Joint Council for The Welfare of Immigrants (R) v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SULLIVAN,MR JUSTICE BURTON |
| Judgment Date | 17 December 2010 |
| Neutral Citation | [2010] EWHC 3524 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 December 2010 |
| Docket Number | CO/10079/2010 |
[2010] EWHC 3524 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Sullivan
Mr Justice Burton
CO/10079/2010
Mr R Drabble QC & Mr S Taghavi (instructed by Bates Wells & Braithwaite) appeared on behalf of the Joint Council for the Welfare of Immigrants
Mr H Southey QC & Ms A Weston (instructed by Aston Brooke Solicitors) appeared on behalf of the English Community Care Association
Mr J Swift QC & Miss J Clement (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Introduction
In these two claims for judicial review the claimants challenge the imposition by the defendant of interim limits on (1) the number of applicants for entry clearance who may be issued with visas under Tier 1 (General) of the Points based system (PBS); and (2) the number of certificates of sponsorship (COS) that may be issued under Tier 2 (General) of the PBS. The claim of the Joint Council for the Welfare of Immigrants (JCWI) challenges the interim limits in respect of both Tier 1 (General) and Tier 2 (General). The English Community Care Association's (ECCA's) challenge is confined to the interim limits in respect of Tier 2 (General). The two claims were ordered to be heard together because they raise similar issues as to lawfulness of the interim limits. This hearing has been expedited. We are most grateful to all the parties for their very helpful submissions, both written and oral, which have enabled us to give our judgments this afternoon which is the last occasion this term on which we shall be sitting together as a Divisional Court.
Background
The background to the imposition of the interim limits is set out in considerable detail in the witness statement dated 8th December 2010 of Lee Bartlett, Deputy Director of PBS Sponsorship at the UK Border Agency (UKBA). For present purposes, the following summary will suffice. The PBS was introduced in 2008. It consolidated approximately 80 immigration routes into the United Kingdom into a 5 tier system. Tier 1 is for highly skilled workers from outside the EEA. It aims to attract "the brightest and best" to the United Kingdom as workers or as business people. There are four sub-categories in Tier 1. In these proceedings we are concerned only with Tier 1 (General). No interim limits have been applied to the other sub-categories in Tier 1. Further references in this judgment to Tier 1 will therefore be references to Tier 1 (General). Prior to 19th July 2010, when interim limits were imposed, a Tier 1 applicant had to score a minimum of 95 points under various headings. As part of the interim measures that score was increased to a minimum of 100 points. No complaint is made about this aspect of the amendments of the changes to the Immigration Rules. Tier 2 is concerned with skilled workers and provides a mechanism whereby United Kingdom employers may employ non-EEA workers to fill particular posts which cannot be filled by settled workers. There are a number of sub-categories in Tier 2. We are concerned only with Tier 2 (General). No interim limits have been applied to the other sub-categories in Tier 2. I will refer to Tier 2 (General) as Tier 2 in the remainder of this judgment.
Tier 2 applicants have to score a minimum of 70 points, including 50 points for various attributes, but, unlike Tier 1 applicants, Tier 2 applicants must provide a valid COS reference number in order to obtain points for attributes. COSs are allocated by prospective employers to applicants wishing to enter the United Kingdom. An employer who wishes to employ a non-EEA Tier 2 worker must obtain a licence from UKBA to act as a sponsor. A licenced sponsor will be allocated a certain number of COS by the Secretary of State. A sponsor may then issue a COS to an intended employee in certain defined circumstances: (a) if the employment is a "shortage occupation" as designated by the Migration Advisory Committee (MAC); or (b) if the job could not suitably be filled by a United Kingdom or EEA worker, even though it is not designated as a shortage occupation; or (c) if the employee has been working for a sponsor for at least 6 months under a specified "post-study work" immigration category.
In its claim ECCA is concerned with the impact of the interim limits on the recruitment of skilled senior care workers. Their jobs have been designated by the MAC as a "shortage occupation" for the purposes of Tier 2. One of the principal differences between Tier 1 and Tier 2 is that the latter is in effect "employer led": the applicant must produce a COS from his/her intended employer. A Tier 1 applicant does not need to be sponsored by an employer.
Prior to 19th June 2010 there was no limit on the number of Tier 1 applicants, nor was there any overall limit on the number of employees who could be admitted under Tier 2, or on the number of COSs that would be made available to any particular employer. An employer might not be allocated the full number of COS requested, but such a decision would be based on UKBA's view of the justification for the request by that particular employer taking into consideration factors such as the employer's size, its track record on immigration matters and so forth.
In the recent General Election, the Conservative Party's manifesto said that it would take steps to reduce net migration into the United Kingdom and in particular that it would set "an annual limit on the number of non-EU economic migrants admitted into the United Kingdom to live and work." That manifesto commitment was adopted as Government Policy by the Coalition Government in its publication: "The Coalition Our Programme for Government".
It was against this policy background that the Secretary of State for the Home Department, Mrs May announced in Parliament on 28th June 2010 that she was launching a consultation on the mechanisms for implementing an annual limit. She said that she would make final announcements about the first full annual limit before the end of this year, and she has subsequently done so.
On 28th May 2010 she also said:
"It is important that today's announcement does not lead to a surge of applications during this interim period, which would lead to an increase in net migration, undermining the purpose of the limit and putting undue strain on the UK Border Agency. I am therefore also taking a number of interim measures, and I have laid a statement of changes to the immigration rules in support of those measures. First, I am introducing an interim limit on the number of out-of-country main applicants to tier 1 (general). For 2010-11, this route will be held flat from the equivalent period for 2009-10. The tier 1 routes for investors, entrepreneurs and the post-study route are not affected. Secondly, to ensure that those who do come through this route are the brightest and best, I am raising the tier 1 (general) pass mark by five points for all new applicants.
Thirdly, I am introducing an interim limit on the number of migrants who can be offered jobs by sponsor employers through tier 2 (general). This route will be reduced in the interim period by 1,300 migrants, the equivalent of a 5% reduction across the relevant routes of tiers 1 and 2…. These interim measures will take effect from 19th July."
These proceedings are concerned with the manner in which the first and third of those interim measures were implemented by the Secretary of State.
The Changes to the Immigration Rules
HC 59 was laid before Parliament on 28th June 2010. It deals with applications under Tier 1. The relevant changes are as follows:
"The changes in this Statement shall take effect on 19 July 2010. However, if an applicant has made an application as a Tier 1 (General) migrant before 19 July 2010 and the application has not been decided before that date, it will be decided in accordance with the Rules in force on 18 July 2010.
1. In paragraph 6, insert after the definition of a Tier 1 (General) Migrant:
'In Part 6A of these Rules, 'relevant grant allocation period' means a specified period of time, which will be published by the Secretary of State on the UK Border Agency website, during which applications for entry clearance or leave to enter in respect of a particular route may be granted subject to the grant allocation for that period;
In Part 6A of these Rules 'grant allocation' means a limit, details of which will be published by the Secretary of State on the UK Border Agency website, on the number of grants of entry clearance or leave to enter which may be granted in respect of a particular route during the relevant grant allocation period;'
2. In paragraph 245C, insert after',the application will be refused':
'If the application would be refused only by reason of failing to meet the requirement in paragraph (aa) below, it will be reallocated to the next relevant grant allocation period for consideration.
3. In paragraph 245C insert:
'(aa) The grant allocation relating to the Tier 1 (General) Migrant route would not be exceeded by granting the application for entry clearance or leave to enter in the relevant grant allocation period.'"
The remainder of HC 59 deals with the increase in the number of points required from 95 to 100.
HC 96 was laid before Parliament on 15th July 2010. With effect from the 19th July...
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