England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 October 2010

Lord Carlile of Berriew QC :

Background

1. The Claimant [C], a 32 year old national of Pakistan, has challenged the decision of the Home Secretary[D] to refuse him leave to remain in the United Kingdom as a Tier 2 (General) Migrant worker.
2. The Claim concerns the points system applicable to potential migrants, introduced by the UK government in November 2008.
3. C asserts that he is entitled to 50 points under the heading of 'sponsorship' even if his occupation does not qualify as sufficient otherwise to allow him leave under the relevant list of skilled occupations.
4. C's occupation is as a physiotherapy assistant. He has worked in that capacity in the National Health Service.
5. Permission to apply for Judicial Review was granted on the 17 March 2010 by Ian Dove Q.C., sitting as a Deputy Judge of the High Court. Permission was granted on a single ground, namely:

"… whether [D's] decision is irrational and unlawful as [C] actually fulfils the requirements of Paragraph 245ZF(e) of the Immigration Rules and is entitled for 50 points under Appendix A."

The history

6. C entered the United Kingdom as a student on the 20 September 2003, with leave to remain until the 31 January 2005. On the 10 January 2005 his leave to remain was extended until 10 February 2009, but as a work permit holder. Since then he has not had leave to remain.
7. On the 9 February 2009 he applied for further leave to remain as a Tier 2 (General) Migrant. His application was certified as invalid, but on the 24 March 2009 he re-submitted his application. It was refused by D on the 18 June 2009.
8. On the 21 September commenced Judicial Review proceedings in respect of D's refusal of the 18 June. On the 12 October 2009 D filed an Acknowledgment of Service, requesting the Court to defer the permission application, pending discussions between the parties.
9. On the 9 February 2010 D issued a new refusal letter, which replaced the earlier refusal of the 18 June 2009. I note that the Deputy Judge, when granting permission to apply for Judicial Review, did not have the new refusal letter before him.
10. The Judicial Review application having continued, D filed detailed Grounds of Resistance on the 6 July 2010.

The Main Legislative Framework

11. The Immigration Rules have their origin in the Immigration Act 1971 section 3(2). The current Rules HC395 have been changed and corrected scores of times since they were first promulgated in the 1993-4 Parliamentary Session.
12. The relevant provision for current purposes is Paragraph 245ZF.

"Paragraph 245ZF. Requirement for leave to remain.

To qualify for leave to remain as a Tier 2 Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirements:

… (e) If applying as a tier 2 (General) Migrant … the applicant must have a minimum of 50 points under paragraphs 85-92 of Appendix A …"

13. So far as relevant, Appendix A provided at the material time:

"Attributes for Tier 2 (General) Migrants

59. An applicant applying for entry or leave to remain as a Tier 2 (General) Migrant or as a Tier 2 (Intra-Company Transfer) Migrant must score 50 points for attributes.

60. Subject to paragraph 61, available points for entry clearance or leave to remain are shown in Table 10.

61. Available points for leave to remain are shown in Table 11 for an applicant.

(b) who has, or was last granted, entry clearance, leave to enter or leave to remain as a Qualifying Work Permit Holder, provided that:

(i) the Sponsor is the same person who was issued with a work permit in the in respect of the application when he was last granted leave, and

(ii) the job that the applicant is being sponsored to do is the same as the one in respect of which the work permit was issued when he was last granted leave, subject to any notification of a permissible change to the details of that employment as defined in United Kingdom Border Agency guidance,

62. Notes to accompany Table 10 and Table 11 appear below the respective tables.

Table 10

Sponsorship

63. In order to obtain points under any category in the 'Sponsorship' column, the applicant will need to provide a valid Certificate of Sponsorship reference number for sponsorship in the sub-category of Tier 2 under which he is applying.

64. A migrant cannot score points for sponsorship from Tables 10 or 11 if the job that the Certificate of Sponsorship Checking Service entry records that he is being sponsored to do is as a Sports person or a Minister of Religion.

65. Points can only be scored for one criterion in the sponsorship column. For example, if a company brings in an intra company transferee after applying the resident labour market test to the post, the migrant will receive either 25 or 30 points, depending on the category he is applying under, not 55.

66. A Certificate of Sponsorship reference number will only be considered to be valid if the number supplied links to a Certificate of Sponsorship Checking Service entry that names the applicant as the migrant and confirms that the Sponsor is sponsoring him in the Tier 2 category indicated by the migrant in his application for entry clearance or leave to remain (that is, as a Tier 2 (General) Migrant or a Tier 2 (Intra-company Transfer) Migrant).

67. A Certificate of Sponsorship reference number will only be considered to be valid if:

(a) the Sponsor assigned that reference number to the
migrant no more than 3 months before the application
for entry clearance or leave to remain is made,

(b) the application for entry clearance or leave to remain is
made no more than 3 months before the start of the
employment as stated on the Certificate of Sponsorship,
and

(c) that reference number must not have been cancelled by
the Sponsor or by the United Kingdom Border Agency since
it was assigned.

68. The migrant must not previously have been granted entry clearance, leave to enter or leave to remain relying on the same Certificate of Sponsorship reference number.

70. In order for the applicant to be awarded points for a job offer in a shortage occupation, the job must, at the time of Certificate of Sponsorship was issued, have appeared on the list of shortage occupations published by the United Kingdom Border Agency, and contracted working hours must be for at least 30 hours a week. Furthermore, if the United Kingdom Border Agency guidance indicates that the job appears on the 'Scotland only' shortage occupation list, the job offer must be for employment in Scotland.

Table 11 Qualifications

Sponsorship	Points	Qualifications	Points	Prospective earnings	Points
Transitional arrangements apply (see below)	50	None, or below an appropriate sub degree level qualification	0	Below £17000	0
[The remainder of the Table shows the points available for, e.g. degree level qualifications and higher earnings]

Notes

Sponsorship

81. Paragraphs 63 to 68 and 70 apply

82. No points will be awarded for sponsorship unless:

(a) (i) the job that the Certificate of Sponsorship Checking Service entry records that the person is being sponsored to do appears on the United Kingdom Border Agency's list of Skilled occupations.

(ii) the applicant is a Senior Care Worker or an Established Entertainer, and

(b) (unless the applicant is an Established Entertainer) the salary that the Certificate of Sponsorship Checking Service entry records that the migrant will be paid is at or above the appropriate rate for the job as stated in the list of skilled occupations referred to in (a) (i)

83. In order to score points in the transitional arrangements category, the applicant must meet the following requirements:

(a) the applicant must have, or have been granted, entry clearance, leave to enter or leave to remain as:

(i) a Qualifying Work Permit Holder,

…

(b) unless the applicant is a senior Care Worker or an Established Entertainer, the Sponsor must be the same person for whom the applicant was working or intending to work when last granted leave. In the context on an applicant whose last grant of leave was as a Qualifying Work Permit Holder, this means that the work permit must have been issued to the same employer as the applicant is applying to work for now,

(c) unless the applicant is a Senior Care Worker or Established Entertainer, the job that the Certificate of Sponsorship Checking Service entry records the applicant as having been engaged to do must be there [sic] same job: an [sic]

(i) in respect of which the previous work permit was issued, in the case of an applicant whose last grant of leave was as a Qualifying Permit Holder.

The Claimant's Case

14. C's work permit allowed him to work as a physiotherapy assistant. His application for leave to remain as a Tier 2 Migrant stated that he would continue in the same job with the same employer. Therefore, it is argued on his behalf, it follows that Paragraph 61(b) of Appendix A above applies to him. Thus, he should receive the 50 points under the transitional arrangements as set out in Table 11 and paragraph 83, as his job is the same as before.

The Defendant's Case.

15. D rejects C's claimed entitlement to take advantage of the transitional provisions on the basis that he need not be qualified within the Skilled occupations list applicable. She argues that C is not entitled to any points because his job as a physiotherapy assistant does not appear in the list of Skilled occupations, described under paragraph 82(a) (i) [above].

Common ground

16. It is common ground between the parties that C's occupation does not fall within the requisite list of Skilled occupations. C's argument is that he does not have to establish an occupation in that list, because he is simply required to demonstrate that he meets the transitional requirements of paragraph 83, to which that list does not apply.

Construction

17. In Odelola v Secretary of State for the Home Department [2009] UKHL 25 Lord Hoffman said:

"[4] Like any other question of construction, this depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy."

18. Relying on this and other consistent judicial comment, Counsel for C argued that the Rules HC395 are not to be construed with all the strictness applicable to statutory construction but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of D's administrative policy. Applying that established principle, he said, if the transitional arrangements were intended to include a requirement that an applicant must meet the Skilled occupation requirements, D would have said so in plain language.
19. Further, says C, the list of skilled occupations is not part of HC395 and has not been laid before Parliament. If D wishes to restrict the award of points to specified occupations, she must do so via the established procedure used often for amendment of HC395, namely by setting out the occupations in those Rules (or in other form with statutory integrity).
20. Particular reliance is placed upon the decision of the Court of Appeal in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719 (in which C's counsel Mr Zane Malik appeared). In his judgment Sedley LJ said:

"17. There is no point in lamenting that things are not as they used to be or that constitutional lawyers no longer know where they are. In the United Kingdom, as the late Professor J.A.G.Griffith memorably said, the constitution is what happens. But to acknowledge, as the courts have done more than once, that the immigration rules are sui generis tells one nothing about what the genus is. In my judgment the time has come to recognise that, by a combination of legislative recognition and executive practice, the rules made by Home Secretaries for regulating immigration have ceased to be policy and have acquired a status akin to that of law. Because they derive from no empowering primary legislation, they cannot be subordinate legislation or therefore open to conventional ultra vires challenges. But as an exercise of public power, which they undoubtedly are, they can be no more immune to challenge for abuse of power or for violation of human rights than any other exercise of the prerogative power, including prerogative Orders in Council: see R v CICB, ex p Lain [1967] 2QB 864; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61; [2007] EWCA Civ 498.

…

28. A policy is precisely not a rule: it is required by law to be applied without rigidity, and to be used and adapted in the interests of fairness and good sense. To take the present case, the policy guidance standing alone would not only permit but require a decision-maker to consider whether, say, a week's dip below the £800 balance during the three-month period mattered. This would in turn require attention to be given to the object of the policy, which is to gauge, by what is accepted on all sides to be a very imprecise rule of thumb, whether the applicant will be able to support him- or herself without recourse to public funds. If that object was sensibly met, the law might well require the policy to be applied with sufficient flexibility to admit the applicant, or would at least require consideration to be given to doing so. But if the requirement is a rule – and it is the Home Secretary's case that by incorporation it becomes a rule – then there is no discretion and no judgment to be exercised.

29. This in itself would in my opinion require the three-month criterion to form part of the rules laid before Parliament if it was to be effective. But the objection goes deeper. Albeit the first version of the policy guidance was brought into being within the 40 days allowed by s.3(2) for the Parliamentary procedure, it has been open to change at any time. It is this, rather than the fact that it has in the event been changed, which, in answer to question (1)(c), is in my view critical. It means that a discrete element of the rules is placed beyond Parliament's scrutiny and left to the unfettered judgment of the rule-maker."

21. It was submitted further that, in R (English UK Ltd) v Secretary of State for the Home Department [2010] EWHC 1726 (Admin) , Foskett J in applying Pankina held that the rationale of that decision is to be applied as the general principle that external documents that have not undergone Parliamentary scrutiny do not have the status of procedurally supported Rules. In the present case, argued counsel for C, D is treating as a Rule her policy relating to requisite qualifications, albeit she can change that policy at any time she wishes.
22. Mr Barnes for D submitted that the objections by C failed to understand the process by which the Rules HC395 had been changed. The material Immigration Rules dealing with Tier 2 Migrants were introduced by Statement of Changes HC1113 of the 4 November 2008. Table 11 [extract above] provides that points may be awarded for sponsorship, qualifications and prospective earnings; and provides, under the heading of sponsorship, that 50 points will be awarded under the heading of sponsorship where the transitional arrangements apply.
23. The UK list of skilled occupations is found on the UKBA website in the Tier 2 Codes of Practice. This was not a document itself laid before Parliament on the 4 November 2008 with the Statement of Changes in the Immigration Rules, but was placed on the Home Office website on the 28^th November 2008, and from that date was publicly available at all times and known to legislators and others.
24. Parliamentary procedure allows for members of either and both Houses of Parliament to 'pray against' a Statement of Changes in the Rules under the negative resolution procedure. There is a time limit for such prayers of 40 days. The Tier 2 Codes of Practice were laid well within the 40 days 'pray against' time limit, and therefore a prayer could have been laid on the grounds that the Codes should be included in the Rules. This did not occur. Nor was any objection made by the Parliamentary Committee that routinely scrutinises secondary legislation.
25. Paragraphs 242 and 243 of the Tier 2 Policy Guidance, dealing with the transitional arrangements, advised applicants:

"[Transitional arrangements] applications must comply with the following conditions … the certificate of sponsorship must confirm that the job is at N/SVQ3 .."

26. D argues that, it being common ground that C's occupation did not meet the requisite skills level, she has acted lawfully in refusing him leave to remain. Had she intended to exclude those who fall within the transitional arrangements from the restrictions imposed by Appendix A paragraph 82(a)(i) [above], that would have been stated explicitly. Further, the advisory guidance makes D's intention clear.
27. D argues that the transitional arrangements were not put in place to enable all applicants who have held a work permit in the past to obtain a work permit in the future. The purpose and effect of the transitional provisions is that those who fall within them will score 50 points without having to satisfy the other Tier 2 criteria (e.g. qualifications, prospective earnings, and the resident labour market test): but it is a requirement that they pass the skills criterion. C, it is argued, has no route to obtaining leave without fulfilling that skills criterion.
28. On the Pankina point, D argued before me that the effect of the decision was to reject a more onerous requirement that formed no part of the Immigration Rules placed before Parliament for approval. For that reason Foskett J in R (English UK Ltd v SSHD [cited above] said of Pankina:

"[59] The ratio of the decision appears to me to be that a provision that reflects a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involves a true Parliamentary scrutiny: see paragraphs 6, 22 and 33 of the judgment. The statutory foundation for such a conclusion is section 3(2) of the Act".

and

"[77] All these features have led me to the conclusion that, whatever Parliament may have intended by the phraseology of rule 120(a), it cannot be taken to have intended that a material change to the minimum educational attainments of would-be students that was in the extant guidance when the rule was formulated should be changed without the full Parliamentary scrutiny afforded by the negative resolution procedure.

78. In one sense, this is no more than applying in this context the approach adopted by the Court of Appeal in Pankina and supported in large measure by Bapio. For my part, I am unpersuaded that the distinction Mr Sheldon seeks to make between that case (where there was no reference to UKBA guidance in the original rule) and the present case (where such reference was made) can legitimately be drawn. I am acutely conscious that Parliament decides how it deals with these matters and it is not for the court to intervene. However, it is the court's task to decide if the end result of a process is in accordance with the law: see paragraph 25 of the judgment in Pankina. A material or substantive change in the administration of immigration control is, by virtue of section 3(2), to be placed before Parliament for consideration pursuant to the negative resolution procedure. There is nothing wrong with an immigration rule that refers to the use of guidance provided that the guidance is not then used to change in a material way the effect of the rule or the effect of extrinsic guidance available at the time of its promulgation. To that extent, I do not accept Mr Sheldon's contention that the logical consequence of the submissions made on behalf of the Claimant is that rule 120(a) is ultra vires section 3(2). All that would be unlawful would be the making of a material change in immigration policy pursuant to guidance permitted by the rule. If the rule expressly permitted such guidance to be issued "from time to time", different considerations may arise because Parliament could arguably be said to have approved a course that left open the possibility of making a material change by guidance. Nonetheless, even that course could founder in the light of the express terms of section 3(2). However, that issue does not fall to be determined in this case.

79. For those reasons, I consider that I am bound, by virtue of the reasoning in Pankina, to declare as unlawful the changed minimum educational requirements of those applying to study English in the UK. Since no challenge is made to any other aspect of the changes made, any declaration of invalidity (if that is considered the appropriate relief) should be confined to that feature of the changes."

29. It should be borne in mind that the UKBA list of skilled occupations is a very large volume that will require to be amended and added to from time to time, and would not be suitable for inclusion in the Rules. It is referred to in the Rules, which are approved by Parliament.
30. D submitted that there can be no objection in law to the course followed by D, provided that changes do not offend Pankina and R (English UK Ltd) by changing in a material or substantive way the effect of the Rules or the effect of extrinsic guidance available at the time of promulgation.

My conclusion on the construction point.

31. In my judgment C's proposition – that it is unlawful for D to enforce a requirement that applicants for leave to remain for work purposes have certain skill levels, without every job and skill being listed in detail in the Immigration Rules themselves (requiring a Parliamentary process to change the list) – is unrealistic and certainly not a legal requirement. It was not the intention of Parliament that the skills list should be an intrinsic part of the Rules or subject to specific Parliamentary legislative approval. The existence of the Tier 2 Codes of Practice and Policy Guidance does not involve changing in a material and substantive way the effect of the Rules or material extrinsic guidance. There is no breach of the principles set out in Pankina and in R (English UK Ltd).
32. As a result, C's application must fail.