Can we knock the cap off?

So we’re in the High Court tomorrow on our judicial review challenge of the interim cap. We’re due to be heard alongside R (English Community Care Association) v Secretary of State – they’re challenging the interim limits that apply to tier 2 of the Points Based System. We’re actually challenging the limits that apply to tiers 1 and 2 in our own capacity.

What’s this all about?

You may recall back in June/July the Coalition introduced its interim cap. It did this by formally laying some rules before Parliament which introduced the interim cap that was to apply to tier 1 (General) (for highly skilled migrants) and tier 2 (General) (for skilled workers).

The Home Secretary however omitted to actually formally lay the actual figures for the cap before Parliament, and instead chose to subsequently put something in slightly more vague terms up on the UKBA website.

For tier 2 it simply said that there was to be a 5% reduction across both tiers 1 and 2. Employers were also notified directly by e mail about the website entry and the reduction in their certificate allocations. For tier 1 the website entry specified the monthly limit, and said that unused capacity would be carried over to the following month. In both cases however there was no forewarning of the changes nor indeed any consultation.

What are we arguing?

We’re arguing on the basis of some previous legal cases (Pankina and English Churches)  that section 3(2) of the Immigration Act 1971 required the Secretary of State to formally lay the actual figures for the before Parliament back in both June and July of this year. In our view these are part of the Rules and they affect status and entitlements of immigrants – they really should be there. As the figures were not laid before Parliament in the Statement of Changes to the Rules we believe that the interim cap is illegal and are therefore asking the Court to quash them.

What is the Secretary of State arguing?

The Secretary of State is arguing that whilst the existence of a limit is part of ‘the rules’ for the purposes of section 3(2) of the Immigration Act 1971 and  as such must be laid before Parliament, the numerical limits are not. It therefore follows that they believe that there’s no need at all for these to be formally laid before Parliament.

Why does this matter?

How about a commitment to the principle of the rule of law and democracy?

As the House of Lords Statutory Instruments Merits Committee noted in relation to our previous submissions the implication that flows from all of this is that the Home Secretary is given a unilateral  power to change the limit from 0 per month to 1,000,000 without any need what so ever to place this before Parliament for their consideration.

Now leaving aside for one second the merits of this case,  the question of  whether this knee jerk style of policy making is by any stretch of imagination conducive to the smooth running of businesses, or indeed the broader issue of whether the cap is genuinely  in the UK’s economic interests (the independent Migration Advisory Committee in fact found that the type of immigration we are trying to further reduce brought real economic benefits to the UK and did not  displace national workers)  is this really how we want  parliamentary democracy to  function?

You can read all about the cap, and the forthcoming changes in our Guide to the Points Based System out in January 2010

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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