New Judgment: R (Alvi) v Secretary of State for the Home Department  UKSC 33
18 Wednesday Jul 2012
On appeal from  EWCA Civ 681
The case concerned the UK Border Agency’s list of skilled occupations contained in the Occupation Codes of Practice and whether it was part of the Immigration Rules, as the Codes in which the list was set out has not been laid before Parliament under the Immigration Act 1971, s 3(2). The list of occupations is referred to in para 82 (a) (1) Appendix A of the Immigration Rules.
The Court dismissed the appeal of the Secretary of State. They rejected the submission that it was open to the Secretary to control immigration in a way not covered by the Immigration Rules at common law under the Royal Prerogative. Everything which is in the nature of a rule as to the practice to be followed in the administration of the 1971 Act must be laid before Parliament. Resort to the technique of referring to outside documents, is not in itself objectionable, but it is if it enables the Secretary of State to avoid her statutory obligation to lay any changes to the rules before Parliament. The Occupation Codes contain general guidance for sponsors and caseworkers, but they also contain detailed information, the application of which will determine whether an applicant will qualify for entry or leave to remain. Any requirement which, if not satisfied will lead to an application for leave to enter or remain being refused is a rule within the meaning of s 3(2). So a fair reading of s 3(2) requires that it be laid before Parliament.
The Court acknowledged that the volume of material that will now have to be laid to give effect to the Court’s judgment will impose a heavy burden on Parliament. The Court questioned whether the current system, which is over forty years old, is still fit for purpose today, but any changes must be a matter for Parliament.