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”.
The Scrutiny Committee notes: “The Supreme Court was concerned about inappropriate sub-delegation of powers given to Ministers under the Immigration Act 1971.” It adds: “In consequence the Home Secretary has laid all the previous guidance which set out the criteria such as which documents, English tests and occupations are accepted under the Points Based System, before the House under section 3(2) of the Immigration Act 1971 to give it the full status of Rules, subject to the negative resolution procedure in Parliament … In the light of the judgment we would have expected the Home Office to have made some distinction between what needs to be in the Rules and what may legitimately remain in guidance, rather than import all the guidance material on a wholesale basis.”
‘In light of the Committee’s previous Reports and the Supreme Court judgment, the House may therefore wish to seek urgent clarification from the Minister about how the Home Secretary plans to revise the legislation to put its application beyond question’ – Scrutiny Committee
One assumes that May was unable to do this separation exercise because of her need to act before the recess. The Scrutiny Committee notes: “We are told that the material in Cm 8423 [the 290-page document] is unchanged from the previously published guidance or lists that were external to the Immigration Rules but due to the volume of the material, this Committee has not been able to verify that.”
The Scrutiny Committee also says that the Home Secretary should have sorted out the issue of what constitutes guidance and what rules (hence needing legislative backing) years ago: “The Committee is also surprised that the Home Office has not acted before this, to address the distinction between Rules and guidance in a planned and orderly fashion. Almost exactly two years ago, Statement of Changes in Immigration Rules (HC 96 of 2010) was laid on an urgent basis, following two court judgments concerning the extent to which requirements under the Points Based System should be set out in the Immigration Rules rather than in UK Border Agency guidance.”
The points-based system was at the heart of the case of Hussain Zulfiqar Alvi, a physiotherapist’s assistant whose application to remain in Britain was rejected because his level of skill and salary did not meet the published criteria.
The committee says the new document brings the rules up to 778 pages and recommends simplification. It concludes: “Until such matters are resolved we must inevitably conclude that the current Rules may imperfectly achieve their policy objective. In light of the Committee’s previous Reports and the Supreme Court judgment, the House may therefore wish to seek urgent clarification from the Minister about how the Home Secretary plans to revise the legislation to put its application beyond question.”
Note: This is the second critical report by the committee this month on May’s procedure for getting parliamentary sanction for immigration rules. Earlier she staged a debate in the House of Commons in an attempt to give democratic validity to her challenge to judges’ interpretation of Article 8 of the European Convention on Human Rights regarding immigration and deportation. (See previous posting here)
Thinking legally 