The High Court’s judgment in relation to our joint challenge along with the English Community Care Association is a welcome development (all be it one which may come to be appealed). It confirms once again that the Government cannot altogether simply sideline Parliament’s role in scrutinising its Immigration Rules – in this case the numerical limits it sought to impose as part of the interim cap scheme. It also of course has significant implications for the migrants who were affected by the imposition on an unlawful interim cap.
Unlawfully sidelining Parliament
In essence the Court found that the Government had acted unlawfully because it had failed as obliged by section 3(2) of the Immigration Act 1971 to tell Parliament what its rule changes were though the medium of formally laying those changes before it.
Up until last Thursday the Government had been arguing that its powers to set numerical limits for the interim cap were altogether exempt from this requirement. Their disingenuous argument was in essence that the numerical limits themselves (as opposed to the introduction of the limits) were not material changes, and not therefore technically part of the changes to the Immigration Rules.
Mercifully the Court rejected this line of argument. To have done otherwise would have been tantamount to giving the Home Secretary a near unilateral power, unconstrained by law, and indeed Parliament, to set any limit in relation to the cap. The implication that would flow from this is that the Home Secretary would have been given a power to set the limit from anywhere from zero to 100,000. It short, such a judgement would have been entirely at odds with any understanding of parliamentary democracy.
The Statement of Changes in Immigration Rules- lawfully Sidelining Parliament?
It can’t have escaped the attention of most that in response to Friday’s ruling the Government has now decided to lay its Statement of Changes before Parliament. These changes now bring the quantum of the limit into the Rules. For tier 2 the numerical limit for certificates of sponsorship for tier 2 employers is 10, 832 and has immediate effect, and tier 1 (General) for overseas applicants is closed with effect from 23.12.10. Whilst the laying of these rules is not consistent with Parliamentary convention which requires 21 days notice, it certainly not unlawful, so what can we glean from this?
In essence this should serve to highlight the serious shortcomings in the way we actually make Immigration Rules. The problems are two-fold. Firstly unlike statutory Bills, or some secondary legislation that is subject to the affirmative resolution procedure, the numerical limits and other changes to the Immigration Rules do not actually require express approval from Parliament before they come into effect – they are subject instead to the negative resolution procedure. As such as is the case here they may not even be debated, scrutinised or considered at all before they come into effect.
A second problem can be exemplified through this case. Assuming the numerical limits relating to Tier 2 (General) were subsequently debated and disapproved by Parliament, the effect of the Immigration Act 1971 would be that the offending quntum contained in the rule itself would still in fact remain in force. It would in fact remain valid until such time as new rules were placed before Parliament. This is because Parliament has no power under section 3(2) of the Immigration Act 1971 to actually annul the Rules themselves- only the Statement of Changes.
The need for change
It is worth recalling that Immigration Rules matter. They determine who can come into the country and remain here, and on what terms. They have significant implications not only for migrants and host communities, but for the operation of the welfare state and the many businesses and universities who all to some extent rely upon such labour. So too at the macro-level do they have implications for the economy as a whole.
Despite the importance of the Rules, and their ever- growing significance for different sections of society in an increasingly globalised world, the nature of Immigration Rule making has largely remained steeped in its First World War origins. During the First World War the Executive maintained broad powers unconstrained by Parliamentary control on the grounds that this was necessary to deal with German spies.
It is instructive to look back at the parliamentary debates that led to the passage of the Immigration Act 1971- the Act that regulates immigration rule making in the UK. The late Lord Gardiner remarked
‘…we have now got away from what has always been the bedrock of immigration; namely the old [First World War] emergency laws passed in 1914. That is, itself, of course a great improvement. But there is still no Parliamentary control.’
It is surely of some regret that these observations should remain as pertinent at the close of 2010 as they did back in 1971.
JCWI raised these issues both in its response to Simplifying Immigration Law (part of the simplification project) and in the recent debate on the immigration cap. You can access our consultation response papers from our website. You can also read about these issues in our Guide to the Points Based System due out in January 2011.
Please note that we are awaiting the written judgment in the cap challenge which will not be available until January 2011 and will prepare a more ddetailed note at that time. In the meantime please refer to our separate note about the judgment and the implications for applicants who were previously refused under the Rules.