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Defeat for Home Office on immigration rules

20 July 2012 #Employment


The Supreme Court yesterday handed down judgment in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33 and some commentators are already saying it could be one of the most important judgements on immigration in a very long time.

The Telegraph reported yesterday, Supreme Court delivers blow to the immigration rules, the Supreme court was unanimous in it decision that it was wrong to bar foreign workers, students and other migrants from the UK under requirements that have not been laid before Parliament.

Background

Under the Immigration Act 1971 the Home Secretary is required by law to put any immigration “rule” changes to MPs.

The case centred on Mr Alvi who came to the UK in 2005 as a student and was granted permission to stay and work as a physiotherapy assistant.

He was refused an extension of his visa in 2009 because he did not meet the new job qualification and salary requirements that had recently been introduced under the immigration Points Based System in November 2008. Under this system migrants are awarded points for certain criteria to be able to make a successful application. However, those new requirements under which Mr Alvi’s application was refused were set out in a code of practice and not included in official Immigration Rules that are presented to parliament.

Mr Alvi argued the decision was unlawful because Parliament had not actually scrutinised the specific Home Office-set guidance relating to his occupation.

Practitioners have been keeping a close eye on the progression of this case through the courts. Yesterday Mr Alvi’s view on the unlawfulness of refusals of applications based on Home Office set guidance was upheld by the Supreme Court. The leading justice in the case, Lord Hope, commented on the recognition that the judgment is going to create a huge amount of work for Parliament.

Implications

Shahram Taghavi, who was involved in the Supreme Court case, said:

“Today’s ruling will have a profound impact upon the current corporate immigration system, and effectively represents a wholesale collapse of the legal framework for immigration policy in the UK. This decision will no doubt reverberate loudly and widely, given the sheer number of cases on related matters winding their way through the Courts at present.”

With the potential for legal challenges from not only migrant workers but family migrants and others this could be a very significant development that could go to the heart of the Immigration Rules themselves.

A Home Office spokesperson was quoted:

"We will act quickly to ensure the requirements of this judgment are met and that the necessary guidance is transferred into the Immigration Rules”.

The lack of scrutiny on this Home Office ‘guidance’ on making applications has been the issue for many. By by-passing the statutory requirement to lay any “rules” before Parliament for scrutiny, the Home Office has now opened itself up to an unprecedented number of legal challenges on their past decisions refusing applications based on their guidance.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
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