidance was rejected by the Court of Appeal but where an application for leave to appeal to the Supreme Court is pending.   There is also increased scope for disappointed students or applicants to challenge visa decisions, where those decisions are based on guidance rather than the detail of the immigration rules.

Joanna Forbes

Senior Associate Solicitor

Education Team

For and on behalf of SGH Martineau LLP

DD: 0800 763 1310

M: 07725 241552

F: 0800 763 1710

International DD: +44 870 763 1310

E: joanna.forbes@sghmartineau.com

W: www.sghmartineau.com

From → General Interest

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