Statement of Changes in Immigration Rules (Cm 8423)

Lord Taylor of Holbeach Excerpts

Monday 26th November 2012 Grand Committee

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.