The Supreme Court considered whether the Secretary of State's concessionary immigration policy DP5/96, granting discretion outside the immigration rules regarding families with children with long residence, constituted a 'rule' requiring laying before Parliament under section 3(2) of the Immigration Act 1971. The Court held it did not, dismissing both appeals.
Background
The appellants, Mr Rahman (a Bangladeshi citizen) and Mr Munir (a Pakistani citizen), entered the United Kingdom with their families on visitor visas which subsequently expired. Both families remained unlawfully and eventually applied for indefinite leave to remain. Their applications were refused under the immigration rules and on exceptional grounds outside the rules. Both challenged the refusals, arguing principally that the Secretary of State should have applied Deportation Policy 5/96 (‘DP5/96’), a concessionary policy introduced in March 1996, which set out criteria for exercising discretion against enforcement action where families had children with long residence in the United Kingdom. DP5/96 was withdrawn on 9 December 2008.
Mr Rahman’s children had accumulated seven years’ continuous residence prior to the withdrawal. Mr Munir’s children had not. At first instance, Judge Bidder QC allowed Mr Rahman’s judicial review claim, holding the withdrawal irrational and unfair. The Court of Appeal reversed that decision, holding the withdrawal lawful. Both appellants then raised a new argument before the Court of Appeal: that the withdrawal of DP5/96 amounted to a change in the immigration rules under section 3(2) of the Immigration Act 1971 (‘the 1971 Act’) and was unlawful because it had not been laid before Parliament.
The Issue(s)
Primary Issue
Whether statements by the Secretary of State of concessionary policies outside the immigration rules, and their subsequent withdrawal, constituted statements of ‘the practice to be followed’ within the meaning of section 3(2) of the 1971 Act, requiring them to be laid before Parliament.
Secondary Issue
Whether the power to make immigration rules and to grant leave to enter or remain outside those rules derives from the Royal prerogative or from the 1971 Act itself.
The Parties’ Arguments
Mr Malik, on behalf of the appellants, submitted that DP5/96 was a statement of ‘the practice to be followed in the administration of this Act for regulating the stay in the United Kingdom of persons required by this Act to have leave to enter’ within section 3(2). He argued that any concessionary policy statement more favourable to migrants than the rules was, by definition, a statement of a change in the rules which must be laid before Parliament.
Mr Swift QC, for the Secretary of State, submitted that everything done by the Secretary of State for the purpose of regulating immigration was done in exercise of the prerogative power. He argued that (i) the making and laying of immigration rules was an exercise of the prerogative and (ii) the publication of a concessionary policy was likewise an exercise of the prerogative and not a statement within the meaning of section 3(2).
The Court’s Reasoning
Source of the Power to Make Immigration Rules
Lord Dyson, delivering the sole substantive judgment with which all other Justices agreed, held that the power to make immigration rules under the 1971 Act derives from the Act itself and is not an exercise of the prerogative. The Court examined the statutory history, noting that the prerogative power to control immigration never applied to Commonwealth citizens, and that the 1971 Act was intended to replace earlier immigration laws with a single statutory code.
Lord Dyson placed particular emphasis on section 33(5) of the 1971 Act, which preserves the prerogative only ‘in relation to aliens’. He drew two inferences from this saving provision:
First, Parliament must have considered that the prerogative power to regulate immigration control did not apply to those who owed their allegiance to the Crown, that is British and Commonwealth citizens, and only applied to aliens. Otherwise, Parliament would surely have made some provision as to how, if at all, the prerogative power was to be exercised in relation to Commonwealth citizens. Secondly, Parliament must have intended that, subject to the saving in section 33(5), all powers of immigration control were to be exercised pursuant to the statute.
This analysis was supported by the Parliamentary debates on the 1971 Act, where the Government confirmed that the prerogative was limited to controlling enemy aliens in wartime.
Odelola Distinguished
Lord Dyson addressed the House of Lords decision in Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230, where Lord Brown had stated that immigration rules indicate how the Secretary of State proposes to exercise the prerogative power. Lord Dyson disagreed:
I cannot agree with Lord Brown that the immigration rules indicate how the Secretary of State proposes to exercise the prerogative power of immigration control. Lord Brown referred in para 35 to section 33(5) of the 1971 Act. It may be that he did not appreciate the significance of the reference there to the exercise of the prerogative ‘in relation to aliens’.
Lord Dyson held that the views expressed in Odelola on whether the rules were ‘subordinate legislation’ were obiter, and the ratio of that case was simply that, as a matter of construction, immigration rules apply when they say they take effect.
Concessionary Policies and Section 3(2)
Having rejected the submission that concessionary policies are exercises of prerogative power, Lord Dyson held that the 1971 Act itself is the source of the Secretary of State’s power to grant leave outside the immigration rules, pursuant to the wide discretion conferred by sections 3, 3A, 3B and 3C. He then addressed the critical question of whether DP5/96 fell within section 3(2):
If a concessionary policy statement says that the applicable rule will always be relaxed in specified circumstances, it may be difficult to avoid the conclusion that the statement is itself a rule ‘as to the practice to be followed’ within the meaning of section 3(2) which should be laid before Parliament. But if the statement says that the rule may be relaxed if certain conditions are satisfied, but that whether it will be relaxed depends on all the circumstances of the case, then in my view it does not fall within the scope of section 3(2). Such a statement does no more than say when a rule or statutory provision may be relaxed.
Applying this distinction, Lord Dyson held that DP5/96 was not a statement of practice within section 3(2). It made clear that each case had to be considered on its merits and that certain factors might (not would) be of particular relevance. It was not a statement as to the circumstances in which overstayers would be allowed to stay. The Court articulated the governing principle:
The less the flexibility inherent in the concessionary policy, the more likely it is to be a statement ‘as to the practice to be followed’ within the meaning of section 3(2) and therefore an immigration rule. But DP5/96 was amply flexible and was therefore not an immigration rule and did not have to be laid before Parliament.
Practical Significance
This decision is of considerable constitutional and practical importance in immigration law. It clarifies three key matters:
- Source of power: The power to make immigration rules derives from the Immigration Act 1971 itself, not from the Royal prerogative. This corrects earlier judicial statements to the contrary, including obiter remarks in Odelola.
- Scope of section 3(2): Concessionary policies that preserve genuine discretion and require individual consideration of cases do not constitute immigration rules requiring Parliamentary scrutiny. However, a rigid concessionary policy that mandates a particular outcome in specified circumstances may cross the threshold and become a ‘rule’ requiring laying before Parliament.
- Executive flexibility: The Secretary of State retains broad statutory authority to make, amend and withdraw concessionary policies outside the immigration rules, subject to public law principles, without the requirement to lay such policies before Parliament.
The decision also disapproved of the tentative obiter view of Stanley Burnton LJ in the Court of Appeal that DP5/96 was arguably a rule within section 3(2), while nonetheless arriving at the same outcome on the appeals.
Verdict: Both appeals were dismissed. The Supreme Court held that DP5/96 was not an immigration rule within the meaning of section 3(2) of the Immigration Act 1971 and did not need to be laid before Parliament. Consequently, neither DP5/96 itself, its 1999 revision, nor its 2008 withdrawal were required to be laid before Parliament. The Secretary of State acted lawfully in withdrawing the policy.
Source: R (Munir) v Secretary of State for the Home Department [2012] UKSC 32
