Graduates seeking Tier 1 migrant status challenged the Home Secretary's use of policy guidance to impose a three-month bank balance requirement not contained in immigration rules laid before Parliament. The Court of Appeal held the executive cannot lawfully supplement parliamentary-scrutinised immigration rules through changeable policy guidance, as this circumvents constitutional requirements for parliamentary oversight.
Background
The applicants were graduates of approved UK tertiary institutions who sought leave to remain and work under the Tier 1 (Post-Study Work) migrant route. Under the points-based immigration system introduced by HC 321 and amended by HC 607, applicants were required to score 10 points under Appendix C by demonstrating they held £800 in personal savings and providing ‘specified documents’. Rule 245AA defined ‘specified documents’ as those specified by the Secretary of State in the Points Based System Policy Guidance. That policy guidance required applicants to demonstrate that the £800 had been held continuously in their bank accounts for at least three months prior to application. All applicants except Ms Malekia could show they had £800 at the date of application, but most could not demonstrate the three-month continuity requirement derived solely from the policy guidance.
The Issue(s)
The central constitutional question was whether the immigration rules, which must be laid before Parliament under s.3(2) of the Immigration Act 1971, can lawfully incorporate substantive criteria from external policy guidance that has not itself been laid before Parliament, is not a rule of law but departmental policy, and is capable of alteration after the rules have been laid. Subsidiary questions addressed the date at which compliance should be assessed, whether incorporated policy criteria operate as rules or policies, and the applicability of ECHR Article 8.
The Court’s Reasoning
Constitutional Status of Immigration Rules
Sedley LJ undertook a detailed historical and constitutional analysis of the immigration rules, tracing their development from the Aliens Act 1905 through to the Immigration Act 1971. He noted the unique hybrid nature of the rules:
In my judgment the time has come to recognise that, by a combination of legislative recognition and executive practice, the rules made by Home Secretaries for regulating immigration have ceased to be policy and have acquired a status akin to that of law.
The court observed that the rules, while not subordinate legislation, had acquired quasi-legal status through s.84(1) of the Nationality, Immigration and Asylum Act 2002, which permits appeals on the ground that a decision is ‘not in accordance with immigration rules’. Sedley LJ further noted:
the statutory recognition of rules which are to have the character and, on appeal, the force of law requires such rules to be certain.
The Impermissibility of Incorporation by Reference from Changeable Policy
While acknowledging that incorporation by reference from extant, ascertainable documents is permissible (following R v Secretary of State for Social Services, ex p Camden LBC [1987] 1 WLR 819), Sedley LJ held that the present case was fundamentally different. The three-month requirement was not merely evidential but substantive, and critically, the policy guidance could be changed at any time without parliamentary scrutiny:
It means that a discrete element of the rules is placed beyond Parliament’s scrutiny and left to the unfettered judgment of the rule-maker.
The court rejected the Secretary of State’s argument that the rules were entirely a matter for the Home Secretary, with s.3(2) merely requiring them to be brought to Parliament’s attention. Sedley LJ invoked the Case of Proclamations (1611), emphasising the centuries-old constitutional principle that the executive cannot make law without parliamentary authority:
the law, faced with it, cannot simply abandon a constitutional principle which for four centuries has stood as a pillar of the separation of powers in what is today a democracy under the rule of law.
Ms Giovannetti, counsel for the Home Secretary, candidly accepted that if her argument succeeded, the Home Secretary could lawfully lay before Parliament a rule simply stating that graduates may remain in accordance with whatever policy the Home Secretary might adopt from time to time. The court found this unacceptable.
Date of Assessment
If (contrary to the court’s primary conclusion) the three-month requirement were valid, compliance would fall to be assessed at the date of application rather than appeal, since the rule as framed required proof to be submitted to the Home Office at the application stage.
Policy or Rule?
The court accepted that a policy criterion incorporated into the rules would acquire the character of a rule by osmosis, which Sedley LJ considered a further reason against permitting such incorporation.
ECHR Article 8
The court held that Article 8 was not excluded from Tier 1 claims. Since the immigration rules are not made under primary legislation and do not fall within the s.6(2) Human Rights Act 1998 exception, there was no obstacle to requiring the Secretary of State to respect Convention rights when applying them:
in exercising her powers, whether within or outside the rules of practice for the time being in force, the Home Secretary must have regard and give effect to applicants’ Convention rights.
Sedley LJ emphasised the need for proportionality, noting:
If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route. So long as the rules are what the Immigration Act 1971 says they are, they must in my judgment be operated in conformity with s.6 of the Human Rights Act.
Practical Significance
This decision is of considerable constitutional importance. It establishes that the executive cannot use policy guidance to supplement immigration rules with substantive criteria that have not been subjected to parliamentary scrutiny, particularly where the policy guidance is capable of being changed without further scrutiny. It affirms the quasi-legal status of immigration rules while insisting on the constitutional safeguard of parliamentary oversight. The judgment also confirms that Article 8 ECHR applies to Tier 1 migrant decisions and cannot be excluded merely because the rules do not expressly incorporate it. The decision serves as a significant check on executive power in the immigration context, requiring that any criteria with legal force be contained within the rules laid before Parliament.
Verdict: The Home Secretary’s appeal in Ms Pankina’s case was dismissed; the AIT’s decision allowing her appeal was upheld. The appeals of all remaining appellants who demonstrated £800 at the date of application were allowed. Ms Malekia’s appeal was dismissed, as she had never held the requisite £800 at any relevant time and her Article 8 claim was not before the court and lacked any prospect of success.
Source: Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719
