Pankina v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Rimer,Lord Justice Sullivan |
| Judgment Date | 23 June 2010 |
| Neutral Citation | [2010] EWCA Civ 719 |
| Docket Number | Case Nos: 1.C5/2009/2655, 3.C5/2009/1882, 4.C5/2009/2068, 5.C5/2009/1849, 6.C5/2009/1843 1.IA/01396/2009, 2.IA/13975/2008, 3.IA/00411/2009 4.IA/08933/2009, 5.IA/04254/2009, 6.IA/01188/2009 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 June 2010 |
[2010] EWCA Civ 719
Before: Lord Justice Sedley
Lord Justice Rimer
and
Lord Justice Sullivan
Case Nos: 1.C5/2009/2655,
2.C5/2009/1943,
3.C5/2009/1882,
4.C5/2009/2068,
5.C5/2009/1849,
6.C5/2009/1843
1.IA/01396/2009,
2.IA/13975/2008,
3.IA/00411/2009
4.IA/08933/2009,
5.IA/04254/2009,
6.IA/01188/2009
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
1. Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the Appellant
Mr Michael Fordham QC and
Mr Shahram Taghavi (instructed by Simons Muirhead & Burton) for the Respondent
2. Mr Louis Lourdes (instructed by PG Solicitors) for the Appellant
Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the Respondent
3. Mr Zane Malik (instructed by Malik Law Chambers) for the Appellant
Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the Respondent
4. Mr Zane Malik (instructed by Malik Law Chambers) for the Appellant
Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the Respondent
5. Mr Raza Husain QC and Mr Ronan Toal (instructed by Thompson & Co) for the Appellant
Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the Respondent
6. Ms Margaret Phelan (instructed by Thompson & Co) for the Appellant
Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 25 and 26 May 2010
Lord Justice Sedley:
Although the issue which each of these appeals raises looks on its face marginal almost to the point of triviality, it is an issue of constitutional importance and of real difficulty. The issue is whether the executive, in rules which are required, subject to parliamentary oversight, to set out how it proposes to exercise its statutory functions, can lawfully reserve to itself the power to add to or modify those rules. It raises questions about the constitutional status of the immigration rules and about their relation to departmental policy and human rights.
How the issue arises
All the individuals before the court (I will call them applicants, since one is a respondent and the others are appellants) are graduates of approved United Kingdom tertiary institutions who now wish to remain and work here. The immigration rules have for a long time recognised that, subject to proper controls, such individuals can be an asset to this country. The amendments to the rules promulgated as HC 321 and laid before Parliament on 6 February 2008 introduced a points-based system for assessing their eligibility. This was amended by HC 607, laid before Parliament on 9 June 2008, so as to make the provision that was operative at the time when the present applicants sought leave to remain as Tier 1 migrants, a class created “to encourage international graduates who have studied in the UK to stay on and do skilled or highly skilled work” (rule 245V).
By rule 245Z such applicants must meet a series of requirements, one of which is to have a minimum of 10 points under paragraphs 1 and 2 of Appendix C. Paragraph 2 of Appendix C as amended requires the applicant to have “the level of funds shown in the table below” and to provide “the specified documents”. The table contains a single figure, £800, to which it allocates a single value of 10 points (why a table is necessary for this purpose is an enigma we are not required to solve).
The “specified documents”, according to rule 245AA, are “documents specified by the Secretary of State in the Points Based System Policy Guidance as being specified documents for the route under which the applicant is applying”. Failure to produce these will, the rule says, mean failure to meet the requirement to which they relate.
In the policy guidance issued in June 2008 the material class of specified documents is “personal bank or building society statements covering the three-month period immediately before the application” and showing among other things “that there are sufficient funds present in the account (the balance must always be at least …£800 ….)”. In November 2008 this provision was reorganised so as to transfer the continuity requirement from a parenthesis in the description of the specified document to a bullet point under an introductory cross-heading preceding the cross-head “Documents we require”. It now read:
“Applicants … must have at least £800 of personal savings which must have been held for at least three months prior to the date of application.”
The change emphasises what the applicants’ counsel submit is the reality of this part of the policy guidance: that it goes well beyond simply specifying the means of proving eligibility and introduces a substantive further criterion which did not form part of the statement of rules laid before Parliament. It is moreover at this hurdle alone that all but one of the applicants, who are otherwise qualified for leave to remain, fell. Their bank statements showed the requisite sums of £800, but not for three unbroken months preceding their applications.
The constitutional problem
The objection to the use of policy guidance to erect the three-month hurdle lies initially in the primary legislation now governing immigration control, the Immigration Act 1971; but from there it travels into constitutional territory which is still not fully explored.
We have been provided by the parties with a section of the printed case prepared by Treasury counsel for the House of Lords in Odelola v Home Secretary [2009] UKHL 25, which sets out and documents the forms of provision made since the first Aliens Act was passed in 1905 for the administration of the prerogative power of immigration control. From an immigration officer's discretionary (but appealable) judgment under the 1905 Act as to whether an immigrant was undesirable, the system had moved by 1920 to a requirement that aliens must fulfil requirements prescribed in instructions given to immigration officers by the Home Secretary. This model was reproduced in the Aliens Order 1953 and again in the Commonwealth Immigrants Acts 1962 and 1968.
It was the Immigration Appeals Act 1969 which introduced a judicialised system of adjudicators, with appeal to an Immigration Appeal Tribunal, for reviewing decisions adverse to Commonwealth citizens – that is to say, persons who had, or had had, certain rights vis-à-vis the Crown. Such appeals would succeed if the challenged decision or action was “not in accordance with the law or with any immigration rules applicable to the case” (s.8(1): my reason for italicising the word “or” can be seen in §16 below). The 1969 Act went on to do two things which, in retrospect, can be seen to have consciously initiated a division between what had become immigration rules and policy simpliciter. S.24(1) defined immigration rules as “rules made by the Secretary of State for the administration of [control on and after entry], being rules which have been published and laid before Parliament”. S.8(2) provided that for appeal purposes “no decision or action which is in accordance with immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested … to depart, or to authorise an officer to depart, from the rules and has refused to do so”.
In other words, immigration rules had now by law shed the primary characteristic of policy – flexibility – and were required to have at least tacit parliamentary approval. I will come below to the constitutional significance of this. Its immediate result was that the prior existence of a system of departmental rules and instructions, with a status distinct from that of ordinary policy, enabled s.1(4) of the 1971 Act to begin with the definite article:
The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.
Having made this provision for the content of the rules, the Act went on in s.3(2) to provide for their formal submission to parliamentary scrutiny:
The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose...
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