Miah v Secretary of State for the Home Department

Under the pre-2008 work permit system, the Immigration Rules could lawfully require an applicant for indefinite leave to remain to have held a valid work permit. That was a factual condition. The detailed criteria used to issue or maintain permits did not themselves have to be set out in the Rules where the Rules laid before Parliament had authorised that system. The approach in [2012] UKSC 33, requiring determinative criteria to appear in the Rules, concerned the materially different points-based system. It did not invalidate the earlier scheme. A challenge making the work permit scheme unlawful would in any event remove the foundation of the claimed entitlement to indefinite leave.

This was the second part of an appeal by a work permit holder, his wife and child. The appellant had entered as a work permit holder and later sought further leave and indefinite leave to remain under paragraphs 128 and 134 of the Immigration Rules. The First-tier Tribunal dismissed the appeal, and the Upper Tribunal dismissed it because the appellant had not held a valid work permit throughout the relevant period.

The Court of Appeal had dismissed the separate near-miss argument in [2012] EWCA Civ 261 and adjourned this issue pending R (Alvi) v Secretary of State, reported at [2012] UKSC 33. The central issue was whether the work permit criteria in administrative guidance were rules requiring parliamentary laying under section 3(2) of the Immigration Act 1971, and whether any invalidity meant that the work permit requirement could be ignored.

Disposition

The Court of Appeal unanimously dismissed the appeal. Pill LJ gave the principal judgment, with which Etherton and Lewison LJJ agreed.

1. Statutory scheme. Sections 1(4), 3(1) and 3(2) of the Immigration Act 1971 formed the statutory framework for regulating the entry and stay of persons without the right of abode. Section 33 defined a work permit by reference to eligibility under the immigration rules. The Act itself prescribed neither the detailed criteria for issuing work permits nor the issuing authority.
2. Parliamentary authorisation. The Rules laid before Parliament from 1972 onwards contemplated that the Department of Employment would issue work permits, approve employment and decide whether permits should continue to be effective. Parliament had therefore approved a scheme under which the relevant Department could determine and alter the criteria for work permits. The criteria were not mere advice, but they did not have to be reproduced in the Immigration Rules.
3. Distinction from Alvi. R (Alvi) v Secretary of State concerned the points-based system, in which certainty and detailed criteria were integral to determining entitlement to leave. The court treated that system as fundamentally different from the earlier work permit scheme. The approach in R (New London College Ltd) v Secretary of State, reported at [2012] EWCA Civ 51, was apt: the substantive immigration requirement could be distinguished from the anterior criteria governing the grant of a separate permit.
4. Application. Paragraph 128(i) validly required the applicant to hold a valid Home Office work permit, and paragraph 134(ii) required the paragraph 128 requirements to have been met throughout the relevant leave. The appellant accepted that he had not held a valid permit from 26 July 2010. He therefore failed the applicable requirement. In any event, if the scheme were unlawful, striking the permit references out of the Rules would remove rather than establish the basis for indefinite leave to remain. The appeal was dismissed.

• Court of Appeal (Civil Division): The second part of the appeal was dismissed. The court had earlier dismissed the separate near-miss argument in [2012] EWCA Civ 261; [2012] 3 WLR 492, and had adjourned the present issue pending [2012] UKSC 33.
• Upper Tribunal (Immigration and Asylum Chamber): The appeal was dismissed because the appellant did not satisfy paragraph 128(i), read with paragraph 134(ii), as he had not held a valid work permit for the requisite period. No citation is stated in the judgment.
• First-tier Tribunal (Immigration and Asylum Chamber): The appeal was dismissed insofar as it relied on paragraph 134 and article 8 rights. No citation is stated in the judgment.