Labour’s ultra vires circumvention of Parliament criticised by Court of Appeal

The last Labour government has faced many criticisms for many, arguably, valid legal reasons, but the case of Pankina & Others* raises yet further questions about their attitude to lawmaking.

The case concerns immigration – one of the most controversial and complex areas of both political policy and law but, fortunately, one which one is not required to study in depth to obtain a Law degree.

However, this author was fortunate enough to have had the opportunity to attend an enlightening talk delivered by an immigration judge last year, and that same judge has now passed to this author the barest of facts about the above case.

The case, in its?entirety, comprised six appellants and six?respondents:

1. The Secretary of State for the Home Department v Anastasia Pankina;
2. Margaret Malekia v The Secretary of State for the Home Department;
3. Aves Ahmed v The Secretary of State for the Home Department;
4. Mohamed Junaideen v The Secretary of State for the Home Department;
5. Irfan Ali v The Secretary of State for the Home Department; and
6. Navindra Sankar v The Secretary of State for the Home Department.

All individuals involved were “graduates of approved United Kingdom tertiary institutions” who wished to remain in the UK and use their new qualifications in positive employment in this country.

Again, it must be stressed that immigration legislation and case law is complex, and rules relating to non-UK students studying in UK institutions are just as complex. Thus, in the interests of keeping this article as concise as possible, background information will be kept to a minimum.

That notwithstanding, the key piece of legislation relating to this case is the Immigration Act 1971 (“the 1971 Act”), and, more specifically, section 3 (2):

The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4)(and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).
If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid).

It is, admittedly, a mouthful of words joined together in legal matrimony, however the key principle is this: the Secretary of State may create a set of immigration rules and present them to Parliament. Parliament then has forty days to object to the rules (“by a resolution”) and if no objection is lodged, the rules become legally enforceable.

The immigration rules, which for a long time recognised that foreign graduates of UK universities were assets to the UK economy, were amended in February 2008 by HC 321, which introduced a points-based system of assessing students’ eligibility. This was further amended by HC 607 in June 2008, which amendment was in force when the applicants in Pankina & Others sought leave to remain as Tier 1 migrants.

Paragraph 3 of Sedley LJ’s judgement provided proof, if proof were needed, that, even in the most complex of cases, even the most senior of judges are capable of injecting humour into their work:

By rule 245Z such applicants must meet a series of requirements, one of which is to have a minimum of 10 points under paragraphs 1 and 2 of Appendix C. Paragraph 2 of Appendix C as amended requires the applicant to have “the level of funds shown in the table below” and to provide “the specified documents”. The table contains a single figure, ?800, to which it allocates a single value of 10 points (why a table is necessary for this purpose is an enigma we are not required to solve).

Furthermore, rule 245AA defines “the specified documents” rather helpfully as “documents specified by the Secretary of State in the Points Based System Policy Guidance as being specified documents for the route under which the applicant is applying”. So no cause for confusion, then… But then again, these are graduates!

The June 2008 guidance defined the documents for the above route as “personal bank or building society statements covering the three-month period immediately before the application … [which showed (amongst other things)] … that there are sufficient funds present in the account (the balance must always be at least ? ?800 ?.)”.

All fair and all clear. As mud. But remember the promise about background information? November 2008 saw new Policy Guidance issued which rearranged the subject completely:

In November 2008 this provision was reorganised so as to transfer the continuity requirement from a parenthesis in the description of the specified document to a bullet point under an introductory cross-heading preceding the cross-head “Documents we require”. It now read:

“Applicants ? must have at least ?800 of personal savings which must have been held for at least three months prior to the date of application.”

That was the policy which led to five of the six individuals being refused leave to remain in the UK – and, according to the Court of Appeal (delivering judgement, Sedley LJ, and assenting, Rimer LJ and Sullivan LJ), it was exactly that. A policy. And “[a] policy is precisely not a rule”.

In order to be effective, so said the Court of Appeal, the “policy” would need to have been incorporated in the set of rules laid down before Parliament. The Court of Appeal weren’t fussy. Any set of amendments would do. It just needed to be laid before Parliament.

In so stating, the Court of Appeal had held that the “policy” was ultra vires, conferring powers beyond, well, its powers. However, that is not the only criticism held by the Court of Appeal:

[T]he objection goes deeper. Albeit the first version of the policy guidance was brought into being within the 40 days allowed by s.3(2) for the Parliamentary procedure, it has been open to change at any time. It is this, rather than the fact that it has in the event been changed, which, in answer to question (1)(c), is in my view critical. It means that a discrete element of the rules is placed beyond Parliament’s scrutiny and left to the unfettered judgment of the rule-maker.

In other words, the Court of Appeal is saying to the (last) government (and no apologies are offered for the very liberal interpretation) “we live in a democracy; no legally-binding rules with such consequences may be delivered by one individual without the approval first of the other 649 democratically-elected individuals”. So ner.

The Court of Appeal considered other matters, but, in order to keep the promise on minimal background information (at over 1300 words already), this author will not. Except one.

The Court of Appeal, in so?criticising?the last Labour government and, in all but one case, overturning the decision of the Home Office, has overlooked one small, tiny, insignificant fact. Chaos in the foreign graduate immigration system will now ensue. So many applications have been lodged and refused – and many of the refusals have potentially now been ruled “unlawful”.

The floodgates have been opened for those who were unsuccessful to appeal the decision, or spend their non-working time to find similar such non-effective rules to allow them to have their application approved as well. This at a time when the economy is unstable, and hordes of British graduates are struggling to find work (again, no apologies, this time for linking to an article you can only read if you pay the subscription fee. It’s ?2 a week! Less than sponsoring a child in a war-torn country!). It’s every graduate for himself (or herself), and now it looks as though the competition could be about to increase dramatically.

And guess which party is left to pick up the pieces? Yup, you guessed it. One powerful parting shot by a government that, really, should have lost its right to govern when it lost its mandate in 2007.

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* Those readers with access to legal databases may find the case by using either of its citations: [2010] EWCA Civ 719 or [2010] All ER (D) 196 (Jun); those who do not have such access can instead read the full judgement for free on Bailii.

Remember to keep checking back on?AlanWCollins for legal news and analysis from Medway and England, from the perspective of a law?school undergraduate.

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