R (on the Application of Alvi) v Secretary of State for the Home Department [Sup Ct]

JurisdictionEngland & Wales
JudgeLORD HOPE,LORD DYSON,LORD WALKER,LORD CLARKE,LORD WILSON
Judgment Date18 July 2012
Neutral Citation[2012] UKSC 33
CourtSupreme Court
Date18 July 2012
R (On the Application of Alvi)
(Respondent)
and
Secretary of State for the Home Department
(Appellant)

[2012] UKSC 33

Before

Lord Hope, Deputy President

Lord Walker

Lord Clarke

Lord Dyson

Lord Wilson

THE SUPREME COURT

Trinity Term

On appeal from: [2011] EWCA Civ 681

Appellant

Jonathan Swift QC

Joanne Clement

(Instructed by Treasury Solicitors)

Respondent

Zane Malik

(Instructed by Malik Law Chambers Solicitors)

Intervener (Joint Council for the Welfare of Immigrants)

Richard Drabble QC

Shahram Taghavi

Charles Banner

(Instructed by Lewis Silkin LLP)

Heard on 24, 25 and 26 April 2012

LORD HOPE
1

The respondent, Hussain Zulfiquar Alvi, is a citizen of Pakistan. He was born on 5 November 1977. On 20 September 2003 he entered the United Kingdom as a student, with leave to remain until 31 January 2005. After completing his studies he applied for leave to remain here as a physiotherapy assistant. On 10 February 2005 he was granted leave to remain as a qualifying work permit holder until 10 February 2009. For the next four years he worked as a physiotherapy assistant at a clinic in Kensington.

2

On 9 February 2009 Mr Alvi applied for further leave to remain in this country. A few months prior to that date the work permit regime had been replaced by a points-based system. It came into effect on 27 November 2008. So Mr Alvi applied for leave to remain under that system as a Tier 2 (General) Migrant. His application was rejected as invalid on 24 February 2009 because a mandatory section of his application form had not been completed. He re-submitted his application on 24 March 2009. It was refused on 18 June 2009 because the Secretary of State was not satisfied that his salary was appropriate for a job at the required level. On 21 September 2009 Mr Alvi applied for judicial review of the Secretary of State's decision. On 9 February 2010 the refusal of 18 June 2009 was replaced by a revised decision letter. In that letter it was stated that Mr Alvi did not satisfy the requirements of the Immigration Rules for the relevant category because his job title as an assistant physiotherapist was not of the level of skilled occupations required by the rules.

3

The ground of refusal was set out in the letter of 9 February 2010 in these terms:

"On 24 March 2009 you applied for leave to remain in the United Kingdom as a Tier 2 (General) Migrant under the Points Based System (PBS). An official has considered your application on behalf of the Secretary of State.

You have claimed 50 points under certificate of sponsorship, but your clients [sic] job title stated on the application form and Certificate of Sponsorship as Assistant Physiotherapist does not meet as a job role that is above NVQ or SVQ level 3. The codes of practice document at the time of the application stated that this job role is below N/SVQ level 3. You have not therefore been awarded any points under certificate of sponsorship.

Therefore you do not satisfy the requirements of the immigration rules for this category and it has been decided to refuse your application for leave to remain as a Tier 2 (General) Migrant under paragraph 245ZF(e) of the Immigration Rules."

4

Mr Alvi was given permission to apply for judicial review on 17 March 2010. The application was heard on 28 September 2010. It was common ground that his occupation as a physiotherapy assistant did not fall within the list of skilled occupations as required by paragraph 82(a)(i) of Appendix A to the Immigration Rules. The following arguments were advanced on his behalf:

(1) that he did not need to comply with paragraph 82(a)(i) as he had an existing work permit, so all he had to do was to satisfy the transitional provisions set out in paragraph 83 of the Appendix to which the list of skilled occupations does not apply; and

(2) that in any event the list of skilled occupations was not part of the Immigration Rules, as the document in which that list was set out had not been laid before Parliament under section 3(2) of the Immigration Act 1971.

5

His claim for judicial review was dismissed on 25 October 2010. The Deputy Judge, Lord Carlile of Berriew QC, did not deal expressly with the first of these two arguments but his disposal of the claim shows that he must have rejected it. As for the second argument, his conclusion was that it was not the intention of Parliament that the list of skilled occupations, which was to be found in the UK Border Agency's website in the Tier 2 Codes of Practice, should be an intrinsic part of the Immigration Rules or subject to specific Parliamentary approval: [2010] EWHC 2666 (Admin), para 31. Mr Alvi was given permission to appeal to the Court of Appeal. On 9 June 2011 the Court of Appeal (the President (Sir Anthony May), Jackson and Tomlinson LJJ) allowed his appeal on the second argument and quashed the Secretary of State's decision of 9 February 2010 to refuse his application for leave to remain. On 18 November 2011 the Secretary of State was given permission to appeal to this court. Her appeal was heard together with the appeal in R (Munir and another) v Secretary of State for the Home Department [2012] UKSC 32.

The legislative framework
6

Section 1(2) of the Immigration Act 1971 provides that those not having a right of abode in the United Kingdom may live, work and settle here by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by the Act. Section 1(4) is in these terms:

"(4) 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."

Section 3(1), as amended by section 39 of the British Nationality Act 1981 and paragraphs 43 and 44(1) of Schedule 14 to the Immigration and Asylum Act 1999, provides that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of or made under the Act, that he may be given leave to enter or remain for a limited or for an indefinite period and that if he is given leave to enter or to remain in the United Kingdom it may be given subject to conditions restricting his employment or occupation or requiring him to register with the police.

7

Section 3(2) of the 1971 Act makes the following provision with regard to the rules mentioned in section 1(4) above. It provides:

"(2) 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 or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).

If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid)."

It is common ground that the code of practice document referred to in the refusal letter of 9 February 2010, which stated that the appellant's job role was below N/SVQ level 3, had not been laid before Parliament under this subsection.

8

Sections 3A and 3B of the 1971 Act, which were inserted by sections 1 and 2 of the Immigration and Asylum Act 1999, state that the Secretary of State may by order make further provision with regard to the giving, refusing or varying of leave to enter and leave to remain. Section 3C, as substituted by section 118 of the Nationality, Immigration and Asylum Act 2002, confers similar powers on the Secretary of State with regard to the continuation of leave pending a decision to vary. Section 4(1) provides that the power under the 1971 Act to give or refuse leave to enter the United Kingdom is to be exercised by immigration officers, and that the power to give leave to remain in the United Kingdom or to vary any leave is to be exercised by the Secretary of State. Paragraph 1(3) of Schedule 2 to the Act provides that in the exercise of their functions immigration officers "shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given to them by the Secretary of State."

9

Questions as to the meaning and effect of section 3(2) of the 1971 Act lie at the heart of this appeal, and I will have to return to them later. For the time being I note that in Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230, para 6 Lord Hoffmann said:

"The status of the immigration rules is...

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