I dropped into court this afternoon to see how the PBS challenge was going. Unfortunately I missed what sounds like a masterclass in the morning from Michael Fordham QC, who led the assault on the vires of the entire PBS scheme, which is enacted through policy ‘guidance’ rather than by the official means of changing the immigration rules, which is section 3(2) of the Immigration Act 1971. The argument is that because the requirements of s.3(2) have not been followed, the policy guidance is unlawful, or at least cannot be law. Lord Justice Sedley threw in a reference to the Case of Proclamations  EWHC KB J22, 77 ER 1352, (1611) 12 Co Rep 74, in which Chief Justice Coke held that the executive cannot simply create laws without Parliament:
The King has no prerogative but that which the law of the land allows him.
Lord Justice Sullivan commented that the Secretary of State was caught on Morton’s Fork, because if the policy guidance is just guidance and does not need to be enacted by s.3(2) then it cannot be applied as if it were law. Discretion must be exercised in applying guidance and officials must consider the underlying purpose of the guidance, not merely mindless apply its strict terms. However, this creates a real problem for the tribunal on appeal – by what criteria could it allow or dismiss appeals if the tribunal is to review whether discretion was properly exercised?
In contrast to the tribunal (‘A tough lot these Senior Immigration Judges!’ said Sedley LJ), the Court seemed impressed by the human rights arguments that were being run. The bench made the point that when considering how compelling the reasons are that a person should be allowed to stay, the tribunal must also consider how compelling the reasons are for a person to be made to leave. If the case does not involve public safety, there may well be no compelling reason. The bench was clearly willing to scrape below the surface of the stock answer, which is that it is necessary in order to maintain immigration control. Following Huang, that is merely circular reasoning. The immigration rules do not define the extent of Article 8. It therefore follows that it cannot be right blindly to state that in all cases where a person does not meet the requirements of the rules it must be necessary to remove them.
All very interesting. The case continues tomorrow and it looks like it may well conclude tomorrow.
I’ll be away for a few days now.