UKSC 33
On appeal from:  EWCA Civ 681
R (on the application of Alvi) (Respondent) v Secretary of State for the Home Department (Appellant)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
18 July 2012
Heard on 24, 25 and 26 April 2012
Jonathan Swift QC
(Instructed by Treasury Solicitors)
(Instructed by Malik Law Chambers Solicitors )
|Intervener (Joint Council for the Welfare of Immigrants)
Richard Drabble QC
(Instructed by Lewis Silkin LLP)
"On 24 March 2009 you applied for leave to remain in the United Kingdom as a Tier 2 (General) Migrant under the Points Based System (PBS). An official has considered your application on behalf of the Secretary of State.
You have claimed 50 points under certificate of sponsorship, but your clients [sic] job title stated on the application form and Certificate of Sponsorship as Assistant Physiotherapist does not meet as a job role that is above NVQ or SVQ level 3. The codes of practice document at the time of the application stated that this job role is below N/SVQ level 3. You have not therefore been awarded any points under certificate of sponsorship.
Therefore you do not satisfy the requirements of the immigration rules for this category and it has been decided to refuse your application for leave to remain as a Tier 2 (General) Migrant under paragraph 245ZF(e) of the Immigration Rules."
(1) that he did not need to comply with paragraph 82(a)(i) as he had an existing work permit, so all he had to do was to satisfy the transitional provisions set out in paragraph 83 of the Appendix to which the list of skilled occupations does not apply; and
(2) that in any event the list of skilled occupations was not part of the Immigration Rules, as the document in which that list was set out had not been laid before Parliament under section 3(2) of the Immigration Act 1971.
The legislative framework
"(4) The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."
Section 3(1), as amended by section 39 of the British Nationality Act 1981 and paragraphs 43 and 44(1) of Schedule 14 to the Immigration and Asylum Act 1999, provides that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of or made under the Act, that he may be given leave to enter or remain for a limited or for an indefinite period and that if he is given leave to enter or to remain in the United Kingdom it may be given subject to conditions restricting his employment or occupation or requiring him to register with the police.
"(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).
If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid)."
It is common ground that the code of practice document referred to in the refusal letter of 9 February 2010, which stated that the appellant's job role was below N/SVQ level 3, had not been laid before Parliament under this subsection.
"The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum Act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules."
That case involved a change to the entitlement of persons who had medical qualifications to leave to remain as post-graduate doctors. Previously that entitlement was unrestricted. The issue was whether a statement of changes to the Immigration Rules which confined that entitlement to persons with medical qualifications from UK institutions applied to all cases in which leave had still to be granted, or only to those who had not yet applied. In para 7 Lord Hoffmann said the rules were not to be construed as creating rights which subsequent rules should not, in the absence of express language, be construed as removing:
"They are, as I have said, a statement by the Secretary of State as to how she will exercise powers of control over immigration. So the most natural reading is that (in the absence of any statement to the contrary) they will apply to decisions that she makes until such time as she promulgates different rules, after which she will decide according to the new rules."
The points-based system
"To qualify for leave to remain as a Tier 2 Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused."
Among the requirements listed in that paragraph are provisions which state that to obtain entry clearance or leave to remain a Tier 2 (General) Migrant needs to obtain a total of 70 points, which must include at least 50 points for "attributes", 10 points for English language skills and 10 points for maintenance. Paragraph 245ZF(e) provides that points for attributes are to be awarded under paragraphs 59-84 which HC 1113 inserted into Appendix A to the Immigration Rules.
"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, or
(ii) the applicant is a Senior Care Worker or an Established Entertainer, and
(b) (unless the applicant is an Established Entertainer) the salary that the Certificate of Sponsorship Checking Service entry records that the migrant will be paid is at or above the appropriate rate for the job as stated in the list of skilled occupations referred to in (a)(i)."
"The process you should follow to find out if you can sponsor a skilled migrant for your job under this tier is:
• Choose your sector
• Choose the Standard Occupational Classification (SOC) code closest to your job, using the information in the sector table
[Insert drop-down list or menu of all sector pages]
If you already know which SOC code is most appropriate, select the code of practice from the following list:
[Insert drop-down list of all SOC codes that have a code of practice]
Find out the skill level, appropriate rate of pay and how to meet the resident labour market test"
"How the codes have been developed
These codes of practice have been drawn up based on advice from industry experts and the Migration Advisory Committee. They are the official guidance for sponsors and caseworkers."
The Migration Advisory Committee is a non-statutory public body set up to provide advice to the government and sponsored by UKBA. The codes were divided into sections organised by industry. Section Q dealt with human health and social work activities. On 27 November 2008, when the Statement of Change (HC 1113) took effect, UKBA published a slightly revised version of Occupation Codes of Practice on its website. It contained some changes to the list of skilled occupations and made some other minor amendments to the previous version which had been published on 17 September 2008. In a preface to the list of occupations the following advice was given to sponsors:
"This page explains the codes of practice that you must use to check the skill level and appropriate rate for the job you want to employ the migrant for, in tiers 2 and 5 of the points-based system, and advice on where to advertise the job.
Before you can sponsor a skilled migrant, you need to check that the job you are sponsoring them to do meets the requirements of the skilled migrant tier:
• The job must be skilled at N/SVQ level 3 or above; and
• The job must be paid at the appropriate rate or above; and
• You must normally have carried out a resident labour market test for the job before sponsoring a skilled migrant.
This section contains codes of practice for every occupation. The codes of practice give information on skill levels and appropriate rates, and advice on where to advertise the job. This is so that you can check that the job meets these requirements. If the job does not meet these requirements you cannot issue a certificate of sponsorship."
"This page explains the skill level and appropriate salary rate for physiotherapists, and tells you how to meet the resident labour market test."
Under the heading "Skill level" the code sets out the requirement that all jobs are at or above NVQ or SVQ level 3. It then states that the jobs of assistant practitioners, physiotherapists and senior physiotherapists are at or above that level, and that the jobs of physiotherapy assistants and technical instructors are below it. Under the heading "Appropriate salary rate" it sets out the minimum rates of salary for the jobs listed as being above the N/SVQ level 3, derived from the Annual Survey of Hours and Earnings or, where alternative salary data is available, from an alternative code of practice. Under the heading "resident labour market test" reference is made to Jobcentre Plus, to national newspapers, to two professional journals and to 16 websites to which resort may be had for advertising on the internet.
"What is the meaning and effect of section 3(2) of the 1971 Act? Is the decision of the Court of Appeal in Pakina correct: namely, that section 3(2) of the 1971 Act meant that the Immigration Rules could not lawfully incorporate provisions set out in another document which had not been laid before Parliament, and which was able to be changed after the Rule in question had been laid before Parliament?"
Pankina v Secretary of State for the Home Department  EWCA Civ 719,  QB 376 was the first case to consider the changes effected by the points-based system: see para 43, below.
Background: the prerogative
"This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative."
But it is hard to see how that provision, which may have been thought appropriate 40 years ago, can have any practical effect today. One has only to think of the possibility of a challenge under article 5 of the European Convention on Human Rights, which declares that no one shall be deprived of his liberty save in accordance with a procedure prescribed by law. The old order, under which such a sweeping power could be exercised at will by the executive, is now long gone.
The negative resolution procedure
The Pankina line of cases
The test for validity
"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….
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……., 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…."
The statutory scheme
"To qualify for leave to remain as a tier 2 Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets those requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
(e) if applying as a Tier 2 (General) Migrant…….the applicant must have a minimum of 50 points under paragraphs 59 -84 of Appendix A."
Solutions suggested in other cases
"In essence the distinction which both as a matter of principle seems sensible and is supported by the authorities is that between (i) the substantive requirements which an applicant has to meet in order to obtain leave to enter or leave to remain under the immigration rules and (ii) the means of proving such eligibility: see paragraph 6 of Sedley LJ's judgment in Pankina itself. The former can only be changed by amending the immigration rules and in accordance with the negative resolution procedure. The latter need not be and can properly be the subject of policy guidance. "
My preferred solution
Guidance and rules
"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.
(b) ….the salary that the Certificate of Sponsorship Checking Service entry records that the migrant will be paid is at or above the appropriate rate for the job as stated in the list of skilled occupations referred to in (a)(i)"
"Before you can sponsor a skilled migrant, you need to check that the job you are sponsoring them to do meets the requirements of the skilled migrant tier:
- The job must be skilled at N/SVQ level 3 or above;
- The job must be paid at the appropriate rate or above;
- You must normally have carried out a resident labour market test for the job before sponsoring a skilled migrant.
This section contains codes of practice for every occupation. The codes of practice give information on skill levels and appropriate rates, and advise on where to advertise the job. This is so that you can check that the job meets these requirements. If the job does not meet these requirements you cannot issue a certificate of sponsorship….." (emphasis added).
The present case
Disposal of the appeal
Flexibility or predictability?
Rules, guidance and evidence
"Permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it, that he will be able to bear his share of any liabilities the business may incur, and that his share of its profits will be sufficient to support him and any dependants. The applicant's part in the business must not amount to disguised employment, and it must be clear that he will not have to supplement his business activities by employment for which a work permit is required. Where the applicant intends to join an existing business, audited accounts should be produced to establish its financial position, together with a written statement of the terms on which he is to enter into it; evidence should be sought that he will be actively concerned with its running and that there is a genuine need for his services and investment."
Para 20 provides for the position of someone such as a writer or artist who may be granted an extension of stay "if the applicant can produce satisfactory evidence that he is [without taking work for which a permit is necessary] supporting himself and his dependents." Para 21 provides for a woman entering the United Kingdom for early marriage to a man settled here. If the marriage does not take place within three months "an extension of stay is to be granted only if good cause is shown for the delay and there is satisfactory evidence that the marriage will take place at an early date."
(i) job skills;
(ii) appropriate rate for the job;
(ii) shortage occupations; and
(iv) resident labour market test,
underpinned by non-mandatory guidance as to the evidence to satisfy the requirements promulgated in a form which was not part of the immigration rules and was not laid before Parliament. That would amount to "the means of proving such eligibility" – that is, meeting a requirement expressed in general terms. Such a system could have the advantage of providing flexibility in relation to variations in the employment market as between different industries and different regions. But it would be less easy to administer and less predictable in its decision-making. At present the position is that these four general requirements (or such of them as are relevant in a particular case) are to be conclusively determined by a detailed code which has not been laid before Parliament, and which the Secretary of State can and does change from time to time as she thinks fit. For that reason the appeal must be dismissed.
"a rule is any requirement which a migrant must satisfy as a condition of being given leave to enter or remain, as well as any provision 'as to the period for which leave is to be given and the conditions to be attached in different circumstances'."
At paragraph 97 he summarises the test of a rule as including
"all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain".
As I see it, there is no distinction between those two formulations of the principle.
130. (a) Everyone who is not an EEA national can apply for a visa to enter or remain in the UK on the footing that he will be in skilled employment.
(b) To obtain such a visa he is required to score a minimum number of points.
(c) His prospective employer must be a licensed sponsor.
(d) Once a licensed sponsor has issued to him a certificate of sponsorship, identified by a reference number, the applicant can apply for a visa.
(e) By reference to the certificate of sponsorship, and to a checking service entry relating to the certificate which the sponsor will have made for her benefit on-line, the Secretary of State calculates whether the applicant has scored the requisite number of points.
(f) Many applicants for leave to enter or remain as a Tier 2 (General) Migrant are required to score points on the basis that the proposed employment passes the resident labour market test, i.e. that the sponsor has made a genuine attempt to fill the vacancy with a settled worker.
(g) The sponsor's checking service entry must indicate that the sponsor has met the requirements of that test, as defined in guidance published by UKBA in respect of the job: para 78A of Appendix A to the rules currently in force.
(h) If either the sponsor or the applicant fails to satisfy a requirement set out in UKBA guidance and referred to in the rules, the applicant fails to meet the related requirement in the rules: Rule 245A(c).
(i) Paragraph 278 of the Guidance for Sponsors in relation to Tiers 2 and 5 of the Points-Based System, effective from 6 April 2012, states:
"You must have advertised the vacancy as set out in this guidance and in the code of practice specific to the type of job. This includes mandatory advertising in Jobcentre Plus ... for jobs under Tier 2 (General), plus one other advertising method permitted by the relevant code of practice."
(j) Paragraph 280 states that the advertisements must remain for 28 days and paragraph 282 confirms that the use of one of the permissible methods of advertising other than at the Jobcentre is mandatory.
(k) The relevant code of practice for, let us say, a physiotherapist shows that the other mandatory method of advertising must either be in a national newspaper or in one or other of two specified professional journals or on one of 16 specified websites: Skilled Occupation Code 3221.