QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE BURTON
|THE QUEEN ON THE APPLICATION OF JOINT COUNCIL FOR THE WELFARE OF IMMIGRANTS||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Mr H Southey QC & Ms A Weston (instructed by Aston Brooke Sols) appeared on behal of of the Second Claimant
Mr J Swift QC & Miss J Clement (instructed by Treasury Solicitor) appeared on behalf of the Defendant
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"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
"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.
"The Changes in this Statement shall take effect on 19 July 2010.
1. In Appendix A, after the heading 'Sponsorship' and before paragraph 63, insert:
'63A. The Secretary of State shall be entitled to limit the number of Certificates of Sponsorship available to be assigned to Sponsors in any one period, and to limit the number of Certificates of Sponsorship assigned to any specific Sponsor in any one period. These limits will be specified in the Points Based System guidance."
There has been no formal consultation with corporate partners outside government on the introduction of interim limits in general or on this change in particular. The Government is consulting formally on its longer term plans to implement limits on economic migration. The Government's concern, in the interests of effective immigration control, to ensure that early limits are in place whilst that consultation exercise is undertaken has precluded any earlier consultation on the operation of these interim limits. This change consolidates the Government's position in respect of the interim limits under Tier 2."
"From the Committee's consideration of the Statement, there are a number of areas that the House may wish to explore. These include: whether the Government's analysis of the impact of the changes on the number of the applicants is accurate; whether the case for interim limits has been fully made; whether the changes will have any specific equality impacts; and the Government's reasoning for not putting the actual limit in the Statement itself (which would make it subject to Parliamentary scrutiny). As the Government intends looking later at Tiers 3, 4 and 5 of the PBS, the House may wish to satisfy itself that any changes to those Tiers will take full account of the learning coming out of this exercise."
Paragraph 14 of the Committee's report said this:
"An important feature of these changes is that the actual limit imposed on applications for Tier 1 (General) applications is not in the Statement. The EM [Explanatory Memorandum] says that the limit to be applied to the Tier 1 (General) category will be published separately by UKBA on their website. This matters because the Statement is subject to formal Parliamentary scrutiny, but guidance issued by UKBA is not. UKBA has explained that the limit itself is to be set out in guidance to provide UKBA with flexibility in administering the limit from month to month. Shortly before the meeting with the Minister JCWI submitted details of a recent judgment dealing with substantive changes to immigration policy, which were not subject to formal Parliamentary scrutiny. The Minister said that she was aware of recent judgments on the issue, and that the Government has as a result decided to alter the way in which the Tier 2 changes are to be implemented, but not to make any further alterations in respect of the Tier 1 changes. However, the actual limit imposed for Tier 1 (General) would seem to be an important matter, and the House may wish to consider further the Government's reasoning for not putting the proposed Tier 1 (General) limit in the Rules themselves. For instance, the House may wish to examine whether under the proposed system Ministers would be able, if they wished, to set the Tier 1 (General) limit at zero, through an administrative act subject to no Parliamentary control. The House might also wish to consider whether the Government's desire for flexibility could by met by setting an overall limit in the Rules themselves, with the UKBA then given the ability to vary the month-by-month quotas in order to provide the desired flexibility."
"Interim limit for Tier 1 (General) applications.
(1) On 19 July 2010, the UK government introduced a limit on the number of initial applications from outside the UK that can be granted under Tier 1 (General) of the points-based system until 31st March 2011.
(2) The UK Border Agency is administering the limit on a monthly basis. However, the way that you apply for permission to enter the UK under Tier 1 (General) remains the same.
(3) If your application meets all the requirements and the limit has not been reached for the month when you applied, we will issue a visa in the usual way.
(4) If your application meets all the requirements but the limit for that months would be exceeded if we issue a visa, we will defer your application to the next month when the limit allocation reopens. If your application does not meet the requirements, we will process it as normal even if the limit has been exceeded. You can still submit your application even when a monthly limit has been reached."
[paragraph numbers added for convenience].
"The UK Border Agency is administering the limit by calender month. The limit is 600 issued Tier 1 (General) visas every calender month. If the limit is not reached in any given calender month, the unused capacity will be carried forward to the following month. However, the way that you apply for permission to enter the UK under Tier 1 (General) remains the same."
The UK Border Agency is introducing an interim limit on applications submitted under Tier 1 (General) and Tier 2 (General) of the Points Based System. The aim of this limit is to achieve an overall reduction of 5% in the number of applicants in these categories compared to the equivalent period last year. This interim limit will run from 19th July 2010 to 31st March 2011...
The interim limit will be implemented by limiting the number of Certificates of Sponsorship (CoS) each sponsor can assign to migrant workers.
All licenced Tier 2 (General) sponsors should have received a letter dated 1 July 2010 from Jeremy Oppenheim UK Border Agency Regional Director for North East Yorkshire and the Humber, notifying them of the introduction of an interim limit on Tier 2 (General). From 19th July 2010 onwards Tier 2 (General) sponsors will receive a further detailed letter setting out their individual CoS allocation for the period.
We have reserved a small number of CoS available for exceptional cases that meet specified criteria as set out below. You can request CoS from this reserved allocation if you are:
• A new sponsor licensed during the period of the interim limit; or
• An existing sponsor who requires additional CoS in exceptional circumstances during the period of the interim limit.
The following sections of guidance set out the implications of the introduction of the interim limit for existing and new sponsors.
All licensed sponsors within Tier 2 (General) will receive an individual letter notifying them of their CoS allocation for the period of the interim limit.
The interim limit has been calculated by assessing the CoS usage of each sponsor for the equivalent period from 19 July 2009 - 31st March 2010. We have then applied a reduction to each sponsor who used 2 or more CoS during this period, leaving a pool of unallocated CoS for distribution to new sponsors and existing sponsors who have special requirements.
Please note that some sponsors will be given a zero allocation for this period. This means that they continue to remain licensed by the UK Border Agency and are able to continue to sponsor any existing migrants they employ who have valid leave. However, they are not able to assign a CoS to any new migrants or to existing employees who require an extension to their leave."
The Addendum went on to set out the criteria that would be applied by UKBA if an applicant for a COS asked for "Exceptional Consideration".
"We intend to implement the interim limit by reducing the number of Certificates of Sponsorship (CoS) available to both existing Tier 2 sponsors and the new sponsors who apply during the course of the interim period. We will use the number of CoS you used in the equivalent period last year as the basis of our calculation.
We will write to each sponsor in the coming weeks to let you know how your current CoS allocation will be affected during the interim limit period. The UK Border Agency does expect all sponsors who used more than two CoS in the period 19th July 2009 to 1 April 2010 to use less for the equivalent period this year."
We have been shown specimen copies of the second letter. So far as material that told the individual sponsor:
"We will implement the interim limit by limiting the number of Certificates of Sponsorship (CoS) each sponsor can assign to overseas workers from outside the EEA.
For existing sponsors who were licensed during the equivalent period last year (19 July 2009 - 31 March 2010), their CoS allocation for the interim limit will be calculated based on their usage during this period. All sponsors who used more than 2 CoS in this equivalent period will be given a reduction in their allocation for the period of the interim limit.
A small number of CoS have been reserved for 'exceptional consideration' that meet specific criteria as set out in guidance available on the UK Border Agency website [the link is given]. Sponsors can request CoS from this reserved allocation if they are.
• A new sponsors licensed during the period of the interim limit; and
• An existing sponsor who requires additional CoS in exceptional circumstances during the period of the interim limit.
Your Allocations of Certificates of Sponsorship.
Your CoS usage during the period 19 July 2009 to 31 March 2010 was [zero]. You used CoS when you assigned it to a migrant who then goes on to use it in a leave to enter or leave to remain application.
Therefore, your allocation for the period of the interim limit is [zero] CoS.
If you require any CoS for the period of the interim limit then you can submit a request for exceptional consideration. Please see below for further details ..."
"This methodology was as follows.
(1) Existing sponsors who were licensed during the equivalent period in the previous year (19th July 2009 to 31 March 2010) would have their CoS allocation calculated based on their usage during this period. Thus sponsors who used zero CoS had a limit of zero CoS for the interim limit period.
(2) Sponsors who used just one CoS during this period had a limit of one CoS set for the period. (3) Sponsors who used two to five CoS had a limit which is the same as the number of CoS they used last year minus one.
(4) Sponsors who used six or more CoS had their limit reduced by 15% to give them their new allocation ...
The interim limit for Tier 2 was set at 18,700. The Secretary of State also recognised that some sponsors might require an addition allocation of CoS above their interim allocation, and that CoS might be needed by new sponsors. Accordingly, the total number of CoS allocated directly to sponsors for the interim period was 15,980 (85% cent of the total of 18,700). 2,720 CoS (15% of the total) were reserved for 'exceptional consideration'. That meets specific criteria set out in the Tier 2 PBS guidance. Accordingly, a degree of flexibility was built into the system to meet this possibility. If individual sponsors consider that their allocation of CoS is insufficient, they have the opportunity to request additional CoS using a Tier 2 (General) 'request for additional or additional allocation of certificates of sponsorship' form (the 'CoS (AR)' form). An application can be made at any time during the interim period."
The Grounds of Challenge
(1) Both claimants contend that the manner in which the limits for Tier 1 and Tier 2 were imposed is unlawful in the light of the decision of the Court of Appeal in Pankina v Secretary of State for the Home Department  EWCA Civil 719,  3 WLR 1526 ("Pankina")
(2) ECCA contends that the interim limits on the availability of COS in Tier 2 are unlawful because the defendant was under a duty to consult before imposing those limits and she failed to do so ("Consultation").
(3) ECCA also contends that the "Exceptional Consideration" policy in the Addendum, as published on 19th July, or as amended in November, is so inflexible as to be Wednesbury irrational ("Irrationality"). I will deal with these three grounds in turn.
The Pankina ground
"1(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."
"3(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)."
"3 By paragraph 245Z of HC 395 (inserted by paragraph 29 of HC 607) such applicants must meet a series of requirements, one of which is to have a minimum of ten points under paragraphs 1 and 2 of Appendix C to HC 395 (as substituted by paragraph 55 of HC 607). 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 ten points (why a table is necessary for this purpose is an enigma we are not required to solve).
4 The 'specified documents', according to paragraph 245AA of HC 395 (inserted by paragraph 18 of HC 607, are 'documents specified by the Secretary of State in the Tier 1 of 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.
5 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.'
6 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."
Having considered the legal status of the Immigration Rules in some detail Sedley LJ said in paragraph 22:
"The three-month test did not form part of the rules so laid. The first question is whether, this being so, it was of any legal effect."
"(1) Can the immigration rules lawfully incorporate provisions set out in another document which (a) has not itself been laid before Parliament (b) is not itself a rule of law but a departmental policy and (c) is able to be altered after the rule has been laid before Parliament?"
"... 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.
It may be objected that this is pettifogging: all that the three-month provision in the policy guidance is doing is firming up a requirement in the rules. But Ms Giovannetti, [who was appearing on behalf of the Secretary of State] with her customary candour, has taken no such point. Instead she has recognised that, if her argument is sound, it means that the Home Secretary may lawfully lay before Parliament a rule which says simply that graduates may be given leave to remain in accordance with such policy as the Home Secretary may from time to time adopt, and that so long as Parliament passes no negative resolution the relevant policies will become rules and, on appeal, law. Indeed it can only be in order to insist on such a principle that the Home Secretary did not long ago take the simple step of amending Appendix C to include the three-month test."
Sedley LJ responded to this submission made on behalf of the defendant in paragraph 33 of his judgment:
"33 In my judgment the statutory recognition of rules which are to have the character and, on appeal, the force of law requires such rules to be certain. That does not shut out extraneous forms of evidence of compliance, so long as these are themselves specified, but it does in my judgment shut out criteria affecting individuals' status and entitlements which - coming back now to the questions in para 23 above - (a) have not themselves been tendered for parliamentary scrutiny, and (c) even if ascertainable at that point of time, may be changed without fresh scrutiny. As to (b), while the fact that the criterion absorbed into the rules comes from a policy document makes nonsense of the notion of policy, this is not critical: the vice would be the same if the reference in the rules were to a categorical criterion in some external but impermanent or undetermined source."
In paragraph 37 he expressed his: "conclusion on the constitutional issue":
"37 The three-month criterion formed no part of the rules applicable to these cases. The only relevant criterion was the requirement in Appendix C that they should have £800 at the time of application..."
"Points will only be awarded for a Confirmation of Acceptance for Studies (even if all the above requirements are met) if the course in respect of which it is issued meets each of the following requirements:
(a) The course must meet the United Kingdom Border Agency's minimum academic requirements, as set out in sponsor guidance published by the United Kingdom Border Agency ..."
The minimum academic requirements were not specified in the Rules, but they were set out in UKBA's Tier 4 Sponsorship Guidance. The minimum level of course specified in the Guidance was A2. The defendant thereafter altered the Guidance so as to specify a level B2 course as the minimum level of course. Having considered Pankina, Foskett J said in paragraph 59:
"59. The Court of Appeal held that the revised criterion could not be put in place by virtue of the process of issuing guidance. 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."
In paragraph 77 Foskett J concluded 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."
"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."
The applicant's job did not appear in UKBA's list of skilled occupations. He nevertheless contended that this was of no consequence because the list could have no legal effect if it was not part of the Rules, it not having been laid before Parliament. In paragraph 29 Lord Carlisle said:
"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."
Lord Carlisle's conclusion in paragraph 31 was as follows:
"In my judgment [the claimant's] proposition – that it is unlawful for [the defendant] 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)."
The consultation and rationality grounds
"...the impact of the authority's past conduct on potentially affected persons must, again, be pressing and focussed. One would expect at least to find an individual or group who in reason have substantial grounds to expect that the substance of the relevant policy will continue to enure for their particular benefit: not necessarily for ever, but at least for a reasonable period, to provide a cushion against the change. In such a case the change cannot lawfully be made, certainly not made abruptly, unless the authority notify and consult."
"It is hereby declared:
1. The Secretary of State did not specify any grant allocation as defined in paragraph 6 of HC 395 as amended by HC 59, or any limit on the number of certificates of sponsorship available to be assigned to sponsors within the meaning of paragraph 63A of appendix A to HCC 95, as amended by HC 96 or any limit on the number of certificates to be assigned to a specific sponsor within the meaning of the said paragraph 63A; and
2. As a consequence there are not now and have never been any interim Tier 1 or Tier 2 limits pursuant to the amendments made by HC 59 and HC 96."
The first bit is possibly a bit cumbersome but I think it is accurate.