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

A substantive eligibility condition for leave to remain cannot be supplied by external immigration guidance or a list which has not undergone the parliamentary procedure required by section 3(2) of the Immigration Act 1971. This is especially so where the external material may be altered unilaterally.

Transitional arrangements in the points-based system do not displace the general sponsorship requirements. An applicant relying on them must still meet paragraphs 81 and 82 of Appendix A to the Immigration Rules. However, the Secretary of State could not rely on an unincorporated National Vocational Qualification level 3 threshold in the List of Skilled Occupations to invalidate the applicant’s certificate of sponsorship.

The appellant, a Pakistani national, had previously been granted leave as a work-permit holder while employed as a physiotherapy assistant. He applied for further leave as a Tier 2 (General) migrant under the points-based system.

The Secretary of State refused the application on the basis that the job was below National Vocational Qualification level 3 under the UK Border Agency’s List of Skilled Occupations. The appellant sought judicial review. The Administrative Court dismissed the claim, holding that the List was not part of the Immigration Rules and did not require parliamentary approval.

On appeal, the issues were whether the transitional arrangements in paragraph 83 of Appendix A exempted the appellant from paragraph 82, and whether the Secretary of State could lawfully rely on the List to impose the level 3 requirement.

1. Appeal allowed unanimously. Jackson LJ gave the judgment, with which Tomlinson LJ and the President of the Queen’s Bench Division agreed. The Secretary of State’s decisions of 18 June 2009 and 9 February 2010 were quashed.

2. On the proper construction of Appendix A to the Immigration Rules, paragraphs 81 and 82 applied to every applicant seeking sponsorship points under Table 11. Paragraph 83 concerned only the first, transitional, category in that table. It imposed additional requirements for that category; it did not exempt an applicant from paragraphs 81 or 82. The first ground of appeal therefore failed.

3. Following Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, a substantive condition regulating eligibility for leave could not be imposed through material outside the Rules which had not been laid before Parliament under section 3(2) of the Immigration Act 1971. The governing criterion in the List of Skilled Occupations—that qualifying jobs in the relevant section were at or above NVQ or SVQ level 3—was such a substantive condition.

4. The court did not need to decide whether every individual listing of a particular occupation was itself substantive. The decisive point was that the level 3 threshold was not stated in paragraph 82(a)(i) of Appendix A, although it could determine whether sponsorship points were awarded. The List had been published after the Rules were laid and could be amended by the Secretary of State.

5. Earlier work-permit guidance did not remedy the defect. It had not possessed the character of legal rules, and its existence did not remove the obligation to state the threshold in the new points-based Immigration Rules. The Secretary of State could not consequently treat the appellant’s certificate of sponsorship as invalid because the job of physiotherapy assistant was below level 3.

• Court of Appeal (Civil Division): Allowed the appeal and quashed the Secretary of State’s refusal decisions: [2011] EWCA Civ 681.

• Administrative Court: Lord Carlile of Berriew QC, sitting as a deputy High Court judge, dismissed the judicial-review claim on 25 October 2010.