Today’s Supreme Court decisions on the immigration rules

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A bad day in court for the Home Secretary
Image reproduced under Creative Commons Licence

The Supreme Court has given judgment in two cases today concerning the immigration rules. The judgments have been described as “perhaps the most important in immigration law since the Immigration Act 1971 was passed”. So what were the cases about – and why are they so significant?

The Immigration Act is the legal framework for determining when people not having the “right of abode” in the UK may enter and remain in the country. But, as is often the case, the Act does not lay down detailed rules determining how individuals’ cases are to be decided. Instead, the Home Secretary makes rules setting out the details. Crucially, section 3(2) of the Act says that the Home Secretary must “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”.

In the cases decided by the Supreme Court today, the claimants had been denied permission to remain in the UK on the basis of rules that had not been laid before Parliament in accordance with section 3(2) of the Act. This meant (said the claimants) that the rules were unenforceable – and that they could not therefore be denied permission to remain on the strength of the rule. In one of the cases (the other can be found here), the claimant succeeded.Two crucial issues arose.

  • Another power?  Did the Home Secretary have a separate power – one not arising under the Immigration Act – to make immigration rules? If so, she could argue that the disputed rule was made under that other power, and that it therefore did not need to be laid before Parliament. No, said the Supreme Court. Any other powers that the Home Secretary might have had to regulate immigration were extinguished by the 1971 Act, which was intended to be a comprehensive code of immigration law. This part of the judgment reinforces a crucial constitutional principle – that when Parliament lays down the law, the Government cannot get around it by relying on its so-called “prerogative”, or common law, powers.
  • When is a rule not a “rule”?  Could it be argued that the policy applied to the claimant’s detriment wasn’t actually a “rule” – and so didn’t need tot be laid before Parliament? The claimant had been denied leave to remain because he was not doing a “skilled” job: but the definition of a “skilled” job had never been laid before Parliament. Was that definition a “rule” (such that it ought to be laid)? Yes, said the Court: any requirement that, if not satisfied, will cause the claimant to be denied permission to enter or remain in the country is a “rule”.

This may all sound very technical – and, on one level, it is. But it is likely to have profound practical implications in the short term, since it “drives a coach and horses through the thousands of meticulously detailed pages” of immigration policy (which the Government didn’t lay before Parliament because it didn’t think they were actually “rules”). In the longer term, the Government may get Parliament to amend the Immigration Act, so that it is not necessary to lay all of the rules before Parliament.

That sounds like a neat solution – but as Lord Hope explained in the Supreme Court: “What Parliament was insisting on [by passing section 3(2)] was that [the Home Secretary] should lay her cards on the table so that the rules that she proposed to apply, and any changes that were made to them, would be open to scrutiny.” And so some bigger questions arise. How much of its law-making power is it proper for Parliament to share with the Government (eg by allowing it to make rules of the type that were at stake in this case)? And, when Parliament does share this sort of power, how carefully should its exercise be scrutinised by Parliament?

Want to read more? 

If you want to read more about this case, here are some suggestions:

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