House of Lords
Lord Henley (Conservative)
Today the Supreme Court gave judgment in the cases of R (on the application of Munir and another) (Appellants) v Secretary of State for the Home Department (Respondent) and R (on the application of Alvi) (Respondent) v Secretary of State for the Home Department (Appellant).
In the case of Munir the Supreme Court confirmed that the Secretary of State has discretion to grant leave outside the rules and held that the source of this discretion is the Immigration Act 1971 and not the royal prerogative.
In the case of Alvi the Supreme Court held that "Any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of Section 3(2)". A "rule" that must be laid before Parliament by way of the procedure under Section 3(2) of the Immigration Act 1971. This judgment goes further than recent caselaw in the Court of Appeal, which held that there was a spectrum of "substantive requirements affecting entitlements" which had to be in the rules and "means of proving eligibility", which did not. The Supreme Court noted that the case law had produced uncertainty and litigation and that a greater degree of certainty is required.
The Supreme Court has drawn the line in a way which provides a clear and workable framework for the future but some requirements in the current Immigration Rules are not consistent with this judgment. In particular, the visitor, points-based system and family rules impose some requirements on applicants by way of guidance which fall foul of the Supreme Court's judgment. The Government will therefore lay a statement of changes on
We recognise the complexity of the system and we will therefore undertake a more substantial review of the rules and consider how they can be simplified. The Migration Advisory Committee is currently reviewing the Codes of Practice which this judgment requires are included in the rules and we expect a shorter, updated version to be available for inclusion in due course.
The immediate changes to the rules will mean that for applicants under the visitor, PBS and family route the position has not changed. They are required to meet the requirements of the rules and provide the specified evidence that they meet those requirements. The evidence will now be specified in the rules rather than in guidance.
The Government are also making some minor changes to improve the drafting and transparency of the Rule and some technical corrections to the rules.
Applications already submitted will be considered under the new rules.
Guidance on decided cases, where an applicant has been refused on the basis of failure to meet a requirement that they believe should have been in the rules but was not, will be issued soon.