The interim cap judgment

We had the written judgment in relation to our policy challenge in Joint Council for the Welfare of Immigrants, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 3524 (Admin) (17 December 2010) yesterday. Please see our earlier posts on the background to this.

The judgment is available at the JCWI main website. There are various typos, and problems with the other versions currently in circulation on the net.

It’s not as yet clear whether the Secretary of State is going to seek to appeal the judgment or not, nor what their policy in dealing with cases that were refused on the basis of the interim cap is. We’re awaiting a response to some questions that we’ve put to them about this and current policy following our visa age challenge case.

Key points


  • The Defendant’s intention in laying HC 59 and HC 96 before Parliament was to change the Rules so as to give her the power, not merely to determine the limits for Tier 1 and Tier 2 and incorporate those limits into the Rules by cross-reference to the UKBA website and PBS Guidance in existence at the time, but also to be able thereafter to alter them at will by making such alterations to the website and/or the Guidance as she saw fit.
  • The above is precisely what Pankina says that the Secretary of State may not do – a rule which said in effect, that the practice to be followed will be set out in guidance, or be published on a website, which the Secretary of State would be free to change from time to time at her discretion would be a deliberate evasion of the statutory purpose – in enacting section 3(2) Parliament did not intend that every alteration to the Secretary of State’s practice, however minor should be subject to the scrutiny of Parliament. It is unnecessary to consider the precise point in the spectrum at which Parliamentary scrutiny is not required because the quantification of the limits on the number of applicants who may be admitted under Tier 1 and Tier 2 is, on any basis, at the very top end of the spectrum (Sullivan LJ)
  • If it is possible to interpret HC 59 and HC 96 in such a manner as to render the changes to the Rules lawful rather than unlawful, then the court should adopt such an interpretation (Sullivan LJ). It was possible to construe the rules as referring (and referring only) to the limits published or specified in the UKBA website and the Addendum to the PBS Guidance which were published on 19th July 2010 when the changes came into effect, but as there was no limit then specified, this did not make the process lawful – stating an “aim” is not specifying a limit – if material in extrinsic documents is to be incorporated by way of cross reference, it is imperative that that material is clearly identified – it is essential that those who are administering, or who are subject to, the rules know precisely what they are and where they are to be found – if the changes to the rules say that material in document X is to be incorporated into the rules, then that material must be contained in document X, and the fact that it can be found somewhere else in documents Y or Z is beside the point – if there is material which is to be incorporated into the Rules, arguably that material should, like the changes to the Rules themselves, be available to Parliament for its scrutiny for the full 40-day period (Sullivan LJ)
  • On the duty to consult as the defendant was imposing a relatively modest reduction in percentage terms overall, as an interim measure for a relatively short period, and was making some arrangements to deal with exceptional circumstances during that interim period, there was no obligation to consult prior to imposing interim limits on Tier 2 (Sullivan LJ)

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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