R (on the application of Munir and another) v Secretary of State for the Home Department

The power and duty to make immigration rules, and the power to grant leave outside those rules, derive from the Immigration Act 1971. They are statutory powers, not exercises of the prerogative.

A concessionary policy must be laid before Parliament under section 3(2) if it amounts to a rule as to the practice to be followed. A policy which invariably relaxes a rule in specified circumstances is likely to qualify. A flexible policy which identifies relevant conditions but preserves an individual assessment of all the circumstances does not. The greater the policy’s flexibility, the less likely it is to be an immigration rule.

The Secretary of State refused applications by Mr Rahman and Mr Munir for indefinite leave to remain. Both relied on DP5/96, a concessionary policy concerning enforcement against parents of children with long residence. The policy had been withdrawn in 2008 without its withdrawal being laid before Parliament.

The High Court allowed Mr Rahman’s judicial review claim but refused Mr Munir permission to apply. The Court of Appeal, in [2011] EWCA Civ 814, allowed the Secretary of State’s appeal and dismissed Mr Munir’s appeal. The families later received discretionary leave, but the appeals continued to resolve the point of principle.

The central issue was whether DP5/96, its revision or its withdrawal was a statement as to the practice to be followed which section 3(2) of the Immigration Act 1971 required the Secretary of State to lay before Parliament.

Both appeals dismissed unanimously. Lord Dyson gave the judgment, with which Lord Hope, Lord Walker, Lord Clarke and Lord Wilson agreed.

1. The Immigration Act 1971 is the source of the Secretary of State’s power and duty to make immigration rules. The Act was intended to provide a statutory code for immigration control, subject to the limited preservation by section 33(5) of prerogative powers concerning aliens. Sections 1(4) and 3(2) implicitly require rules to be made and laid before Parliament. Otherwise Parliament’s intended control over immigration practice would be frustrated. The making of immigration rules and the granting or variation of leave are therefore exercises of statutory power.

2. The same Act, particularly sections 3, 3A, 3B and 3C, confers a broad power to grant leave outside the immigration rules. Earlier authority treating such decisions concerning Commonwealth citizens as exercises of residual prerogative power was incorrect. The contrary observations in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230 were unnecessary to that decision and were not accepted. Its ratio concerned the temporal construction of immigration rules, not the source of the power.

3. Whether a concessionary policy is itself an immigration rule depends on its degree of prescription. A policy stating that a rule will always be relaxed in specified circumstances may itself prescribe the practice to be followed and therefore require laying under section 3(2). A policy which merely states when relaxation may be considered, while preserving assessment of every case on all its circumstances, falls outside section 3(2). Less flexibility makes classification as an immigration rule more likely.

4. DP5/96 was amply flexible. It required individual consideration on the merits and identified factors which might, rather than would, be relevant. It did not prescribe when overstayers would be permitted to remain. DP5/96, its 1999 revision and its 2008 withdrawal therefore did not have to be laid before Parliament. The Court rejected the Court of Appeal’s tentative contrary view but upheld its orders.

1. United Kingdom Supreme Court: Both appeals dismissed unanimously. The Court upheld the Court of Appeal’s orders, although it rejected the tentative view that DP5/96 was arguably an immigration rule.
2. Court of Appeal: In [2011] EWCA Civ 814, allowed the Secretary of State’s appeal in Mr Rahman’s case and dismissed Mr Munir’s appeal. It held that DP5/96 had been lawfully withdrawn and that the transitional arrangements were lawful.
3. High Court: Judge Bidder QC allowed Mr Rahman’s judicial review claim, quashed the refusal and ordered reconsideration under DP5/96. Mr David Holgate QC, sitting as a Deputy High Court Judge, refused Mr Munir permission to apply for judicial review.