Joint Council for the Welfare of Immigrants, R (on the application of) v Secretary of State for the Home Department

Immigration Rules cannot lawfully incorporate substantive limits by reference to guidance or a website which the Secretary of State may later change without fresh Parliamentary scrutiny. The rules must be sufficiently certain, and material affecting applicants’ status or entitlement must be available for the statutory scrutiny required by section 3(2) of the Immigration Act 1971.

Quantitative limits on admission under immigration routes, and limits on certificates of sponsorship, are substantive matters at the highest end of the Parliamentary-scrutiny spectrum. A stated objective or methodology does not itself specify a lawful limit. Where no lawful limits were specified, the interim limits were unlawful. The alternative consultation and irrationality challenges were rejected.

Two judicial review claims challenged interim limits introduced for Tier 1 (General) and Tier 2 (General) of the points-based immigration system. The Joint Council for the Welfare of Immigrants challenged both limits. The English Community Care Association challenged the Tier 2 limit, together with the absence of consultation and the policy for exceptional consideration.

The limits were introduced through changes to the Immigration Rules, with their details left to the UK Border Agency website and points-based system guidance. The central issue was whether the Secretary of State could impose or vary those limits through extrinsic material without laying the substantive limits before Parliament under section 3(2) of the Immigration Act 1971.

1. Ground 1 allowed. The Divisional Court held that the Secretary of State intended HC 59 and HC 96 to permit her to determine and later alter the Tier 1 and Tier 2 limits through the UK Border Agency website and points-based system guidance.
2. That approach was unlawful under Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719. Rules having the force of law must be certain. Substantive criteria affecting status or entitlement cannot be placed beyond Parliamentary scrutiny by reference to material which may later be changed without a fresh statement of the Rules.
3. Section 3(2) of the Immigration Act 1971 requires changes to the Immigration Rules to be laid before Parliament so that either House has the statutory opportunity to disapprove them. General ministerial accountability does not replace that procedure. The Secretary of State could not evade it by publishing the operative limits in guidance or online.
4. The court recognised a spectrum. Minor administrative changes may not require Parliamentary scrutiny, whereas quantitative limits on admission and certificates of sponsorship are substantive and lie at the highest end of that spectrum. The Tier 1 website initially announced a limit but did not state its amount. The Tier 2 guidance stated only an aim of reducing numbers and described an unspecified reduction. It therefore specified neither the overall limit nor the limits applied to individual sponsors.
5. Accordingly, no lawful interim limit had been published or specified for either Tier 1 or Tier 2. The court would have rejected the consultation and irrationality grounds. There was no sufficiently specific promise or established practice giving rise to a consultation duty, and the exceptional-consideration arrangements were not shown to be Wednesbury irrational. JCWI obtained its costs; there was no order as to costs between ECCA and the Secretary of State. A certificate for a possible leapfrog appeal was granted, and permission to appeal to the Court of Appeal was also granted.

First-instance judicial review decision. The judgment records no earlier decision in the same proceedings.