Alvi, R (on the application of) v Secretary of State for the Home Department

Immigration Rules may lawfully refer to detailed administrative guidance, including a substantial and amendable list of skilled occupations. The guidance does not require separate inclusion in the Rules or specific Parliamentary approval unless it materially or substantively changes the effect of the Rules or introduces a substantive eligibility criterion. Transitional arrangements awarding points to qualifying work-permit holders do not remove the requirement that the sponsored employment satisfy the applicable skills criterion. The use of the Tier 2 Codes of Practice and Policy Guidance therefore did not breach the Parliamentary-scrutiny principles in Pankina v Secretary of State for the Home Department, [2010] EWCA Civ 719, or R (English UK Ltd) v Secretary of State for the Home Department, [2010] EWHC 1726 (Admin).

The claimant, a Pakistani national employed as a physiotherapy assistant in the National Health Service, sought judicial review of the refusal of his application for leave to remain as a Tier 2 (General) Migrant. He had previously held a work permit for the same employment and relied on the transitional arrangements in Appendix A to the Immigration Rules.

It was common ground that physiotherapy assistant did not appear on the applicable list of skilled occupations. The claimant argued that the transitional provisions entitled him to 50 sponsorship points without satisfying that list, and that the list was unlawful because it had not been included in the Immigration Rules laid before Parliament. The central issue was whether the Secretary of State could enforce the skills requirement through the Tier 2 Codes of Practice and related guidance.

1. The claim was dismissed. The claimant’s application failed because his occupation did not satisfy the applicable skilled-occupation requirement.
2. The transitional provisions in Appendix A did not operate independently of the sponsorship requirements. They enabled a qualifying work-permit holder to obtain 50 points under the transitional arrangements without meeting other Tier 2 criteria, such as qualifications, prospective earnings and the resident labour-market test. They did not dispense with the skills criterion in paragraph 82(a)(i).
3. The court rejected the submission that every occupation and skill had to be set out in the Immigration Rules themselves. The list of skilled occupations was a large document requiring amendment and addition from time to time. Parliament did not intend that it should be an intrinsic part of the Rules or subject to specific legislative approval whenever its detailed contents changed.
4. The principles in Pankina v Secretary of State for the Home Department, [2010] EWCA Civ 719, and R (English UK Ltd) v Secretary of State for the Home Department, [2010] EWHC 1726 (Admin), did not invalidate the arrangement. Those principles prevent external guidance from making a material or substantive change to the effect of the Immigration Rules or relevant guidance in force when the Rules were promulgated. The Tier 2 Codes of Practice and Policy Guidance did not make such a change.
5. The Secretary of State had therefore acted lawfully in refusing leave. The judicial review application failed.

This was a first-instance judicial review. Permission was granted on 17 March 2010, and the claim proceeded against the Secretary of State’s replacement refusal letter dated 9 February 2010.