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

For the purposes of section 3(2) of the Immigration Act 1971, an immigration rule includes every requirement which an applicant must satisfy as a condition of obtaining leave, and every criterion which is or may be determinative of the application. Such requirements, and changes to them, must be laid before Parliament. Mandatory criteria contained only in an external code cannot lawfully determine an application merely because the Immigration Rules refer to that code. Describing a requirement as guidance does not alter its character. Advice or procedural information which does not condition the grant of leave may remain outside the rules.

The respondent, a Pakistani national employed as a physiotherapy assistant, applied for further leave to remain as a Tier 2 (General) Migrant. The Secretary of State refused the application because an occupation code published outside the Immigration Rules classified his job as below NVQ or SVQ level 3. The code had not been laid before Parliament under section 3(2) of the Immigration Act 1971.

The Administrative Court dismissed his judicial review claim: [2010] EWHC 2666 (Admin). The Court of Appeal allowed his appeal, quashed the refusal and held that the governing skill criterion had to be contained in the Immigration Rules: [2011] EWCA Civ 681. The Secretary of State appealed. The appeal was heard with R (Munir and another) v Secretary of State for the Home Department [2012] UKSC 32. The central issue was which requirements constitute rules that must be laid before Parliament.

1. Disposition. The Supreme Court unanimously dismissed the Secretary of State’s appeal. The Court of Appeal was right to quash the refusal of leave.

2. The statutory test. The common ground of the court, expressed principally by Lord Hope and Lord Dyson and accepted by the other Justices, was that a rule under section 3(2) of the Immigration Act 1971 includes any requirement which an applicant must satisfy as a condition of obtaining leave. It also includes any criterion which is or may be determinative of an application. The distinction previously drawn between substantive requirements and the evidential means of satisfying them did not provide a sufficiently certain or principled test.

3. Parliamentary scrutiny. All requirements of that character, and changes to them, must be laid before Parliament. Incorporation of material from an existing external document is not inherently objectionable. It becomes objectionable where it enables the Secretary of State to introduce or alter determinative criteria without complying with section 3(2). A label such as “guidance” is not conclusive; the court must examine the material’s legal and practical effect.

4. Application. The skill threshold of NVQ or SVQ level 3 and the classification of a physiotherapy assistant as falling below that threshold determined whether the respondent obtained the necessary points. They were therefore rules. Because neither had been laid before Parliament, the Secretary of State could not rely on them to refuse the application. Lord Hope and Lord Dyson also agreed that externally stated minimum salary requirements were rules of the same character.

5. Procedural guidance. Instructions or advice which merely assist sponsors, applicants or caseworkers, and which need not be satisfied as a condition of obtaining leave, may remain outside the rules. The mandatory nature and consequence of a provision, rather than its title or location, determine its classification.

6. Resident labour market test—obiter. Lord Dyson, Lord Clarke and Lord Wilson considered that mandatory requirements specifying where a vacancy must be advertised were also rules, because failure to comply would lead to refusal. Lord Hope was inclined to regard the specified advertising locations as guidance, while Lord Walker expressed no opinion. The majority view on this point was expressly acknowledged not to form part of the basis of the decision.

7. Prerogative powers. Lord Hope, with whose observations Lord Walker agreed, further reasoned that immigration control powers are now statutory and that section 3(2) cannot be avoided or qualified by reliance on the prerogative. This issue was not directly determinative of the appeal.

1. United Kingdom Supreme Court: The Secretary of State’s appeal was dismissed unanimously: [2012] UKSC 33.

2. Court of Appeal: The respondent’s appeal was allowed and the Secretary of State’s refusal decision was quashed: [2011] EWCA Civ 681.

3. Administrative Court: The respondent’s claim for judicial review was dismissed: [2010] EWHC 2666 (Admin).