England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		17th December 2010

1. LORD JUSTICE SULLIVAN:

Introduction

2. In these two claims for judicial review the claimants challenge the imposition by the defendant of interim limits on (1) the number of applicants for entry clearance who may be issued with visas under Tier 1 (General) of the Points based system (PBS); and (2) the number of certificates of sponsorship (COS) that may be issued under Tier 2 (General) of the PBS. The claim of the Joint Council for the Welfare of Immigrants (JCWI) challenges the interim limits in respect of both Tier 1 (General) and Tier 2 (General). The English Community Care Association's (ECCA's) challenge is confined to the interim limits in respect of Tier 2 (General). The two claims were ordered to be heard together because they raise similar issues as to lawfulness of the interim limits. This hearing has been expedited. We are most grateful to all the parties for their very helpful submissions, both written and oral, which have enabled us to give our judgments this afternoon which is the last occasion this term on which we shall be sitting together as a Divisional Court.

Background

3. The background to the imposition of the interim limits is set out in considerable detail in the witness statement dated 8th December 2010 of Lee Bartlett, Deputy Director of PBS Sponsorship at the UK Border Agency (UKBA). For present purposes, the following summary will suffice. The PBS was introduced in 2008. It consolidated approximately 80 immigration routes into the United Kingdom into a 5 tier system. Tier 1 is for highly skilled workers from outside the EEA. It aims to attract "the brightest and best" to the United Kingdom as workers or as business people. There are four sub-categories in Tier 1. In these proceedings we are concerned only with Tier 1 (General). No interim limits have been applied to the other sub-categories in Tier 1. Further references in this judgment to Tier 1 will therefore be references to Tier 1 (General). Prior to 19th July 2010, when interim limits were imposed, a Tier 1 applicant had to score a minimum of 95 points under various headings. As part of the interim measures that score was increased to a minimum of 100 points. No complaint is made about this aspect of the amendments of the changes to the Immigration Rules. Tier 2 is concerned with skilled workers and provides a mechanism whereby United Kingdom employers may employ non-EEA workers to fill particular posts which cannot be filled by settled workers. There are a number of sub-categories in Tier 2. We are concerned only with Tier 2 (General). No interim limits have been applied to the other sub-categories in Tier 2. I will refer to Tier 2 (General) as Tier 2 in the remainder of this judgment.
4. Tier 2 applicants have to score a minimum of 70 points, including 50 points for various attributes, but, unlike Tier 1 applicants, Tier 2 applicants must provide a valid COS reference number in order to obtain points for attributes. COSs are allocated by prospective employers to applicants wishing to enter the United Kingdom. An employer who wishes to employ a non-EEA Tier 2 worker must obtain a licence from UKBA to act as a sponsor. A licenced sponsor will be allocated a certain number of COS by the Secretary of State. A sponsor may then issue a COS to an intended employee in certain defined circumstances: (a) if the employment is a "shortage occupation" as designated by the Migration Advisory Committee (MAC); or (b) if the job could not suitably be filled by a United Kingdom or EEA worker, even though it is not designated as a shortage occupation; or (c) if the employee has been working for a sponsor for at least 6 months under a specified "post-study work" immigration category.
5. In its claim ECCA is concerned with the impact of the interim limits on the recruitment of skilled senior care workers. Their jobs have been designated by the MAC as a "shortage occupation" for the purposes of Tier 2. One of the principal differences between Tier 1 and Tier 2 is that the latter is in effect "employer led": the applicant must produce a COS from his/her intended employer. A Tier 1 applicant does not need to be sponsored by an employer.
6. Prior to 19th June 2010 there was no limit on the number of Tier 1 applicants, nor was there any overall limit on the number of employees who could be admitted under Tier 2, or on the number of COSs that would be made available to any particular employer. An employer might not be allocated the full number of COS requested, but such a decision would be based on UKBA's view of the justification for the request by that particular employer taking into consideration factors such as the employer's size, its track record on immigration matters and so forth.
7. In the recent General Election, the Conservative Party's manifesto said that it would take steps to reduce net migration into the United Kingdom and in particular that it would set "an annual limit on the number of non-EU economic migrants admitted into the United Kingdom to live and work." That manifesto commitment was adopted as Government Policy by the Coalition Government in its publication: "The Coalition Our Programme for Government".
8. It was against this policy background that the Secretary of State for the Home Department, Mrs May announced in Parliament on 28th June 2010 that she was launching a consultation on the mechanisms for implementing an annual limit. She said that she would make final announcements about the first full annual limit before the end of this year, and she has subsequently done so.
9. On 28th May 2010 she also said:

"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

10. HC 59 was laid before Parliament on 28th June 2010. It deals with applications under Tier 1. The relevant changes are as follows:

"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.

11. HC 96 was laid before Parliament on 15th July 2010. With effect from the 19th July 2010 it changed the Rules relating to Tier 2, as follows:

"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."

12. In each case the Statement of Changes was accompanied by an Explanatory Memorandum and the Memorandum referred to an Impact Statement. Paragraph 8.1 of the Explanatory Memorandum accompanying HC 96 explained why there had been no consultation prior to the introduction of the interim limits:

"Consultation

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."

13. HC 59 was considered by the Merits of Statutory Instruments Committee of the House of Lords in its Fourth Report of Session of 2010-2011 published on 16th July 2010. The Committee drew HC 59 to the special attention of the House of Lords on the ground that "...it gives rise to issues of public policy likely to be interest to the House."
14. The summary of report included the following passage:

"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."

15. The changes in the Immigration Rules which were effected by HC 59 said that the interim limit for the purposes of Tier 1 "will be published by the Secretary of State on the UK Border Agency website." HC 96 said that the limits imposed by the Secretary of State on (i) the number of COS available to be assigned to sponsors and (ii) the number of COS assigned to any specific sponsor "will be specified in the Points Based system guidance."
16. So far as material, the UKBA website on 19th July included the following information under the heading:

"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].

17. This remained the position until the 15th October when, in response to a query as to what the limit actually was, UKBA amended its website to include the following information in paragraph 2 above:

"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."

(underlining added).

18. In respect of Tier 2, an Addendum was added to the PBS Guidance as from the 19th July 2010 (the Addendum). So far as material the Addendum said this:

"Introduction

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.

Existing 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".

19. That part of the Addendum which refers to the interim limit has remained unchanged since the 19th July. In November 2010 the conditions which must be satisfied by a sponsor seeking "Exceptional Consideration" were amended. I will refer to exceptional consideration in due course. The Addendum referred to two letters to sponsors, the first a general letter dated 1st July 2010 to all sponsors, the second a detailed letter to each individual sponsor setting out that particular sponsor's allocation.
20. So far as the material, the first of those letters said this to all sponsors:

"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 ..."

21. In his witness statement Mr Bartlett explained the methodology that had been employed by UKBA in setting the allocations of COS:

"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."

22. Earlier in his witness statement Mr Bartlett had explained that the 5% reduction of applicants in Tiers 1 and 2, referred to in the Addendum would be achieved by holding the number of Tier 1 applicants at the previous year's figure and by reducing the number of Tier 2 applicants by 6.5%. Over the relevant period - 19th July to 31st March in 2009 - some 20,000 COS had been used and a 6.5% reduction resulted in the overall limit of 18,700.

The Grounds of Challenge

23. The claimants challenge the lawfulness of the interim limits for Tier 1 and Tier 2 on three grounds.

(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 [2010] EWCA Civil 719, [2010] 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

24. The starting point is the Immigration Act 1971 (the 1971 Act) sections 1(4) and 3(2) of which provide as follows:

"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)."

25. In Pankina the court was concerned with the requirements that had to be met by applicants for admission to the United Kingdom under Tier 1 of the PBS. In paragraphs 3 to 6 of his judgment Sedley LJ (with whom Rimer LJ and I agreed) explained the factual background as follows:

"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."

26. Counsel had agreed that there were two questions for the court. Only the first of those questions is relevant for present purposes. It was this:

"(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?"

27. Having noted that the first version of the Guidance containing the requirement that the £800 should have been held for at least 3 months was brought into being within the 40 day period referred to in section 3(2) of the 1971 Act, Sedley LJ said that it had been open to change at any time. He continued in paragraphs 29 and 30:

"... 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..."

28. Pankina has been applied in two decisions in the Administrative Court: R (English UK) v Secretary of State for the Home Department [2010] EWCA High Court 1726 (Admin), (English UK) and R (Alvi) v Secretary of State for the Home Department [2010] EWCA High Court 2066 (Admin), (Alvi). In English UK Foskett J was concerned with paragraph 120(a) of appendix A to HC 395, which at the relevant time was in these terms:

"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."

29. Foskett J said that he was no doubt that "the changed approach in the new guidance does operate to change materially the substantive criteria for entry for foreign students who wish to study English in the United Kingdom." (paragraph 64, emphasis original)

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."

30. In Alvi Lord Carlisle of Berriew QC, sitting as a Deputy High Court Judge, was concerned with the list of skilled occupations maintained by UKBA. The relevant notes to table 11 in Appendix A to the Rules provided that:

"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)."

31. On behalf of JCWI Mr Drabble QC, whose submissions were adopted by Mr Southey QC on behalf of the ECCA, submitted that the structure of both HC 59 and HC 96 was deliberately designed to enable the Secretary of State not merely to specify the initial limits on UKBA's website/in the PBS Guidance, but thereafter to alter those limits from time to time, at her discretion, thereby avoiding Parliamentary scrutiny of any such alterations. That was contrary to the decision in Pankina: see in particular paragraph 33 of the judgment of Sedley LJ (above)
32. Mr Drabble accepted that there was no absolute rule against the incorporation of existing extrinsic documents into the Rules by cross-reference: see paragraph 24 of Pankina, in which the decision of the Court of Appeal in R v Secretary of State for Social Services ex parte Camden London Borough Council [1987] 1 WLR 819 ("Camden") is cited. As mentioned above, the UKBA website and the Addendum to the PBS Guidance published on the 19th July 2010 both mentioned the introduction of the interim limits. If those extrinsic documents had published details of the limit imposed on Tier 1 applications and had specified the limits on the number of COS available to be assigned to sponsors and the number of COS to be assigned to specific sponsors, then (subject to the reservation that those documents were not in existence on the days on which HC 59 and HC 96 were laid before Parliament when the 40-day period within which Parliament could express its disapproval of the changes by way of negative resolution began to run) the incorporation of those limits by reference into the Rules would have been lawful, in accordance with the Camden decision. However, Mr Drabble submitted that even if HC 59 and HC 96 could be construed as referring only to the interim limits as they were published or specified in "existing" extrinsic material (the UKBA website and PBS Guidance as of the 19th July 2010), and not as conferring a power on the Secretary of State to alter those limits at will thereafter, there was still no compliance with Camden, because neither the UKBA website nor the annex to the PBS Guidance on 19th July 2010 had published/specified interim limits.
33. On behalf of the defendant Mr Swift QC submitted that both HC 59 and HC 96 plainly did envisage a "rolling process" under which the Secretary of State had power to alter both the "relevant grant allocation period" and the "grant allocation" for the purposes of Tier 1 and the limits on the number of COS to be available to be assigned, and on the number to be assigned to any specific sponsor for the purposes of Tier 2 at her absolute discretion. The Secretary of State would be answerable to Parliament for the exercise of her discretion, and her discretion would have to be exercised in a manner that was not Wednesbury irrational. In his submission those were the only two constraints on the power conferred by HC 59 and HC 96 on the Secretary of State to alter, either upwards or downwards, the limits for the purposes of Tiers 1 and 2.
34. Mr Swift acknowledged that this court was bound by Pankina but he submitted that that authority did not require that all changes in the Secretary of State's practice in the implementation of immigration control had to be laid before Parliament. Changes which were material had to be laid, those which were not material did not. There was a spectrum: at one end there were changes to what Foskett J had described in English UK as "a substantive criteria for eligibility for admission or leave to remain." (see paragraph 59), at the other there would be changes of the kind considered by Lord Carlisle QC in Alvi, changes which did not, in Lord Carlisle's view "involve changing in a material and substantive way the effect of the Rules..."(see paragraph 31). Deciding where a particular change fell within that spectrum involved a process of evaluation. There was no absolute bar on incorporation by reference of extrinsic guidance which could subsequently be changed by the Secretary of State such as, for example, UKBA's list of skilled occupations.
35. Mr Swift submitted that the only material or substantive changes to the Rules in the present case were two-fold (a) the in principle decision that the Secretary of State would be entitled to impose a limit on both Tier 1 and to Tier 2, and (b), the decision as to the means by which she would communicate those limits; on the UKBA website and in the PBS Guidance. The quantum of the limits, and the possibility of subsequent changes to them by the Secretary of State were not, in his submission "material or substantive" changes to the Rules. He acknowledged that, on his interpretation of the effect of HC 59 and HC 96 the Secretary of State was free (subject to political pressures and Wednesbury rationality) to alter the limits up or down to any extent she chose at any time she chose. The only limit upon the extent of the Secretary of State's discretion that was acknowledged by Mr Swift was that she could not remove the limits in their entirety, nor could she impose a limit of zero, thereby removing, effectively, the possibility of any admissions under Tier 1 and/or Tier 2, because such alterations would be contrary to the Rules, since the Rules provided for the existence of Tiers 1 and 2 and a limit or limits of some sort.
36. Mr Swift fairly conceded that if the court did not accept these submissions, and the consequence was that the Secretary of State had power to impose only those limits which were published or specified in the UKBA website or the PBS Guidance which was in existence at the time when the limits came into force on 19th July 2010, then no limits had been published for Tier 1. He submitted that the Addendum to the PBS Guidance published on 19th July 2010 had sufficiently specified both the number of COS available to be allocated to Tier 2 sponsors and, by cross-referring to the two letters which were to be sent to individual sponsors, the limits on the number of COS assigned to specific sponsors. He further submitted that it would have been wholly impracticable for the Secretary of State to specify in either the Rules themselves or in the Guidance the limit on the number of COS that had been assigned to each one of the 15,970 Tier 2 sponsors.

Pankina: Conclusions

37. I accept Mr Swift's submission that the defendant's intention in laying HC 59 and HC 96 before Parliament was to change the Rules so as to give her the power, not merely to determine the limits for Tier 1 and Tier 2 and incorporate those limits into the Rules by cross-reference to the UKBA website and PBS Guidance in existence at the time, but also to be able thereafter to alter them at will by making such alterations to the website and/or the Guidance as she saw fit.
38. I also accept Mr Drabble's submission, that that is precisely what Pankina says that the Secretary of State may not do. In Pankina the court considered the question whether the Rules could lawfully incorporate provisions set out in another document which had not been laid before Parliament and was able to be changed after the rule had been laid before Parliament (see paragraph 23). The answer to that question was "No" (see paragraph 33). Since the law requires rules which have the character and force of law to be certain, it does not permit the incorporation by cross reference of material which, even if it is ascertainable when the changes to the rules are laid before Parliament, "may be changed without fresh [Parliamentary] scrutiny". It does not do so because "a discrete element of the rules is placed beyond Parliament's scrutiny and left to the unfettered judgment of the rule maker" (see paragraph 29).
39. We are bound by Pankina, but, perhaps unsurprisingly, I would follow Pankina even if we were not so bound. The Secretary of State has to administer the 1971 Act. The Act recognises that the Secretary of State will be laying down rules as to the practices that she will follow in administering the Act, and requires those rules to include provision for certain matters (see section 1(4)). The Act also requires the Secretary of State to lay before Parliament any changes in the rules as to the practice to be followed (see section 3(2)). The purpose of laying the changes before Parliament is to give Parliament an opportunity within a period of 40 days, of expressing its disapproval of the changes.
40. It would frustrate that statutory purpose if the Secretary of State was able to lay before Parliament a change in the rules, which said in effect, that the practice to be followed will be set out in guidance, or be published on a website, which the Secretary of State would be free to change from time to time at her discretion. Far from giving effect to the statutory purpose, such a rule would be a deliberate evasion of the statutory purpose: an attempt to place the exercise of ministerial discretion beyond the bounds of Parliamentary scrutiny as required by the 1971 Act.
41. Mr Swift submitted that in exercising her discretion the Secretary of State would be answerable to Parliament. Of course, Ministers are answerable to Parliament as a matter of generality, but Parliament did not consider that this general political accountability was sufficient in the context of proposed changes to the Immigration Rules. It required in addition the adoption of a particular procedure which may not lawfully be sidestepped in the manner attempted by the defendant in the present case.
42. I accept that the Secretary of State made no secret of her intentions (see, for example, the Merits Committee report) but there can be no doubt that she was attempting to sidestep the provisions for Parliamentary scrutiny set out in section 3(2) of the 1971 Act and her attempt was, for that reason, unlawful.
43. I readily accept that there is a spectrum and that in enacting section 3(2) Parliament did not intend that every alteration to the Secretary of State's practice, however minor should be subject to the scrutiny of Parliament. It is unnecessary to consider the precise point in the spectrum at which Parliamentary scrutiny is not required because the quantification of the limits on the number of applicants who may be admitted under Tier 1 and Tier 2 is, on any basis, at the very top end of the spectrum. Alterations to the limits of those who may be permitted to enter under Tiers 1 and 2, whether the limits are 6, 60, 600 or 6,000 per month or per year are precisely the kinds of substantive changes that should be laid before Parliament. They are most certainly not to be equated with UKBA's list of skilled occupations which are very much at the other end of the spectrum.
44. All the parties were agreed that if it was possible to interpret HC 59 and HC 96 in such a manner as to render the changes to the Rules lawful rather than unlawful, then the court should adopt such an interpretation. If the changes had said expressly that the Secretary of State would publish or specify the limits "from time to time" on the UKBA website and/or in the PBS Guidance, it would not have been possible to interpret them so as to be Pankina compliant. I realise that the changes are expressed in the future tense "will be published" and "will be specified", but it is nevertheless possible to construe them as referring (and referring only) to the limits published or specified in the UKBA website and the Addendum to the PBS Guidance which were published on 19th July 2010 when the changes came into effect.
45. Even if the changes effected by HC 59 are so construed it is clear, as Mr Swift fairly conceded, that while the UKBA website published on 19th July 2010 did say that an interim limit had been introduced, it did not say what that limit was. That omission was not remedied until the 15th October 2010 (see paras 16 and 17 above).
46. The position in respect of Tier 2 is no better. Two limits were to be specified in the Guidance: the limit on the number of COS available to be assigned to sponsors (the overall limit), and the limit on the number of COS assigned to any specific sponsor. The Addendum referred to the introduction of an interim limit for Tiers 1 and 2, but merely to state that: "The aim of this limit is to achieve an overall reduction of 5% in the number of applicants in these categories" is not, by any stretch of the imagination to specify what the overall limit is. Even if the Addendum had stated the number of applicants in Tiers 1 and 2, so that the 5% overall reduction across both tiers could have been calculated as a matter of arithmetic, the overall limit for Tier 2 would not have been specified, and stating an "aim" is not specifying a limit (see para 18 above).
47. I readily accept Mr Swift's submission that it would be wholly unrealistic to expect that the number of COS assigned to each individual sponsor should have been specified in either the Rules or the Addendum. Adopting Mr Swift's "evaluation" or "spectrum of changes" approach, the overall limit is clearly at the upper end of the spectrum; both the overall limit it, and any changes to it are a critically important part of the Rules. The precise number of COS assigned to each individual Tier 2 sponsor is at the other end of the spectrum, and it was both lawful and reasonable to impart that information by the letters referred to in the Addendum. However, it is clear from Mr Bartlett's evidence (see paras 21 and 22 above) that limits were placed by UKBA on the number of COS assigned to specific sponsors, and the second letter merely told the individual sponsors what was the outcome of UKBA's application of those pre-established limits in their particular case. The limit on those sponsors who had used zero COS in 2009 was zero; sponsors who had used one COS had a limit of one, etcetera. The Addendum did not specify those limits which were being applied by UKBA in order to determine the allocations to individual sponsors. The Addendum said that the interim limit had been calculated by assessing COS usage for the equivalent period, 19th July 2009 to 31st March 2010, and it also said that an unspecified reduction had been applied to each sponsor who had used two or more COS during this period. What it did not do was to specify the limits which were being applied to individual sponsors.
48. It follows, in my judgment, that no interim limits were lawfully published or specified by the Secretary of State for either Tier 1 or Tier 2 in accordance with HC 59 or HC 96, and that there is not, and has never been a limit on the number of applicants who may be admitted under either Tier 1 or the number of COS that may be issued to Tier 2 sponsors.
49. For the sake of completeness I should mention two matters in connection with the Pankina ground. Mr Swift referred in his submission, as did Mr Bartlett in his witness statement, to the fact that the Secretary of State had said in her announcement in Parliament on 28th June 2010 that the Tier 2 route would be reduced by 1300 migrants, and the Merits Committee had referred to the Impact Assessment which had said that the number of visa approvals for Tier 1 would be set at 5,400. In fact, the latter figure was erroneous, the true figure which should have been given to the Merits Committee was 5100. But that further error is beside the point, since I do agree with one aspect of Mr Swift's submissions; that the means by which the interim limits fixed by the Secretary of State would be published or communicated was a material or substantive change (para 35 above). If the rules are to be certain (see paragraph 33 of Pankina), and if material in extrinsic documents is to be incorporated by way of cross reference, it is imperative that that material is clearly identified. It is essential that those who are administering, or who are subject to, the rules know precisely what they are and where they are to be found. If the changes to the rules say that material in document X is to be incorporated into the rules, then that material must be contained in document X, and the fact that it can be found somewhere else in documents Y or Z is beside the point.
50. The second matter concerns the availability of the extrinsic material for the 40-day period. If the UKBA website had contained the interim limit for Tier 1 and if the Addendum had contained interim limits in respect of Tier 2, then I would have wished to consider further whether publications/specification of that information on the 19th July, well after HC 59 was laid on 28th June, and four days after HC 96 was laid on 19th July was sufficient, bearing in mind the underlying purpose of section 3(2): to give Parliament a period of 40 days from the laying of the changes in which to express its disapproval of them if any.
51. It is unnecessary to reach a conclusion on this issue, but it seems to me that if there is material which is to be incorporated into the Rules, that material should, like the changes to the Rules themselves, be available to Parliament for its scrutiny for the full 40-day period: see, for example, the reliance by the majority of the Court of Appeal (Maurice Kay LJ and Rimer LJ) in R v On the application of Bapio v Secretary of State for the Home Department [2007] EWCA Civ 1139, on what it described as the "the well worn, albeit often criticised" negative resolution procedure as a reason for not superimposing on the statutory scheme a duty to consult (paragraphs 58 and 68).

The consultation and rationality grounds

52. Having concluded that there are, and have been since the 19th July 2010, no limits on either Tier 1 or Tier 2, it is unnecessary to consider Mr Southey's Consultation and Rationality challenges. Had the limits on Tier 2 been lawfully specified I would have rejected these challenges. It was not suggested that the duty to consult before the imposition of the interim limits arose from any promise or assurance by the Secretary of State. While there has been some consultation in the past, there is nothing in the defendant's past practice which could possibly have given rise to any expectation that there would be consultation prior to the imposition of a limit for an interim period. It is important to bear in mind that the defendant has engaged in a consultation exercise in respect of the imposition of permanent limits. Mr Southey accepted that if all the defendant had done was to impose an interim limit so as to maintain the status quo for the relatively short interim period until 31st March 2011, then there could have been no possible basis for a submission that there was a duty to consult.
53. In R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755 Laws LJ envisaged that there might be exceptional circumstances where there was a duty to consult when:

"...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."

54. Assuming in ECCA's favour, contrary to the decision of the Court of Appeal in Bapio, that a duty to consult can be superimposed on the negative resolution procedure, in my judgment the Bhatt threshold was nowhere near crossed on the facts of this case. Mr Southey fairly conceded that, since in this case the reduction in the number of available COS was only 6.5% overall, there would have been no need for consultation if the arrangements for "exceptional consideration" had been sufficiently flexible. In my judgment, since the defendant was imposing a relatively modest reduction in percentage terms overall, as an interim measure for a relatively short period, and was making some arrangements to deal with exceptional circumstances during that interim period, there was no obligation to consult prior to imposing interim limits on Tier 2.
55. It is unnecessary to decide whether there is any justification in ECCA's criticisms of the manner in which the arrangements for exceptional circumstances have been operating either as they were originally operating or as they have been operating since November. Even taking ECCA's case at its highest, those criticisms do not persuade me that the arrangements made for exceptional circumstances were so defective that they could sensibly be described as irrational.

Conclusion

56. For my part I would therefore allow both applications on ground 1, but I would dismiss grounds 2 and 3 of ECCA's application.
57. MR JUSTICE BURTON: Mr Drabble QC made clear what was not entirely clear from the body of Sedley LJ's judgment in Pankina, by producing counsel's skeleton argument in that case, namely that the Rule in question in Pankina was very similar indeed to the two amended Rules in issue in this case. Paragraph 1A of the appendix C of the then Rules in question of Pankina included, after specifying £800 by cross reference, the following words "and must also have had those funds for a period of time set out in the guidance specifying the specified documents for that purpose." That makes it the more manifest that the decision by the Court of Appeal in Pankina is binding on this court on the main issue raised by the defendant, namely her asserted entitlement by reference to such amended rules to make a change to the limits, from time to time, by the republication on the UKBA website or in the PBS Guidance respectively.
58. In those circumstances I, for my part, would not express any view on that issue, save to agree with my Lord that the defendant must, on the present state of the law, fail. Save in that regard I agree entirely with what has fallen from my Lord.
59. LORD JUSTICE SULLIVAN: Have the parties sorted out anything by way of what should be done about matters such as formal declaration, costs etcetera?
60. MR DRABBLE: My Lord, we have not agreed the wording of a declaration. I have written out a wording of a declaration but on reflection -- I can give it to your Lordships immediately and possibly refine it after court, but....
61. LORD JUSTICE SULLIVAN: I think that would be helpful.
62. MR DRABBLE: Shall I read it.
63. LORD JUSTICE SULLIVAN: Then everybody can criticise it, I mean that is the disadvantage of putting forward your draft, but carry on.
64. MR DRABBLE: It would read:

"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.

65. LORD JUSTICE SULLIVAN: If you take a deep breath before you start reading it out, you can just about get to the end. Mr Southey does that meet your, or do you reckon you have a better version?
66. MR SOUTHEY: I certainly do not think I have a better version.
67. LORD JUSTICE SULLIVAN: That meets the bill for you, does it?
68. MR SOUTHEY: I think so, yes.
69. LORD JUSTICE SULLIVAN: Have you got a better version that you would like to put forward Mr Swift?
70. MR SWIFT: I think--
71. MR JUSTICE BURTON: Insert a couple of "nots" I am sure.
72. MR SWIFT: Before I come to my next submission. But I think what I would like to do, if I had the opportunity, is to take a pre pencil to what Mr Drabble has just read because it seems to me to be unduly cumbersome, particularly given the rather elegant way in which the judgment has been expressed.
73. LORD JUSTICE SULLIVAN: I do not know that flattery is going to get you very far. As it were, if you know a better hole, then go to it and there is not better hole at the moment and so absent any serious criticism but I think my Lord and I feel it fairly reflects -- it may be, one may say whether it is elegant or not, it is certainly reflects what we have decided.
74. MR SWIFT: My Lord, I cannot disagree with that. I am simply suggesting -- Mr Drabble I heard when he read it to you, I have not seen or heard it before. I am simply suggesting that it would be useful and perhaps convenient for the court, if I had an opportunity simply to be Mr Drabble's subeditor rather than somebody who plays a trump card on what he is saying, simply so that the declaration which after all is a declaration of the court is in a form that perhaps does not seem like it is strangling the judgment.
(The Bench Conferred)
75. LORD JUSTICE SULLIVAN: I think our joint view, Mr Swift, is that if you, Mr Drabble and Mr Southey are able to agree -- I do underline "agree" -- an improved version, which is that to effect then we are perfectly happy to incorporate that in our order. Unless there is agreement, then, to be blunt, and not disrespectful to Mr Drabble, for want of anything better that will be incorporated in our order, a declaration in those terms, declarations, I am sorry, in those terms.
76. The Associate will want to draw up an order. When will you be able to give him a copy?
77. MR DRABBLE: As to the declaration it will take me quarter of an hour to type it up when I get back to chambers and I will put it on an email loop.
78. LORD JUSTICE SULLIVAN: Can you do that by close of play today. I think that would be very useful.
79. MR DRABBLE: I think we have your Lordship's clerk, so your Lordship... I do not know whether you want to be on the first loop?
(The Bench Conferred)
80. LORD JUSTICE SULLIVAN: Mr Drabble, since you have read out your version, unless there is an improved agreed version -- if there, we will agree it -- it can be sent to the Associate by close of play today, so that he can simply get on and draft the order. It does not need to come back to us. We have said what we want declared. If you can do it better, jolly good.
81. MR DRABBLE: Mr Tagharvi is getting out his laptop.
82. LORD JUSTICE SULLIVAN: Are there any other applications then?
83. MR DRABBLE: I have an application for costs?
84. MR SOUTHEY: My Lord, I also have an application for costs. In my case I have had some discussions with my learned friend, Mr Swift. I understand there is a disagreement between us in that we are asking for our full costs, I think Mr Swift will be saying that we should get a proportion of our costs to reflect the fact that we were unsuccessful on two grounds.
85. LORD JUSTICE SULLIVAN: Shall we hear what Mr Swift says.
86. MR SWIFT: Thank you my Lord.
87. My Lord costs is one point that I wanted to mention. Another point, in due course, is the question of permission to appeal.
88. LORD JUSTICE SULLIVAN: Let us do it in turns. Sort out costs. We have done the declaration, now costs. Mr Drabble's costs?
89. MR SWIFT: No opposition to Mr Drabble's application for costs.
90. LORD JUSTICE SULLIVAN: So Associate, the defendant to pay JCWI's costs, those costs to be subject to a detailed assessment if not agreed.
91. MR SWIFT: In relation to ECCA's costs, two submissions in the alternative. The first is that there should be no further order as between the Secretary of State and ECCA. The reasons for that are as follows. Firstly, as a matter of principle the Secretary of State should not be subject to orders for costs in relation to the same issue. Both claims raise the Pankina issue. The JCWI claim which raised the Pankina issue both in relation to Tier 1 and Tier 2 was the first in time. There is no reason thereafter why ECCA is prevented obviously from bringing the same challenge, but in the same vain there is no reason why it does that. It should be able to recover costs on that point.
92. MR JUSTICE BURTON: In so far as they added anything, they lost.
93. MR SWIFT: That is the second point my Lord. In so far as they added anything the other two grounds, they would not have succeeded on those grounds. So my Lord, for that reason we say first submission is that there should be no order as between the Secretary of State and ECCA.
94. The alternative submission is that if there is to be any order at all it should be in respect of a very small proportion of ECCA's costs. Now the reasons for that are as follows. Firstly, the reason I have already given, they did not need -- there should be no two orders in the same issue in any event. Secondly, they lost on the two other points. Thirdly, those two other points were the matters which generated the costs in terms of the evidence that you have seen. Fourthly, at the very least they should not get their costs of the late evidence, that is the 200 odd pages served last Friday. Fifthly, this is, as it were, pushing the point further, the Secretary of State has effectively or has won on those two other grounds. The bulk of the Secretary of State's costs were incurred in response to those two other grounds including the entirety of Mr Bartlett's evidence. The Secretary of State, in response to the Expro claim that Mr Drabble mentioned in opening, the claim that was started and then withdrawn, had already put in a shorter witness statement that dealt with, as it were, the evidence necessary for the Pankina point.
95. LORD JUSTICE SULLIVAN: I do not know I have seen that. It seems to me a fair amount of Mr Bartlett's evidence actually was necessary to be looked at for the purpose of considering Mr Drabble's.
96. MR JUSTICE BURTON: Did the one and two and all that, was it Mrs MacKay's statement, did that appear in the original statement? I thought it was Mrs Mackay, who ever it was who did the statement in opposition to the other claim which...
97. MR SWIFT: The other statement of Secretary of State, Mr Hughes statement which is in Mr Drabble's bundle.
98. MR JUSTICE BURTON: Mr Hughes, did he deal with the one for two and 15% off and that kind of thing? Otherwise, I agree with my Lord that it is not right to say that Bartlett's evidence was not of importance.
99. MR SWIFT: Yes, he did deal with that at paragraph 42, Mr Drabble's bundle, page 111.
100. MR JUSTICE BURTON: So that part of the Bartlett evidence which we looked at for the purpose of deciding the Pankina point is already in and then had to do redo Bartlett and double or quadruple the length because of the consultation and exeptionality.
101. MR SWIFT: What happened was the Expro claim had been withdrawn. JCWI had said in their pleaded case that they would maintain the cudgels if Expro fell away, which they did, in so far as they could, but the ECCA claim, because it went much wider, the view was taken that it would be better to have a single statement for the court that actually covered everything, rather than having Hughes plus Bartlett. So the last point I make in relation to costs reduction is that the Secretary of State has won on these points, has spent a lot of money on these points. That is also something which should be reflected in the reduction of the proportion of costs that the Secretary of State should pay to ECCA.
102. So, my Lords have my primary submission that I should not pay costs to ECCA at all. If you are against me on that, I say the circumstances are such that the Secretary of State should pay no more than 10 per cent of ECCA's costs.
103. MR JUSTICE BURTON: You are not asking for your costs to be paid?
104. MR SWIFT: The reason I am not asking for my costs to be paid is simply because either no order is a fair outcome in the circumstances, or a very dramatic reduction of ECCA's costs. I suggest that is a reasonable and pragmatic solution.
105. LORD JUSTICE SULLIVAN: What do you want to say Mr Southey?
106. MR SOUTHEY: My Lord, certainly in relation to the first point about separate interest, we would certainly submit that ECCA had a very obvious and distinct interest in challenging the Tier 2 claim.
107. MR JUSTICE BURTON: You could come along with a watching brief and have supported Mr Drabble in making all the points you wanted him to make.
108. MR SOUTHEY: What I am going to say is that our grounds focussed on the Pankina point. Now, as a matter of convenience, myself and Mr Drabble agreed that we would avoid duplication. That was a matter of convenience that we took.
109. MR JUSTICE BURTON: It was not duplication in relation consultation exeptionality which Mr Drabble was not running. You were here to add those two points.
110. MR SOUTHEY: The grounds in the skeleton argument started with the Pankina point. In terms of oral submissions I still made some oral submissions regarding Pankina, not least drawing attention to the fact that the formula had not actually been incorporated in ECCA Guidance. That was the point that I brought up after lunch on the first day.
111. We would say the--
112. LORD JUSTICE SULLIVAN: This is the second matter that has to be specified for PBS, not just the overall limit.
113. MR SOUTHEY: Yes.
114. LORD JUSTICE SULLIVAN: That was your point.
115. MR SOUTHEY: Yes. All along we had been making the point that the Pankina point did not merely apply to the overall limit, one needed to be clear about how the limit was going to be distributed.
116. LORD JUSTICE SULLIVAN: The essential point is I suppose you certainly supplement to an extent Mr Drabble's submissions on the Pankina point and very helpfully, in that that might entitle you to a modest amount of costs but on the other hand, your position would be very strong had you then sat down but you did not. You made points 2 and 3.
117. MR SOUTHEY: I was going to go on in relation. Firstly, in terms of the saving, we would say actually the saving of the Secretary of State is not great, in the sense that the evidence from Mr Bartlett was not merely -- had the Secretary of State wanted to, the Secretary of State could have submitted a witness statement saying: I am relying on Mr Hughes' witness statement, which was not in fact served in our proceedings but could have said that. Here is a short witness statement in addition. He did not say that, it was intended to be a comprehensive witness statement. That was the Secretary of State's decision but the number of paragraphs that actually dealt with the issues of consultation and the issues of flexibility were relatively limited.
118. MR JUSTICE BURTON: You do not need any of this evidence. The evidence on the Pankina point could have been dealt with really in the slim bundle of--
119. MR SOUTHEY: Except -- I was going to come on to this -- the other point I was going to make in relation to the evidence is that my Lords' judgment makes it clear that there is a spectrum, when looking at the significance of matters that effectively are prescribing immigration control and when deciding whether or not there needs to be Parliamentary scrutiny, one needs to look where these matters are in the spectrum. To that extent the evidence from a sector that is directly affected is relevant to that issue. It demonstrates how significant this change was in practice. That, we would say, is highly relevant. That is one of the reasons why it was important from the claimant's point of view that they were heard.
120. So in terms of the evidence of Mr Bartlett, we would say the evidence addressing these two points was actually a relatively short proportion. In terms of the hearing dates, the hearing dates would actually would still have gone beyond into a second day, undoubtedly, if one totally eliminates my submissions from the length of the hearing, it would still have taken more than a day. It is unlikely, it did not add hugely, we would say, to the hearing date. Most importantly, in oral submissions at least -- I hope I made it clear and I think I did it -- that we were essentially putting these points in the alternative. The point I made at the end of the hearing relying on Bapio, that even the Secretary of State essentially put this matter before Parliament or the Secretary of State consulted because the Parliamentary route was not followed and where effectively and a similar points about flexibility because we would have accepted had this properly been made an Immigration Rule then it would not require the same degree of flexibility. That is the whole point of the Pankina point. Really what we were saying was is either this has to be a properly made Immigration Rule, and it is not or, you need to deal with this as policy and then there are complaints about flexibility etcetera arise. So put in the alternative, but primary point essentially succeeded, even if, ultimately, most of the oral submissions in relation to that were made by Mr Drabble.
121. Finally, what I would say is that to some extent the points we failed on, we would say were supportive of the Pankina point, because they demonstrated, again, if there is limited flexibility, that is a matter that demonstrates the need for Parliamentary control. The greater flexibility, the greater this was just a matter where the Secretary of State was given a discretion to individual applications, the less need there would be for Parliamentary control. So to some extent, one cannot separate out the arguments and that certainly was from the very start of my oral submissions the position I was taking and so we would say there was value in the court having those arguments because they demonstrated an important Parliamentary control.
122. LORD JUSTICE SULLIVAN: Is there anything you want to add on that Mr Swift. If you have not more to say, everything has been said that can be said, we will probably go outside and decide what we want to do about costs. Do not worry, we are not going away, so you will be able ask for permission to appeal.
123. MR SWIFT: My Lord, I am content for you simply to assume that I disagree with what Mr Southey has just said.
124. LORD JUSTICE SULLIVAN: I think we have both got that far.
(Short Adjournment)
125. LORD JUSTICE SULLIVAN: Mr Southey, we think that the fair order in this case is no order as to costs. While, of course, you did undoubtedly win on ground 1 and added value to that, it seems to us that that is at least outweighed by the failure on grounds 1 and 2, which undoubtedly did cause additional expense to be incurred -- grounds 2 and 3, I am sorry. So, the order in your case is no order as to costs.
126. Right.
127. MR SWIFT: My Lord, two parts to my application to appeal, at least potentially. The first is an application under section 12 of the Administration of Justice Act 1969, this is for the certificate for a leap frog appeal. My Lord, do you by any chance have Volume II of the White Book on the desk?
128. LORD JUSTICE SULLIVAN: No. I have Volume II. Volume II is what you want?
129. MR SWIFT: Yes.
130. LORD JUSTICE SULLIVAN: This is a public service but we do have the 2010 volume.
131. MR JUSTICE BURTON: Which is unusual. We share one, I have Volume 1.
132. MR SWIFT: It is page 2504 of the 1969 Act.
133. MR JUSTICE BURTON: This is on the basis that Pankina, as we found, binds us and so you feel the right place to put this right, from your point of view, is in the Supreme Court.
134. MR SWIFT: Indeed.
135. MR JUSTICE BURTON: It is a waste of time to go to the Court of Appeal who would simply found that Pankina (inaudible).
136. MR SWIFT: Clearly in the Court of Appeal I could seek in some way to distinguish these circumstances from the circumstances before the Court in Pankina but given the way in which that judgment is being explained in your judgment, I think that would be a hopeless task and quite frankly a waste of Court of Appeal time.
137. LORD JUSTICE SULLIVAN: They might have completely misunderstood what I have decided but there you are. Persuade them that. Well, it is nice of you to say so.
138. MR SWIFT: My Lord, section 12 deals with the question of the grant of the certificate. Obviously at this stage I am simply asking for a certificate so that I may apply to the Supreme Court for permission to appeal. Firstly, the relevant conditions need to be fulfilled. Secondly, there is a sufficient case for appeal to the Supreme Court under this Act, has been made out to justify an application for leave to bring such an appeal. Thirdly, all parties to the proceedings consent to a grant of a certificate under this section.
139. My Lord, subsection (3), the relevant conditions are stated. It says "relevant conditions in relation to a decision of the judge in any proceedings are that a point of law of general public importance is involved in that decision and that that point of law either (a) relates wholly or mainly to the construction of an enactment or statutory instrument and has been fully argued in the proceedings and fully considered in the judgment of the judge and the proceedings, or is one in respect of which the judge is bound by a decision of the Court of Appeal or of the Supreme Court in previous proceedings and has fully considered the judgments given by the Court of Appeal of Supreme Court in those previous proceedings."
140. My Lord the application, in subsection (4) needs to be made within 14 days of the date on which the judgment is given, hence my application this afternoon. My Lord, you should also be aware of section 15(3) on the page 2508: "Where by virtue of any enactment apart from the provisions of this Part of this Act no appeal would lie to the Court of Appeal from the decision of the judge except with the leave of the judge or Court of Appeal. No certificate shall be granted under section 12 in respect of that decision unless it appears to the judge that apart from the provisions of this Part of this Act it would be a proper case for granting such leave." You need to be satisfied, firstly, that if I were asking for permission to go to the Court of Appeal, you would grant that permission. Then in addition the provisions of section 12 need to be considered.
141. MR JUSTICE BURTON: In relation to section 12, on the assumption that you have established the conditions, sufficient case for an appeal, we would require to know whether the other parties consented. If they do not that puts a stopper on it. Is that right?
142. MR SWIFT: That is right. Obviously the consent is only to the certificate, that they would not, by consenting to the certificate, be consenting to the further application I need to make to the Supreme Court for permission to appeal.
143. LORD JUSTICE SULLIVAN: I understand that. The certificate merely opens the door.
144. MR SWIFT: Indeed.
145. LORD JUSTICE SULLIVAN: I will just confer with my Lord a moment. It might assist the parties to know whether they....
(The Bench Conferred)
146. LORD JUSTICE SULLIVAN: Subject obviously to any submissions that Mr Drabble and Mr Southey may have, our provisional view is that we would be giving you permission to appeal to go to the court of appeal. Frankly whether or not you have a real prospect of success there is some other compelling given the importance of the point to the Secretary of State and indeed to the other parties. So I imagine, I suspect that the other parties would not have sought to dissuade us from that. The only question frankly whether you appeal to the Court of Appeal or whether you try to go to the Supreme Court. Obviously that gives you an addition burden because the Supreme Court may say: no thank you very much, we do not want to see you. That is the background. Mr Drabble?
147. MR DRABBLE: I am not in a position to indicate what our position is on consent otherwise. I do have one preliminary submission which is in my submission important, which is we need to identify with clarity what is the point of law. It cannot be simply is Pankina rightly decided because this case is an extreme case on its facts. There was no published limit allowed at all in anything resembling the 40 days on Tier 1 and is not now any published limit in relation to Tier 2. So the point of law has to be one which, if the Secretary of State is successful, overcomes those two difficulties. The only point of law I can think that overcomes those difficulties is Miss Giovannetti's extreme formulation.
148. MR JUSTICE BURTON: Can I put it another way? You are saying although it seems to be the plainest point of law in Pankina, but that it is academic in this case. Whether it is academic does that stop the House of Lords considering it. There are a number of recent authorities which say, even after people have been removed from the country, it is entirely academic, important points of law. Surely the points of law here, as to whether a decision in Pankina by which we concluded we are bound is right as to the fact that the Secretary of State cannot by any co-operation of a Guidance, allow himself to change the Rules from time to time. Clearly, however one formulates it, it is a very important point of law. You are absolutely right, it is plainly not determinative in this case because he has lost out on the validity of the Rule that we have just discussed.
149. LORD JUSTICE SULLIVAN: If he wins on Pankina he can say: might change on 15th of October, which means as from 15 October Tier 1. Not of course Tier 2, she would have to get her skates on and do something about Tier 2.
150. MR DRABBLE: I completely follow that. But that means that the application for permission to appeal to the Court of Appeal, if one just takes a step back to any court has to be on a basis there was a realistic... I was going to say realistic prospect, but I am aware of the two limbs.
151. MR JUSTICE BURTON: The Court of Appeal do not want to hear academic appeals.
152. MR DRABBLE: Any permission to appeal to wherever has to be on the basis that the Secretary of State can realistically defend a situation which it can make a rule which allows substantial changes from time to time. I wish to submit that is not realistic. My instructions are that if despite that, your Lordships are minded to grant permission to the Court of Appeal, we would prefer leap frog.
153. LORD JUSTICE SULLIVAN: You prefer leap frog?
154. MR DRABBLE: We would obviously oppose the grant of permission to the Supreme Court.
155. LORD JUSTICE SULLIVAN: We quite understand that. You certainly have a chance to do that on the facts.
156. MR JUSTICE BURTON: But you say that clearly there must be a point of law formulated.
157. MR DRABBLE: Yes, it is critical that a point of law is formulated and it has to be one which I still say has to overcomes the problem. There is no publication until the 15th.
158. LORD JUSTICE SULLIVAN: We understand your point. Shall we see what Mr Southey says.
159. MR SOUTHEY: I think we would adopt Mr Drabble's submissions, in that we would oppose a grant of permission but recognise, particularly given the concerns about costs that we have, as a relatively small charity, that if the appeal is going to be heard anywhere, it ought to go to the Supreme Court. But we would adopt the primary position, which is ultimately to a large extent this is an appeal which on its facts become academic. That is a relevant factor.
160. LORD JUSTICE SULLIVAN: Mr Swift, I think it seems to both my Lord and I that you have to formulate your point of law so that, as it were, we can be satisfied that it is the sort of point of law which does get the Secretary of State out of the thicket in which she finds herself. Any way, are you able to do that. As you know, I mean effectively it has to be done PDQ because we cease to be a Divisional Court as from 4.15. It has to be done now. You have your 12 days, have you not. Can we extend the 12 days?
161. MR SWIFT: Not by a route that I have identified so far. The requirement in the Act is to make the application within 14 days of the judgment.
162. MR JUSTICE BURTON: You have made it.
163. LORD JUSTICE SULLIVAN: So you can make it. You can make it and then when Burton J and I come from our Christmas holiday, we could decide. But I do not think it is terribly ideal in a way, in the sense you are going to do anything it is an interim you want to get on presumably reasonably quickly.
164. MR JUSTICE BURTON: I think you accept, do you not, your only way out of the hole is to pass a fresh resolution? So this is not going to help you out of the hole. This is an important question which relates to many others no doubt. The Secretary of State will want to know before Parliament.
165. MR SWIFT: The important question is the construction of section 3(2) and whether, as this court has concluded and the Pankina court concluded that that provision prevents the Secretary of State making the rule, that seeks to incorporate by a reference something that she will do in the future. Now, my Lord, that is an important point per se.
166. The second point is this. You have identified the existence of a spectrum and so that there will be some provisions which can, as it were, where the Guidance can be changed without the rule being relaid, but there will be others on the other end of the spectrum where one cannot do that. You have concluded, on the facts of this case, this is a clear case, the important end of the spectrum and so therefore no question arises.
167. Now, my Lord, if that analysis is correct, the question of where the dividing line on the spectrum is, or at least where the dividing range of the spectrum is very important for the Secretary of State, in order to have some degree of predictability as to, for example, which matters are on the unimportant end of the scale, so can be changed. For example, the address that one sends one's applications to, or the list of occupations or skilled occupation list and matters at the other end. Again, from the point of view of an appeal to the Supreme Court, the Secretary of State will be asking that court in any event.
168. MR JUSTICE BURTON: I think you can exaggerate that a little. The fact is the Rule is most unlikely, the Rule is most unlikely to say: you will address your application to an address that appears in the Guidance. You will not have that. It seems to me most things, if not all the things in the rule, which will say, they can appear in the Guidance, will be of the kind of importance of this kind, in this case.
169. MR SWIFT: Perhaps it is a bad example but I would suggest the general point is a good point in that predictability as to construction that this court has adopted section 3(2) is important because clearly, as you have recognised, it is a point that those who are applying the Rules and those who are making applications under the Rules have a high degree of assurance as to what is part of the Rules and what is not part of the Rules. So, my Lord, the basic point of law is the construction of section 3(2) of the 1971 Act, and in particular whether that section prohibits or not, incorporation by reference to or of documents that may be changed by the Secretary of State without laying a further statement before Parliament under section 3(2). No doubt I have expressed that in a strangulated way. I hope it gets the importance of the point across. My Lord, Mr Drabble says: that will not help me when it comes to Tier 2, given your finding as to the meaning and effect of the Addendum document. Well, my Lord, perhaps it will not. Perhaps that is a point of construction that the Supreme Court would not entertain in any event. But even if that were the case it would help on Tier 1 which is of itself important, but the more important point is the general application of section 3(2). That is really critical to the existence of operation Rules.
170. MR JUSTICE BURTON: This is an academic point which they need to hear. I think speaking for myself, you only need to persuade us that the House of Lords does hear academic points. If it was a complete knockout and they never hear academic points, that would be the end of it. They do decide that.
171. MR SWIFT: Also bear in mind in the 3 or 4 months since Pankina, there have been now three cases since, the issue case, and this case.
172. MR JUSTICE BURTON: The authorities which appear to misrepresent what Pankina says at first instance decision, as they realise the full force of what Pankina decided.
173. MR SWIFT: For that reason it is a matter of importance and we say that for that reason we ought to have the opportunity to ask the Supreme Court.
174. LORD JUSTICE SULLIVAN: The Supreme Court may give you a raspberry because they may say: it is all academic, on the facts it is hopeless.
(The Bench Conferred Again)
175. LORD JUSTICE SULLIVAN: Just to check. If the House of Lords says: no, thank you very much, that is end for you, is it not? You do not go back to the Court of Appeal. We cannot give you a certificate unless it appears to us that we would have granted leave to go to the Court of Appeal.
176. MR SWIFT: No my Lord, I have braces to go with my belt or the other way round.
177. LORD JUSTICE SULLIVAN: Tell us what they are.
178. MR SWIFT: My Lord, if the Supreme Court refuses the application for permission I am still in the position to go to the Court of Appeal. For example, the Supreme Court might say: regardless of what you have said, or in fact Pankina is not. So my Lord, I was going to make a further application, if my application for a certificate is successful. The further application is this. That you grant me permission to appeal to the Court of Appeal in any event and extend time for the service of the Notice of Appeal until, say, 21 days, after the determination by the Supreme Court of any application for Appeals to the Supreme Court. So that if my application to the Supreme Court succeeds, is made and succeeds, this part becomes academic. If it does not, I am still in a position to go before the Court of Appeal and do whatever I can in front of that court.
179. LORD JUSTICE SULLIVAN: You would say whatever view we might take of the prospects of success there are other compelling reasons.
180. MR SWIFT: Indeed.
181. LORD JUSTICE SULLIVAN: I think we have heard enough unless you have anything else.
182. MR DRABBLE: My Lord, can I indicate my position on that last submission? It is effectively an application for permission to appeal on the basis that Pankina remains in place -- that is the necessary hypothesis -- and I submit that Pankina does indeed bind both you and the Court of Appeal and there is no prospect of success and no point of general importance in seeking to find some narrow and yet unexplained basis of distinction between that position and Pankina.
183. MR JUSTICE BURTON: I quite follow, it is a little odd. We have to form the view that we would have given leave to the Court of Appeal before you continue to the House of Lords.
184. MR DRABBLE: -- binding judgment I think is another way section 12 words. I have not got section 12.
185. LORD JUSTICE SULLIVAN: Section 15: "...except the leave of the judge... no certificate granted, unless it appears to the judge apart from provisions of this Part of this Act it would be a proper case for granting such leave."
186. MR DRABBLE: Presumably you could grant leave -- I have done it -- on the basis that the Court of Appeal is going to continue to be bound, you are going to ask for your appeal to be dismissed.
187. MR JUSTICE BURTON: The Supreme Court, one never knows why (inaudible) might refuse it on the basis they prefer to be dealt in the first instance.
188. MR DRABBLE: I have made the submission.
189. LORD JUSTICE SULLIVAN: You just adopt.
190. MR SOUTHEY: There is nothing else I can add in relation to that.
191. LORD JUSTICE SULLIVAN: Then in response to this application, my Lord and I are agreed that the conditions for granting a certificate are met. We are satisfied that the conditions in section 12(1)(a) are fulfilled. In fact, firstly, the question of whether the Secretary of State may, under section 3(2), incorporate by reference extrinsic documents which she is free to change thereafter without Parliamentary scrutiny -- I may not put it very elegantly, but basically that is the point -- is undoubtedly an important point of law of general public importance, and in fact it satisfies both limbs, that is to say it does relate wholly or mainly to the construction of an enactment (section 3(2)) and also it is our judgment that it is a question in respect of which we are bound by the Court of Appeal in Pankina.
192. The other conditions we are satisfied a sufficient case for an appeal has been made out to justify the Secretary of State being able to make an application for leave to bring an appeal, an application to the Supreme Court. All the parties have indicated that the matter is to be appealed, they would prefer the matter to leap frog to the House of Lords if it is to be appealed. So consent is being given. The only other matter is we have had to be satisfied that we would have granted permission to appeal to the Court of Appeal. We would have done so, not on the basis that we think the Secretary of State has a real prospect success but simply there is another compelling reason by reason of the importance of the point of principle.
193. So far as the further application is made, we consider that permission to appeal to the Court of Appeal should be granted as well and we extend time until 21 days after the determination of the application for permission to appeal to the Supreme Court by the Supreme Court for the submission of the Secretary of State's Notice of Appeal.
194. Mr Swift, we have given general indication of the point that we do think is a point of public importance. You will formulate that, I am sure somewhat more felicitously but I think my Lord and I think like to see the point as felicitously formulated but provided it is in substance the point I have wrongly and elegantly described and that will be all right.
195. MR SWIFT: My Lord, just in terms of timing, you will want to incorporate that in your order, or alternatively your order could simply be to the effect that you grant a certificate and I hesitate to say this, it could cross refer to a document that identified the formulation of the point of law.
196. LORD JUSTICE SULLIVAN: Perish the thought, yes.
197. MR SWIFT: My Lord, given the time I wonder if it might be possible for your order simply to be that a section 12 certificate is made, with the cross reference to the further document which Miss Clement and I will seek to formulate and provide to you by email in the early part of next week if possible.
198. LORD JUSTICE SULLIVAN: Burton J is away today. After today I start my hols after Tuesday. So you are not going to get anything approved after then.
199. MR SWIFT: I appreciate that. Where I would go now, under the 1969 Act, would be obviously to make my application to the Supreme Court. I have a little time to do that, in that my application needs to be made within a month of the date on which the certificate is granted. So that will be a month from today's date.
200. MR JUSTICE BURTON: If you submit your point of law on the first day of next term, would that not be sufficient?
201. MR SWIFT: It would take me to the 16th January, so there would still be time for each of you to have a proper opportunity to consider.
202. LORD JUSTICE SULLIVAN: Absolutely. Do try to get some time to eat your Christmas dinner but when you finish that, sort out the point of law, send it and we will consider it on the first day or soon as possible thereafter of next term and you will have it finalise, so you can potter off to the Supreme Court before your month is up. Is that all right?
203. MR SWIFT: I am much obliged.
204. LORD JUSTICE SULLIVAN: I do not think too many people are going to be worrying their heads in the Supreme Court about precise wording over Christmas. I do not think it is going to cause -- I have not said that -- I do not think it is going to cause any real delays.
(The court conferred with the shorthand writer)
205. MR DRABBLE: Two matters. First of all, would your Lordship order an expedited transcript?
206. LORD JUSTICE SULLIVAN: Shorthand writers go on hols too.
207. MR DRABBLE: I fully understand that.
208. LORD JUSTICE SULLIVAN: I certainly do not intend to come back from driving my trains to check your transcript. I make that absolutely clear. I do not think judicial duties extend that far. (Pause)
209. Realistically we are going to get the transcript by the start of next term, with the Christmas holidays and so forth.
210. MR DRABBLE: I am not asking for anything faster than that.
211. LORD JUSTICE SULLIVAN: I thought you were asking for Tuesday or something like that. Right. All right.
212. We will not order formal expedition of the transcript but we are hoping to get it by the beginning of term and we will then be able to check it and correct it.
213. MR SWIFT: I do not think I can actually ask you to do more than that with any degree of conviction at all. Might I only mention that I have my month to make my application to the Supreme Court, unless the Supreme Court gives me further time. Obviously, for the application to the Supreme Court, it will be very helpful to have the approved judgment.
214. LORD JUSTICE SULLIVAN: I think what we can do is to say, we could ask -- if my Lord agrees -- the shorthand writer, I am going to order expedition, but not sort of super expedition so people lose their Christmas lunch, but order an expedited transcript. The unapproved transcript is to be given to you, to the parties before it goes to us, but it is on a strict understanding that that is simply, if you like, an aide memoir for you and the final approved judgment will be that which we approve, which we will do after we have checked it at the beginning of next term. So we reserve the right to make alterations to it -- there is that right. There is perfectly enough in it for you formulate your grounds to the Supreme Court and for the other parties to know exactly where they stand. Does my Lord agree?
215. MR JUSTICE BURTON: Yes.
216. LORD JUSTICE SULLIVAN: My Lord is content with that. On that strict understanding that we will correct all infelicities and alter history at the beginning of term. Is there anything more?
217. MR DRABBLE: The only matter is the declaration. We are perilously near the end of the afternoon, unless your Lordships disagree, what I propose to do is send the version which is now on our laptop and on the Secretary of State's laptop to the Associate.
218. LORD JUSTICE SULLIVAN: Yes. If you wanted until -- my Lord suggests lunchtime tomorrow on Monday, whatever it is to sort out an improved version, you are welcome. So do not feel obliged to send it by this afternoon. But shall we say by close of play on Monday. That gives a chance for people to think about it and tinker around with it, if people are agreed. All right. Otherwise the default position is the point what you have read out to us goes in. Any more? Right. Done.