A UK Parliamentary committee has issued further criticism of Home Secretary Theresa May’s attempts to get flawed British immigration rules accepted by the courts.
May placed 290 pages of immigration code of practice rules in the House of Lords in an apparent kneejerk reaction to the Alvi case where the rules were struck down by the Supreme Court (reported here).
The court took the view that the Home Office was trying to treat the code as law for the purpose of barring immigration and for deportations even though they had passed through no proper parliamentary procedure. The day after the case, on 19 July, May sought to gain some sort of parliamentary sanction for the code by placing it before the Lords – a few days before their summer recess (the House of Commons was no longer sitting).
The House of Lords Secondary Legislation Scrutiny Committee has questioned this latest move on the grounds that the rules “may imperfectly achieve their policy objective”. Under the 1971 Immigration Act S.3(2) to count as legislation, such rules should lie in both Houses of Parliament for 40 days to allow parliamentarians to object or debate them if they wish – the so-called “negative procedure”.
A UK parliamentary committee has expressed concerns about the procedure used by Home Secretary Theresa May to give enhanced democratic credibility to tougher action on immigration.
Her new Immigration Rules have been presented to Parliament in a constitutionally innovative manner that may have no legal validity. This involved not simply passing the rules through the two Houses of Parliament by the traditional means for secondary legislation but having an additional debate (with no vote) in the House of Commons (but not the House of Lords) to assert the legal power of the Rules against the claims of international human rights law.
The intention behind the Statement of Changes in Immigration Rules (HC 194) was to use the debate “as a vehicle to gain Parliament’s endorsement of its approach to Article 8 of European Convention on Human Rights to assist the courts when deciding appeals on immigration matters”, noted the Secondary Legislation Scrutiny Committee of the House of Lords. (Committee Report 4.3 pdf)
However, the committee implies that the procedure was of dubious validity and constitutionally unlikely to have the desired effect – to force judges to reduce their reliance on Article 8(1) when judging immigration and deportation cases.