R (Munir) v Secretary of State for the Home Department

The central legal question was whether published concessionary policies and statements about the grant or withdrawal of concessions outside the Immigration Rules fall within the phrase "the practice to be followed" in section 3(2) of the Immigration Act 1971 and therefore must be laid before Parliament. The Supreme Court held that the 1971 Act is the statutory source of the power and duty to lay down immigration rules and that whether a concessionary statement amounts to an immigration rule under section 3(2) depends on its degree of prescriptiveness.

If a concessionary statement prescribes that the rule will always be relaxed in specified circumstances it may amount to a rule requiring laying under section 3(2). By contrast, a flexible policy which identifies factors that may be relevant and emphasises that each case must be decided on its merits does not amount to a statement of practice within section 3(2). Applying that test, DP5/96 was an amply flexible concessionary policy and not an immigration rule, so it did not have to be laid before Parliament. For these reasons both appeals were dismissed.

The appellants challenged decisions refusing indefinite leave to remain and argued that the Secretary of State’s concessionary policy DP5/96 (a policy about deportation in cases where there are children with long residence) and its withdrawal amounted to a change in the immigration rules within the meaning of section 3(2) of the Immigration Act 1971 and so were of no effect because they had not been laid before Parliament. The proceedings included an order quashing one refusal and permission to seek judicial review in the other case; the Secretary of State appealed to the Court of Appeal and then to the Supreme Court. The Court of Appeal allowed the Secretary of State’s appeal ([2011] EWCA Civ 814) and the appellants appealed to the Supreme Court on the point whether DP5/96 was a rule under section 3(2).

Nature of the claim: challenges by judicial review to refusals of indefinite leave to remain and a legal challenge that the Secretary of State’s concessionary policy and its withdrawal were changes in the immigration rules which should have been laid before Parliament under section 3(2).

Issues framed by the court: (i) the source of the power to make and lay down immigration rules and whether that power is statutory or prerogative; (ii) whether concessionary policies made outside the Immigration Rules can amount to a statement of practice within section 3(2); and (iii) whether DP5/96 in form and effect was such a statement.

Reasoning: the court reasoned that the 1971 Act is the statutory source of the power and duty to make immigration rules and to control leave to enter or remain. Section 33(5) preserved only a narrow prerogative relating to enemy aliens; it did not support the proposition that rules promulgated under the Act are exercises of the prerogative. The court distinguished between (a) the exercise of a discretion given by an immigration rule and (b) concessionary policies that identify circumstances where rules may be relaxed. A concessionary statement that prescribes that the applicable rule will always be relaxed in specified circumstances is likely to be a rule within section 3(2). By contrast, a policy that states that each case must be considered on its merits and that certain factors may be relevant (i.e. is amply flexible) does not amount to an immigration rule for the purposes of section 3(2). Applying that test, DP5/96 was found to be flexible and thus not required to be laid before Parliament.

The court observed that less flexible concessionary policies are more likely to constitute immigration rules and therefore fall within section 3(2), but it concluded that DP5/96 did not fall into that category. The court therefore dismissed the appeals.

Appeals dismissed. The Supreme Court held that the Immigration Act 1971 is the statutory source of the power and duty to lay down immigration rules; concessionary policies will amount to a statement of practice under section 3(2) if they are sufficiently prescriptive so as to effectively determine practice, but a flexible concessionary policy that requires each case to be considered on its merits (such as DP5/96) is not a rule under section 3(2) and need not be laid before Parliament. Applying that test, DP5/96 was not a rule and its withdrawal did not require laying under section 3(2).

High Court: Judicial review allowed in respect of Mr Rahman by Judge Bidder QC (quashing refusal and ordering reconsideration); permission refused in Mr Munir by Mr David Holgate QC (Deputy Judge) (as described in the judgment). Court of Appeal: Secretary of State's appeal allowed and Mr Munir's appeal dismissed, [2011] EWCA Civ 814. Supreme Court: appeals dismissed, [2012] UKSC 32.