Statement of Changes in Immigration Rules (Cm 8423)

Monday 26th November 2012 Grand Committee

Motion to Take Note

16:28

Moved by

[Baroness Smith of Basildon]

That the Grand Committee takes note of the Statement of Changes in Immigration Rules (Cm 8423). 9th Report from the Secondary Legislation Scrutiny Committee

[Baroness Smith of Basildon]

My Lords, I have put forward this Motion to take note of the statement of changes in the Immigration Rules to make sure that the Government give your Lordships’ House an opportunity to debate a very serious matter. You just have to look at the Explanatory Memorandum to see the range of criteria covered by these changes to the Immigration Rules. The changes were brought in by negative resolution, so this is the first opportunity that your Lordships’ House has had to discuss the matter, despite the legal judgment that led to these changes being given on 18 July this year and the fact that the rules have already come into effect. It would have been helpful to your Lordships’ House had there been an opportunity for an earlier debate and an explanation of why the matter had to be dealt with in this way. I do not intend to go into the individual areas of guidance but I have a number of questions for the Minister. It would be helpful, first, to hear about the circumstances that led to the statement of changes being laid.

I think it is appropriate to say how grateful we should be to the Secondary Legislation Scrutiny Committee, whose work on this matter has been extremely helpful. Perhaps the summary at the beginning of its report is the best place to start. To give some background, on 18 July the Government lost a major immigration case in the Supreme Court. In the case involving Alvi v Secretary of State for the Home Department, the Supreme Court maintained that substantive changes affecting immigration applications must be laid before Parliament. Mr Alvi had been refused leave to remain under tier 2 of the points-based system because his level of skills and salary did not meet the criteria. However, the Supreme Court quashed that ruling as the criterion used to make the decision was not part of the rules as laid before Parliament under Section 3(2) of the Immigration Act 1971 but had been published only in the guidance, which had not been subject to parliamentary scrutiny procedure and, therefore, approval.

The last compete revision of the Immigration Rules was laid before Parliament in 2008, but since then considerable guidance from the previous Government and this Government have been added. The question raised by this and previous cases was whether this was really guidance or a substantive change in the rules.

As we can see from this weighty document, Cm 8423, there are 290 pages of what had been issued as guidance but on 19 July, the day following the Supreme Court judgment, the Government laid the document before Parliament to take immediate effect on 20 July, even though the House of Commons was not then sitting— of course, your Lordships’ House was and a Written Statement was made by the Minister at that time. Does the ruling of 18 July 2012 mean that all immigration cases decided on the basis of guidance issued since 2008 have been decided on without a legal basis for that decision?

Paragraph 4.3 of the Explanatory Memorandum states that the changes apply to all applications on and after 20 July, when the statement to change the rules was laid, but what about the decisions taken before? What is the status of the decisions taken before Cm 8423 was laid? Have there been any further appeals against refusal since 18 July on the basis of the court’s judgment? It would be helpful if the Minister could say whether all the guidance issued is included in the statement. If it is, I am not 100% clear why all the guidance is imported into the rules—the Secondary Legislation Scrutiny Committee referred to that as well. Was any work undertaken to see what should legitimately remain in guidance or whether it should all be imported into the rules?

It strikes me that within the rules—that is, what was in guidance—are lists and lists over pages and pages referring to banking organisations where the financial information will be accepted by the Government. That was previously in guidance but is now in the rules, so does that mean that any deletions or additions to the list can be made only by rules and in future not be changed in the guidance? Because of the volume of the material, the Secondary Legislation Scrutiny Committee was unable to verify the Government’s statement that the new statement of changes includes all and only that previously issued in the guidance. It would be helpful if the Minister could confirm that there is nothing in the rules other than what was previously in guidance.

The basis of the Supreme Court decision was that the guidance was not subject to any parliamentary procedure. Now that the Government have brought in this statement of changes by negative resolution, are they satisfied that they have done enough to ensure that this has the full force of law? One of my concerns relates to the negative procedure, which I shall mention again in a moment. If we had not requested this debate today, there would have been no debate in your Lordships’ House on this issue. We will not be asking for a vote on this, as the Minister is aware.

As the Secondary Legislation Scrutiny Committee said, the statement of changes provides a short-term solution, but I know that from previous debates the Minister is aware of concerns that have been raised about the interaction between the Immigration Rules and the ECHR. The committee also raised further concerns about this on that occasion, as it had done previously. Is the Minister able to make any comment about that? I noted that paragraph 6 of the Explanatory Memorandum states that no statement is needed on the ECHR as the order is subject to the negative resolution procedure. However, unless I have misunderstood, that is not the view taken by the Secondary Legislation Scrutiny Committee.

We all understand that from time to time Governments have to bring forward emergency legislation or react immediately to events such as court judgments. Can the Minister confirm that that was the Government’s reason for laying the statement of changes by negative resolution on the day following the judgment in the case of Mr Alvi? If it was, I am then unclear about why the Government waited until then, because they had been aware of this problem for two years. It was pointed out to the Government by the then Merits of Statutory Instruments Committee, following a previous statement of changes—HC96—in 2010 that was also laid urgently following two other court judgments.

Having read through the judgments, it seems that in 2010 the situation could not have been clearer. In July 2010, the challenge made in the case taken by an education charity, English UK, was that the decisions were taken ultra vires. It said it was challenging the change made to the Immigration Rules because it,

“ought to have been introduced by a change to the Immigration Rules and was not capable of being introduced by a change in the UKBA’s Guidance”.

In his judgment on that case, Mr Justice Foskett said that,

“the revised criterion could not be put in place by virtue of a 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”.

He made other comments on that in his judgment, such as that:

“It would follow from this that, if a change to current practice (even if reflecting the requirement of a rule) did not involve any alteration of a substantive criterion for admission or for leave to remain, there would be no objection to the change being effected in some form of extrinsic guidance”.

Basically, if it is a substantive change to the rule, it cannot be in guidance but has to be via legislation. He also said:

“I do not doubt that the changed approach in the new guidance does operate to change materially the substantive criteria for entry for foreign students”,

and that that,

“cannot be achieved by a change in guidance—it must be achieved through the medium of a rule change”.

That was in July 2010.

He recognised the complexity of the issues and said that the difficulty,

“arises when something is done by means of a change in existing guidance which arguably constitutes a change in the practice adopted by the Secretary of State in the administration of the rules regulating the entry into the UK of non-nationals”.

He said that the,

“word ‘guidance’ itself would ordinarily connote something less prescriptive than a rule”.

He said that it was a very complex area. He then went on to say that, if that is correct, simply,

“extrinsic guidance cannot be used in the manner in which it was sought to be used in this case to make a material or substantive change in existing immigration policy without the negative resolution procedure set out in section 3(2) of the Immigration Act being implemented”.

There was a similar case in June 2010 in the Court of Appeal, where it was said that,

“immigration rules are today different from and more than policy”.

The Government also lost that case a month earlier.

I know that I have already asked the noble Lord a couple of questions but I struggle to understand this and perhaps he can help. Why did the Government not act earlier when the judgment in those two cases seems very clear? In both cases, the judge said that guidance was different from rules and substantive change could not be made by guidance. Were there any further challenges between those two dates, from June and July 2010 through to July 2012? Clearly, changes were not made in 2010 that should have been made. By bringing this order forward now, the Government recognise that perhaps changes should have been earlier. It would be helpful if the Minister could tell the Committee what changes there will be in practice from now on to ensure that the Government do not find themselves in this position again.

The other point concerns scrutiny. In his final comments, Mr Justice Foskett referred to the negative resolution procedure, but earlier in his judgment he said that there had to be true parliamentary scrutiny. It would be helpful to the Committee to be given an assurance that the negative procedure now being adopted satisfies the courts and the parliamentary process that this matter has been subject to parliamentary scrutiny.

This is a complex area. The bit that I struggle with most is that the measure was introduced as an emergency process to deal with the 2010 judgments. Anything that the noble Lord can say to enlighten me on that position will be very helpful.

[Lord Avebury]

My Lords, a month ago we debated the first of the post-Alvi statements of changes in Immigration Rules, on a Motion to Regret tabled by the noble Baroness, Lady Smith, not so much because she disagreed with the Government’s objectives but on the narrow ground that the minimum annual income requirement for a person wanting to bring in a spouse from a non-EEA country was not the most effective way of protecting the taxpayer and delivering fairness for the would-be sponsors and their partners. We wanted to highlight the far more questionable government objective of reducing the number of net immigrants below 100,000 by fair means or foul, picking on easy targets wherever they can find them.

As the noble Baroness has explained, the purpose of this statement, which is 295 pages long, including its Explanatory Memorandum, is to transfer requirements that were previously embodied in guidance into the Immigration Rules, satisfying the Supreme Court judgment in the Alvi case that only rules approved by Parliament could have the force of law. It is a weighty document and I cannot help feeling that it is a good thing the Almighty did not have anything to say about the Immigration Rules or Moses would have had a hard time carrying this lot down from the summit.

The Secondary Legislation Scrutiny Committee suggests that we should ask the Government to clarify the status of cases decided on the basis of the guidance since 2008, when the last complete revision of the Immigration Rules was laid, and I will come back to that point. The committee goes on to observe that, in the light of its previous reports and a number of unresolved questions about the interaction between the rules and the European Convention, changes to the primary legislation might be necessary to put its application beyond question. I hope that we shall hear something from the Government on both those matters.

There is a further detailed point about the salary threshold for IT workers. These thresholds are now subject to parliamentary scrutiny, and we are prompted to ask the Government to set out the methodology for calculating them. The statement contains 74 pages specifying the salaries for particular occupations. How often is it intended to revise the figures, with presumably a statement requiring parliamentary approval every time? The problem with this approach is that every minute requirement that has to be satisfied by an applicant for leave to enter or remain in the UK now has to be set out in the rules without any element of discretion whatever being provided to the decision-makers. If a rule leads to an outcome that is unreasonable, it can be rectified only by a further statement of changes, and if there is a minor error in the documentation that has to be submitted in connection with an application, the decision-maker has no option but to reject it. The applicant has to submit a fresh application with all the delay and expense that that involves.

I give an example of the rigidity of the system. Mr AD is self-employed, and in connection with an application to bring his partner in from a non-EEA country he has to prove that his earnings exceed £18,600. For every other purpose “certified” accounts are acceptable, but on page 280 of this statement, the rules demand a full audit, at an additional cost which may exceed £1,000. In response to a letter from Mr AD’s MP, Stephen Lloyd, the Minister for Immigration, Mark Harper MP, says that the Home Office is currently considering whether it needs to insist on audited accounts—a requirement that must have already imposed an unnecessary burden on dozens of sponsors. That is clearly inconsistent with the Government’s declared policy of reducing the load of bureaucracy on small businesses and I would like the Minister to say this afternoon that it will be removed, presumably by a further statement of changes in the rules.

16:45

I give one more example. In the Explanatory Memorandum, paragraph 7.6 says that applicants in Tier 2 (Minister of Religion) must have a job offer from a licensed sponsor and that in the majority of cases the job must have satisfied a resident labour market test to show that no suitable settled workers were available to fill the job. In the case of Buddhist monks this is inappropriate since they are not paid and indeed are forbidden to handle money. The rules pretend to cover this by providing that if a religious worker is “supernumerary” he is exempt from the test, but the term is defined as meaning superfluous to the needs of the monastery. The role of a monk or nun may be vital to the survival of a monastery and at the same time there may be nobody in the UK who could perform it because of its requirements in terms of language, affinity with a particular community and knowledge of the Dharma. Because it cannot be maintained that such a person is supernumerary, there is a serious risk that monasteries will have to close. There are very small numbers in some monasteries and the loss of one monk or nun may well make it impossible for the establishment to continue to function. The only hope of survival might be to bring in a monk from the parent community overseas, but the rules prohibit that solution.

I have asked the Minister for Immigration to meet representative monks from the Theravada Buddhist Sangha UK to discuss this problem and I await an answer from the Minister. In the context of this debate this is an example of the inherent lack of flexibility in the current approach, of which there may be many other instances lurking in this and other post-Alvi statements. A meeting with the Minister would also provide an opportunity for discussing some of the requirements that were being made of Buddhist monasteries as sponsors prior to Alvi. They were being asked to keep detailed records of the comings and goings of monks and these records had to be contained in a locked metal box. I do not know whether, when Alvi came into operation, those particular requirements were rescinded but it is an example of the sort of requirements that were being imposed on sponsors which were totally outside the rules. I would like the Minister to say whether there has been a review of those requirements as well as the ones that are being imposed on the immigrants themselves.

As for the treatment of applications that were refused on the basis that evidence of a particular kind specified in the guidance had not been produced, according to Alvi these requirements were unlawful because they were not in rules approved by Parliament. The guidance on that judgment on the UKBA website sets out that where there is an outstanding appeal or judicial review claim there are three possibilities. If the refusal was solely on the grounds that the specified evidence was not provided, the UKBA should withdraw its refusal and grant leave. This would apply equally in any other case where the refusal was based on some requirement that was not in the rules. Where the UKBA withdraws a refusal to reconsider an application for further leave to remain, if the application was made before the previous leave to remain had expired the UKBA must treat the person as having leave to remain from the date of the application until a new decision is made. There are some cases where a requirement in the rules made no sense without the further statement in guidance. In those cases, neither the rule nor the guidance can be applied and the UKBA must concede the appeal or allow the JR.

The guidance says that UKBA decision-makers should take a similar approach to requests for refusals to be reconsidered only if the applicant is within the time limit for an appeal or for a JR claim and warns that the UKBA will resist claims that are made out of time unless,

“the refusal to reconsider has an exceptionally harsh consequence for the person”,

in which case the decision-maker,

“must consider whether it is appropriate to grant leave outside the rules”.

Otherwise, the guidance states that refusals made on the basis of requirements now decided to have been unlawful are nevertheless lawful unless and until they are overturned on appeal or by JR. That cannot be right. The appeal or JR cannot make the original refusal unlawful; it merely declares whether the refusal was or was not lawful. The inference must be that the UK will not be working to ensure that persons who were wrongly refused have their applications and claims reconsidered. I would be grateful for an assurance that I am wrong on that point because it could be of material importance to a great many persons.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I welcome the debate and I am grateful to the noble Baroness for tabling it. To some degree, scrutiny requires us to find opportunities like this to discuss substantial and important documents such as these statements of changes to Immigration Rules. Although they are frequently introduced under the negative resolution and are of only minor consequence and not debated, they are important for the people whose lives they are designed to affect.

Command Paper 8423, was laid, as the noble Baroness said, in response to the Supreme Court’s judgment in the case of Alvi. It was, in terms of volume, a substantial change to the Immigration Rules. However, it is not a change of policy: it transferred a number of existing requirements that migrants are required to meet from UKBA guidance into the Immigration Rules so that they could continue to be lawfully imposed.

In the case of Alvi, the Supreme Court established the principle that any requirement which, if not satisfied by the migrant will lead to an application for leave to enter or remain being refused, is a rule—it defines a rule—meaning that all such requirements need to be laid before Parliament, albeit through a negative procedure, in the immigration rules in order to be lawful. Prior to this judgment, the law as to what did and did not need to be in immigration rules had been unclear, resulting in numerous legal challenges and uncertainty. For this reason, we welcomed the judgment in Alvi, which overturned some unhelpful case law and provided a clearer framework for the future which will help inform our ongoing work to improve the immigration system.

Although we welcomed the judgment on 18 July when it was handed down, some requirements in the Immigration Rules and associated guidance that still exist were not consistent with its findings. In particular, the visitor, the points-based system and family rules all to varying degrees imposed requirements on applicants by way of guidance. In order to preserve the integrity of the immigration system and to minimise the impact on applicants and case workers, we acted quickly to move the necessary guidance into the Immigration Rules. We laid these changes the day after the judgment and it was in this context necessary to bring the changes into force the following day.

This rule change has raised questions both today and in the Secondary Legislation Scrutiny Committee’s report, which I welcome. Some questions are a direct consequence of the Supreme Court’s judgment; others are in relation to the general approach and style of the rules; and some are in relation to the specific policies contained within this change. I shall answer the questions in that order.

Questions have been asked about the status of the cases decided before the Supreme Court’s judgment, some of which have been based on the failure of the applicant to meet requirements subsequently found to be unlawful because they were in guidance and not in the rules. I can confirm that all applications decided before Alvi were on the basis of Immigration Rules and guidance which were understood to be lawful under the case law of the time. Current Court of Appeal case law makes it clear that these decisions remain lawful unless and until they are quashed in a judicial review proceeding or a statutory appeal succeeds. To that extent, I bow to the fact that this was the view expressed by my noble friend Lord Avebury in this debate.

Further to this, on 6 September, the Home Office published guidance to case workers on how to deal with applications potentially affected by Alvi. This stated that when a case was within time for a legal challenge it would be reviewed on request; this could be done by making a decision without reference to the unlawful guidance or, if that were not possible, because the rule simply did not work without the guidance, it would be remade under Immigration Rules in force at the date of the fresh decision.

I can confirm also that only those requirements that need to be put into rules following Alvi were included in this rules change. The majority of the UK Border Agency’s guidance remains outside these rules and sits alongside it. The Secondary Legislation Scrutiny Committee mistakenly understood this change to be a wholesale importation of guidance into rules, but that is not the case.

It has been suggested that the Home Office should have addressed the distinctions between rules and guidance in a more planned and orderly way. However, that was not possible until the Supreme Court clarified what as a matter of law needed to go into the Immigration Rules. The earlier lead case of Pankina failed to settle the law around what needed to go into the Immigration Rules, but the case of Alvi has. This has necessitated another round of changes, but having settled the law in this area we do not anticipate any similar problems in future. It is undeniable that, as a result of the statement of changes under discussion today, the rules have become much longer—it has been suggested, impractically so, since the full rules now occupy 778 pages. It is important to remember that as the underlying policy remains the same, in that sense they have not made the system as a whole more complicated. Published guidance continues to assist applicants and UK Border Agency staff to navigate and understand the rules. That said, we recognise that the system is complex and are undertaking a more substantial review of rules to consider how they might be made more practical. Indeed, the Migration Advisory Committee has already reported on how codes or practice could be updated and improved, for example by simplifying the resident labour market test. We are currently considering its recommendations.

I turn to the contents of the rule changes. Although the change did not alter the underlying policy, part of it can be seen as belonging to a series of three rule changes, including HC 194 in June and HC 565 in September. Together they constitute a major set of reforms of the requirements for entering or remaining in the UK on the basis of family or private life, and the form part of the Government’s programme of reform of all routes of immigration into the UK. People have a right to respect for private and family life under Article 8, but it is a qualified right; it is legitimate for the Government to interfere with its exercise when it is in the public interest to do so and when the measures taken are necessary and proportionate to achieving a legitimate aim of protecting the public or safeguarding the UK’s economic well-being. For the first time, the Immigration Rules properly reflect the public interest in controlling immigration and protecting the public.

The Secondary Legislation Scrutiny Committee asked whether the Immigration Rules would fully achieve this aim and specifically whether the approach could be sustained through the courts. It is right to highlight that it remains to be seen what view the courts reach on the effect of the rules and their compatibility with the qualified right with respect to private and family life under Article 8. The courts have a clear constitutional role in reviewing the proportionality of measures passed by Parliament and the executive decisions made under them, but the Government now expect that the courts will give due weight to the views of the Government and Parliament on these matters of public policy. These matters were not, however, introduced by this statement of changes. This rule change was quickly and effectively implemented under the Supreme Court’s judgment in Alvi, successfully maintaining the integrity of the immigration system with minimal disruption to applicants and case workers alike. That was the objective of the prompt response which we made.

17:00

I will comment on few of the questions that have been asked by the noble Baroness, Lady Smith of Basildon, and my noble friend. The difference between the 2010 case and the case of Alvi was the idea of substantive criteria. It was envisaged that all other criteria were not substantive so it brought into question the concept of non-substantive criteria that now need to be in the rules. It was also asked whether any additions to the list have to be in the rules. They will have to be set out in the rules so they will require tabling before Parliament, but they will be subject to the negative procedure. So Parliament will see changes to the rules but it will not necessarily see changes to guidance since these are management issues rather than defining quasi-legal requirements.

The noble Baroness asked why we did not act earlier. I made it plain that we needed a substantial definition of the law which the Supreme Court case of Alvi provided. Are there any further challenges ahead? There have been some further challenges but not in significant volumes. We have not seen a tsunami of new applications based on that judgment. Perhaps the noble Baroness answered her own question on the European Convention on Human Rights. Because it is a negative resolution and does not amend primary legislation, no statement is required. I have given my view on its standing within that framework of law.

My noble friend Lord Avebury has been following up on a number of issues. I am very grateful to him for doing so. He asked whether it might be possible to look at the issue of monks and monasteries. I would be very happy to talk to him about it and see how we can best consider this matter in the light of his own interest by making sure that their concerns are properly met. I thank him for his role in contributing to the debate today. With that I hope I can persuade the noble Baroness to withdraw her Motion but thank her very much for bringing it to consideration.

[Baroness Smith of Basildon]

I am grateful to the noble Lord. He has attempted to answer a number of the questions that have been raised. I am not a lawyer but I struggle when two judgments from the Court of Appeal say there is a problem with guidance and something not being in the rules, and then no action is taken so there is a further Supreme Court judgment. Common sense must tell us that we should be prepared for this or at least take action to ensure that in future we are careful what goes into guidance and what goes into rules. Perhaps the noble Lord could write to me. I do not want to press the point today but I asked if there were any cases between 2010 and 2012 because of there having been a change from guidance to rules. If he can let me know on that, that would be helpful. He said that a review would be undertaken around this issue. That would also be helpful and anything that he can share with your Lordships’ House on that would be welcome.

One point he did not raise is the issue of parliamentary scrutiny. Perhaps the review could look at that. I asked about negative resolutions, what was said in the Court of Appeal judgment about the process of scrutiny and whether negative resolutions were acceptable because they do not—as the noble Lord, Lord Avebury, pointed out—give Parliament the opportunity to discuss the content in the same way. Of course, they are unamendable. They are brought for discussion only if a Member of your Lordships’ House decides to do so. The noble Lord did not raise that point, presumably because he is satisfied on the negative resolution order. It would be helpful if the review could look at the issue of parliamentary scrutiny of what are significant rule changes.

As our last debate showed, these rule changes have an enormous impact on people’s lives. I seem to have become the noble Baroness for immigration cases since our previous debate. Many of the e-mails and letters I have received and passed on to the Minister are heartbreaking. I do not think that the rule changes achieved the Government’s objectives. I do not know what objectives they achieve other than keeping families apart. It is very sad to read of people who can support themselves in this country being kept apart as a couple because that is the impact of the Government’s rule changes. The opportunity to debate the content at times would be one that your Lordships’ House would welcome. I beg to move that the Motion be agreed to.

Motion agreed.