The Case of the Lost Prerogative
The judgments in Munir  UKSC 32 and Alvi  UKSC 33 are perhaps the most important in immigration law since the Immigration Act 1971 was passed. The Supreme Court holds that the ancient royal prerogative to control the entry of aliens has been displaced by statutory limitations, rejecting the Secretary of State’s bold argument that because immigration control was a matter of royal prerogative she was under no obligation to lay any rules before Parliament at all. Instead, Parliament intended by the 1971 Act that changes to immigration requirements must comply with the terms of that Act.
The Court goes on to hold that the requirements of the Act include that any substantive changes to immigration criteria are laid before Parliament in the slightly arcane ‘negative resolution’ procedure. The difficulty in this and previous cases was defining what was a substantive requirement and what was merely evidential or procedural and therefore perhaps exempt from the requirement to be laid before Parliament.
The leading judgments in Alvi are those of Lord Hope and Lord Dyson. They agree on everything of substance but disagree on one matter of detail.
Lord Hope goes first and at paragraph 57 tackles this central question of the type of requirement that must go through the Parliamentary procedure:
I agree with Lord Dyson (see para 94, below) that any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). A provision which is of that character is a rule within the ordinary meaning of that word.
He then holds that the details of how the resident labour market test are satisfied (what type of newspaper, how long the advert is open for, etc) are not of this character and not substantive requirements that must be laid before Parliament:
I am inclined think that information as to where to look to assess the state of the resident labour market is not of that character. It is referred to in the preface to the list of occupations as “advice” and in paragraph 71 of Appendix A as “guidance”. The language that the list itself uses is, of course, not determinative. A provision that is called “guidance” can nevertheless be a “rule” if it satisfies the test which we have identified. But it seems to me that to call it guidance is apt in the case of this material. It tells the sponsor what procedure he should follow, and the kind of evidence he should examine, in order to fulfil his duties as sponsor to test the resident labour market in cases where that test must be satisfied.
However, salary levels are such a requirement (par 59-60):
The references in the Codes to the appropriate rates for the job are, however, of an entirely different character … As the migrant must be paid at or above the appropriate rate for the job to qualify, the conclusion that information as to what that rate is has the character of a rule seems to me to be inescapable … It follows that the rates themselves and any changes to them must be laid before Parliament. It would be open to the Secretary of State to avoid having to lay changes if it was provided by the rules that an objective criterion, such as one of the recognised indices for measuring inflation, was to be used. But, as her ability to make changes is not limited by reference to any such criterion, each and every change to these rates must be regarded as falling with the scope of the obligation under section 3(2).
Similarly, at paragraph 61 Lord Hope that the list of jobs are also rules that must be laid in order to be effective:
The statements that the job must be skilled at N/SVQ level 3 or above, and that the job of a physiotherapy assistant is below that level, set out criteria which have all the character of a rule … Whether the job that the applicant is applying for or occupies is above or below that level will determine whether or not it meets the requirements of the skilled migrant tier. It is a criterion which must be satisfied.
Lord Dyson agrees on everything except whether the details of the market labour test are a substantive requirement: he holds that they are and therefore that they too must be laid before Parliament. Lord Clarke and Lord Wilson agree with Lord Dyson, meaning that this is the majority view.
The implications in the short and the longer term are both huge. In the short term, the judgments mean that almost all of the requirements in the Policy Guidance, the Codes of Practice and the other satellite documents that accompany the Points Based Scheme have no legal effect. This drives a coach and horses through the thousands of meticulously detailed pages of the PBS.
Further, the judgment must mean that the income and documentary requirements for the new and almost unintelligible Appendix FM to the rules, which sets out the controversial strict new family immigration requirements, are also legally ineffective, at least in part. There has been considerable coverage of the new minimum income threshold of £18,600 for spouses, but what only the lawyers will realise (and not all of them because the rules are such gobbledegook) is that many of the requirements are actually set out in the Immigration Directorate Instructions (IDIs).
For example, the new rules specify that a minimum income of £18,600 is needed, but the rules then merely state that the sources must be of a ‘specified’ sort. An alternative route to bring in a spouse is to show savings of a ‘specified’ amount. The document in which these requirements are ‘specified’ is the IDI, which unlike the rules has not been laid before Parliament. The IDI on finances says that the income must have been at the required level for six months, that it must be from the sponsor not the foreign spouse and all sorts of other things – none of which has any legal effect. All a successful applicant seems to need to do is show some sort of income of £18,600 from any source at all.
The longer term implications are that Parliament now seems likely to legislate to amend the procedure by which immigration rules are made, perhaps removing them from Parliamentary scrutiny altogether, and that the Secretary of State may seek to recover her lost royal prerogative, allowing the criteria for entry to the UK to be chopped and changed at will. How that would square with Theresa May’s attempt to constrain the courts from allowing human rights appeals on the basis that Parliament decides the law is not entirely clear.