Tag Archives: Immigration Rules

Alan Bogg and Virginia Mantouvalou: Illegality, Human Rights and Employment: A Watershed Moment for the United Kingdom Supreme Court?

boggav_mantouvalouUnder what circumstances can the illegal work status of a migrant worker bar a statutory tort claim for race discrimination through the common law doctrine of illegality? Such a question is due to be considered later this month by the United Kingdom Supreme Court in an appeal from the Court of Appeal decision in Allen v Hounga. Ms Hounga arrived in the UK from Nigeria in 2007 to work as a domestic worker for Mr and Mrs Allen. Her age was indeterminate but she may have been as young as fourteen when she entered the arrangement. Despite the promise of schooling, Ms Hounga never had an opportunity to get an education, and it was alleged that she suffered serious physical abuse at the hands of Mrs Allen. Eventually, she was ejected from the house and, having slept rough, Ms Hounga was found wandering in a distressed state in a supermarket car park. According to the Court of Appeal, Ms Hounga’s race discrimination claim was ‘inextricably bound up’ with the illegality in question and so to permit her compensation would be to appear to condone her unlawful conduct. In the eyes of many commentators, Hounga marked a new low for common law reasoning in the sphere of statutory employment rights. This was compounded by the context of legally sanctioned exploitation of a particularly vulnerable migrant worker, whose vulnerability had been constructed by the legal order in the first place, a situation that can also be described as ‘legislative precariousness’.

The narrowest approach to the legal issue would be to consider the Court of Appeal’s holding in Hounga with respect to legal authority. Rimer LJ in the Court of Appeal purported to follow the approach to illegality set out in the earlier case of Hall v Woolston Leisure. In Hall the Court of Appeal had insisted on a strict causation test. In Hounga this had been loosened to encompass situations where the illegality was merely ‘linked’ to the discrimination claim. Perhaps a better approach to formulate the question in the way that Lord Hoffmann did in the House of Lords decision in Gray v Thames Trains: ‘Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant? …or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant?’ If we pose the question in this way on the facts in Hounga, then the gist of the tort – the violation of Ms Hounga’s right not to be discriminated against because of her race – was caused by the tortious act of the defendant. That should be the end of the causation enquiry. And perhaps the Supreme Court might be content to dispose of the case on that narrow basis, ensuring the internal coherence of the common law doctrine of illegality in accordance with the precedents in Hall and Gray. Certainly, there are recent examples of the Employment Appeal Tribunal dealing with the illegality doctrine in a manner that is more sensitive to the various legitimate interests at stake, while reasoning within the four corners of the illegality doctrine.

There is a larger set of perspectives, however, given that Hounga sits at the intersection between labour law, human rights and migration law. Rather than refine the common law doctrine of illegality and ensure its internal coherence, it may be appropriate to consider whether illegality should have any role at all in this regulatory sphere. It might be helpful to consider this from two different vantage points, one that characterizes Hounga as a ‘labour law’ case; the other of which characterizes Hounga as a ‘migration’ case. It might be useful to regard both kinds of approach as based upon an anti-exploitation principle, which would set itself against unfair-advantage taking in the employment context. From a labour law perspective, the unfairness consists in the violation of legal rights that exist for the protection of those engaged in personal work. From a migration law perspective, the unfairness consists in the targeting of an especially vulnerable group within the wider category of personal work relations, viz migrants working illegally. Human rights issues arise in both of these perspectives.

If we take first the ‘labour law’ perspective, there is a respectable argument to be made that there is something special about labour rights, or a subset of labour rights that can be classified as human rights, that means that illegality should be excluded entirely from this regulatory context. At its broadest, it is possible to argue that all labour rights should be insulated from the illegality doctrine. Labour rights, such as the right not to be unfairly dismissed or working time protections, are not simply rights that benefit the individual worker implicated in illegality. These rights are also justified in their contribution to a wider public good, ensuring a culture of respect for workers’ rights in a well-functioning labour market that promotes decent work. Illegality should not be permitted to impede this public good by inculcating an ethic of disregard for employment rights amongst unscrupulous employers. Illegality also adds an extra incentive to employ undocumented migrant workers by ensuring a supply of labour that is cheaper still through the denial of basic employment rights. An intermediate labour law approach might be to focus on those employment rights that are reciprocally bound up with the provision of work, so that denial of the right corresponds to an unjust enrichment for the employer who has already had the benefit of the work. The obvious example here is the provision of back pay or the right to paid annual leave.

The narrowest labour law perspective would focus on a tighter category of fundamental human rights, such as the right not to be discriminated against because of race or sex, the prohibition of forced labour or freedom of association. The fundamentality of these human rights means that any illegality of the claimant should be disregarded. There would be something unconscionable for a legal system to permit the violation of fundamental human rights in circumstances of illegality; it would undermine the “integrity of the legal system” which, after all, is one of the functional concerns of the illegality doctrine itself. In Hall both Peter Gibson L.J. and Mance L.J. identified the sex discrimination claim as vindicating the claimant’s fundamental human right not to be discriminated against on grounds of sex. This fundamental rights dimension was a vital factor in insulating the statutory tort claim from the doctrine of illegality. This labour law perspective, focused on the nature of the legal right, would treat the migration dimension to Hounga as part of the background context, but not especially salient. It might be regarded as an extra attraction of this approach that in avoiding a focus on whether labour was forced or a person was trafficked, it avoids the implicit legitimization of other situations where an employer violates the fundamental human rights of workers (whether or not migrants) behind the protective cloak of illegality.

By contrast, the ‘migration law’ perspective would focus on the distinctive nature of the claimant in Hounga as a member of an especially vulnerable group within the labour market. In respect of their labour rights, undocumented migrant workers are effectively ‘outlaws’. The doctrine of illegality exacerbates their existing vulnerability through the law, and makes them even more prone to exploitation than other migrant workers. This seems difficult to defend even from the perspective of migration policy itself. For just as migration policy is concerned to regulate and restrict migration, it is equally concerned to ameliorate the circumstances of extreme exploitation that can be classified as ‘modern slavery’, which might be thought to characterize the situation of claimants such as Ms Hounga.

In terms of European human rights law, this situation can raise issues under the European Convention on Human Rights (ECHR), which may provide the tools to address workers’ exploitation in certain circumstances. The Convention protects the rights of everyone within the Contracting States’ jurisdiction (article 1 ECHR), without drawing any distinction on the basis of nationality. Article 4 of the ECHR, which is an absolute provision, prohibits slavery, servitude, forced and compulsory labour. The European Court of Human Rights (ECtHR) has previously examined the exploitation of a migrant domestic worker in the case of Siliadin v France, which had similarities with Hounga (but without the element of physical abuse). The ECtHR recognized the applicant’s vulnerability, whose passport had been confiscated, and ruled that she was held in servitude, forced and compulsory labour, which should be criminalized. Even though the focus was on criminalization, the Court did not rule out that other labour protective legislation may be required. In terms of the legal regime that the doctrine of illegality sets up for the undocumented, the case Rantsev v Cyprus and Russia is also important to highlight. In that case, which involved a victim of sex trafficking, the ECtHR held that an immigration regime (that of the ‘artiste visa’ in that case) limited the freedom of Rantseva to such a degree that it violated article 4. The doctrine of illegality may raise similar issues, as it limits the undocumented workers’ freedom to an extreme, leaving them in a legal black hole.

The prohibition of discrimination (article 14 ECHR) taken together with the right to the peaceful enjoyment of one’s possessions (article 1 of Protocol 1 ECHR) may also be at stake in cases of an illegal contract of employment. Should a worker not be awarded her salaries, the Court may view this as discrimination in the enjoyment of her possessions, as salaries have been classified as possessions in the case law. The ECtHR has explored the social rights of a documented migrant in Gaygusuz v Austria, and ruled that for a difference of treatment on the basis of immigration status to be justified, ‘very weighty reasons would have to be put forward before the Court’. The control of immigration may be a legitimate aim, but the means employed to meet the aim may violate the Convention.

The ECtHR has not examined the rights of undocumented workers under the prohibition of discrimination in conjunction with other Convention rights. However, the Inter-American Court of Human Rights addressed the issue in its advisory opinion ‘Juridical Condition and Rights of the Undocumented Migrants’. In this context, the Court referred to the vulnerable status of migrants and emphasised that their human tights should be protected regardless of their legal status. It stated that workers’ rights can only be dependent on the status of someone as a worker, and not on the status of someone as a lawful migrant:

‘Labor rights necessarily arise from the circumstance of being a worker, understood in the broadest sense. A person who is to be engaged, is engaged or has been engaged in a remunerated activity, immediately becomes a worker and, consequently, acquires the rights inherent in that condition […] [T]he migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment.’

This opinion suggests that fundamental labour rights found in legislation cannot be made conditional upon immigration status because this violates the prohibition of discrimination. The Inter-American Court accepted that states have a sovereign power to deny employment to undocumented migrants. However, once they are employed, they should be protected equally to other workers. The list of rights that undocumented workers must enjoy, on this analysis, does not only include the ILO’s fundamental rights at work. It also encompasses fair pay, reasonable working hours, health and safety rules and other fundamental labour rights.

Hounga is possibly the most important employment case yet to be considered by the United Kingdom Supreme Court. We hope that it takes the opportunity to step beyond the formalism of a narrow approach to the illegality point, sensitive to the wider human rights issues. Nothing less than the integrity of the English legal system is at stake.

Alan Bogg is Professor of Labour Law; Fellow and Tutor in Law, Hertford College, University of Oxford.

Virginia Mantouvalou is Reader in Human Rights and Labour Law and Co-Director of the Institute of Human Rights, University College London (UCL).

This piece has also been endorsed by Professor Hugh Collins (Oxford), Dr Nicola Countouris (UCL), Dr Cathryn Costello (Oxford), Professor Mark Freedland (Oxford), John Hendy QC (UCL) and Professor Tonia Novitz (Bristol).

Suggested citation: A. Bogg and V. Mantouvalou,’Illegality, Human Rights and Employment: A Watershed Moment for the United Kingdom Supreme Court?’ U.K. Const. L. Blog (13th March 2014) (available at http://ukconstitutionallaw.org/)

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Robert Thomas: Immigration judicial reviews

thomasThere is much current debate over judicial review, prompted in large part by successive government consultation papers. This note provides an overview of recent developments concerning immigration judicial reviews, which have, for many years, provided the bulk of all judicial review claims. The growth in the volume of all judicial reviews over recent years can be attributed to the increase in the number of immigration judicial reviews. As Rick Rawlings put it in his essay, “Modelling Judicial Review”, it has sometimes been difficult to avoid the impression that the Administrative Court is an immigration court with knobs on.

According to the Ministry of Justice’s judicial statistics, in 2011 there were 11,200 applications for permission to apply for judicial review received in the Administrative Court, of which 8,649 concerned asylum and immigration matters – some 77 per cent. The volume of immigration and asylum judicial review claims arises for numerous reasons: the significance of the decisions to those affected, not least in human rights terms; concerns over the quality of decision-making by the immigration authorities; and the opportunities for delay to be gained from tactical litigation, such as last minute applications to challenge removal from the UK.

Often the figures are used to discredit the merits of such challenges – especially by the relevant defendant, the Home Office. Negative epithets such as “lacking substance”, “without merit”, and “vexatious” have repeatedly been employed by the Home Office to characterise immigration judicial reviews. Of the 8,649 immigration judicial reviews lodged in 2011, 607 were granted permission to proceed while 4,604 were refused permission and in only 54 substantive claims did the court rule that the claimant succeeded. Therefore – so the argument goes – only a tiny handful of immigration judicial review challenges ultimately succeed; most are bogus. (For more judicial review statistics, see here and here.)

Yet, this claim requires close study. For a start, many judicial review claims are knocked out of the system at an early stage; they are either conceded by the Treasury Solicitors or withdrawn by the claimant. It is often quicker and cheaper for a case to be conceded early in the litigation process rather than fought out to the end. The initial decision will then be reconsidered by the Home Office. The concession of such cases by the Home Office in effect represents a successful legal challenge by the claimant: the Home Office has reconsidered its decision, which is the purpose of judicial review. Even if the substantive outcome is still negative for the claimant, the concession illustrates the role of judicial review in correcting legally flawed decisions. However, the number of claims that are conceded are not recorded within the official statistics. Nor does the government collect data concerning the reasons why cases are conceded. Nonetheless, it is clear that many immigration judicial reviews are conceded by the Treasury Solicitors because it is recognised that the impugned decisions are not legally watertight and could not be defended in court.

Even working on the basis of the figures that we have, it can be seen that the success rate for immigration judicial reviews is quite respectable. Some 54 immigration judicial review claims succeeded. The relevant denominator here is neither 8,649 (the number of immigration judicial reviews lodged with the Administrative Court) nor 607 (the number of such claims granted permission to proceed), but 126 (the number of such claims that proceeded to a substantive judicial review hearing). Taking this into account, the success rate of immigration judicial reviews in 2011 was 43 per cent – a clear indication that it is wholly wrong to categorise such claims as without merit; on the contrary.

On the other hand, the volume of immigration judicial reviews is distinctive and without precedent. It is perhaps understandable if there are concerns about the number and incidence of the caseload. If many administrative decisions are challenged, then government agencies can become paralysed, backlogs and delays accumulate, and costs increase.

But it is difficult at times to have much sympathy for the Home Office: its own approach toward judicial review and legal compliance has sometimes fallen short of the standards to be expected – occasionally drastically so. In 2008, one judge spoke of the “seeming inability of that Department to comply not merely with the law but with the very rule of law itself.” In other cases, the courts have trenchantly criticised the Home Office’s failure to comply with basic legal standards. Many examples could be given. Take Muuse for instance. A Dutch national of Somali origin had been unlawfully detained by immigration officials pending deportation to Somalia in circumstances where there was no right to deport. The Court of Appeal characterised the conduct of junior officials as “manifest and unsupervised incompetence” and “outrageously arbitrary” and decided to award exemplary damages. This negative approach toward compliance with basic legal norms is sometimes reflected in the department’s response to successful judicial challenges.

Another point is that claimants often resort to judicial review not to challenge decisions or to delay removal, but just to prompt the Home Office to produce an initial decision in the first place because all other avenues (such as letters and complaint to MPs) have failed. Judicial review is a vital tool for not just for challenging “crummy decisions but also inertia”. Given the well-reported backlogs and delays in immigration – especially asylum – decision-making, claimants may resort to judicial review just to get a decision out of the Home Office. In such circumstances, judicial review is not a means of blocking an administrative decision, but of getting one in the first place.

The principal issue that has arisen over recent years has been how to handle the volume of challenges. From the governmental perspective, the volume of judicial reviews affords claimants the opportunity to delay the immigration decision-making process – in particular the Home Office’s efforts to remove illegal entrants and unsuccessful asylum applicants from the UK. If the Home Office had its way, then judicial review of immigration decision-making would be abolished altogether.

From the judiciary’s perspective, things look very different. As senior judges have warned the executive, judicial review is increasingly essential to vindicate the rule of law. Yet, the judiciary has for some years held concerns about immigration judicial review, especially the volume of the caseload and the consequent pressure on the workload of the Administrative Court. Deputy High Court judges have increasingly been drafted in to help out. Another judicial concern has been the perceived repetitive and fairly low-level nature of the work. As the Judicial Working Group on regionalisation of the Administrative Court explained in 2006: “each case is intrinsically important, but the applications are numerous and repetitive. We do not consider that this is an appropriate use of High Court judge time.” A third concern on the judiciary’s behalf has been the risk of abusive and vexatious judicial review claims. Judges have warned law firms against making “hopeless” judicial review claims to halt the removal or deportation of illegal immigrants. In one case, the court stated:

“the Administrative Court faces an ever increasing large volume of applications in respect of pending removals said to require immediate consideration.  Many are filed towards the end of the working day, often on the day of the flight or the evening before a morning flight.  In many of these applications the person concerned has known for some time, at least a matter of days, of his removal.  Many of these cases are totally without merit.  The court infers that in many cases applications are left to the last moment in the hope that it will result in a deferral of the removal.”

The court continued to give a stark warning:

“late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.”

There is a long history to all of this. In 2003-04, the Home Office, under the political lead of the then Home Secretary David Blunkett, failed in its attempt to oust judicial review of all immigration decision-making. This was followed by changes to the structure of the immigration tribunal and then wider changes to the tribunals more generally, in particular the introduction of the two generic tribunals: the First-tier Tribunal and the Upper Tribunal. The Tribunals, Courts and Enforcement Act 2007 also conferred upon the Upper Tribunal a judicial review jurisdiction. However, immigration and asylum judicial reviews were explicitly excepted from this – with the ouster clause episode still in recent memory, objections were raised in Parliament to allowing such judicial reviews to be transferred.

At the government’s behest, Parliament returned to the issue in the Borders, Immigration and Citizenship Act 2009. Under this Act so-called “fresh asylum” claim judicial reviews were transferred to the Upper Tribunal. This category of case concerns asylum applicants who have proceeded without success through the initial and appellate decision-making process and then subsequently claim lodge a fresh asylum claim on the basis that a change in conditions in their country of origin have now generated a risk of persecution or ill-treatment on return. A refusal by the Home Office to consider any further submissions as a fresh asylum claim can be challenged through judicial review. More recently, under the Courts and Crime Act 2013, all immigration judicial reviews may now potentially be transferred from the Administrative Court to the Upper Tribunal.

The government’s argument for transferring all immigration judicial reviews has been the volume of such claims. As Lord McNally stated in 2012: “This volume of cases is unsustainable for the Administrative Court. It keeps High Court judges from other complex civil and criminal cases that they should be hearing. It has created a backlog and has added to waiting times for all public law cases heard by the administrative court”. It is fairly clear that the senior judiciary have been pushing for the transfer of immigration judicial reviews in order to relieve the pressure on the Administrative Court. At the same time, the judiciary has held the view that some immigration judicial reviews are plainly suited to the Administrative Court and should therefore remain there.

On the 21st August 2013, the Lord Chief Justice issued a practice direction to the effect that most, though not all, immigration judicial reviews would be transferred to the Upper Tribunal in November 2013. The following categories of immigration judicial reviews will not be transferred: a challenge to the validity of primary or subordinate legislation or of immigration rules; a challenge to the lawfulness of detention; a challenge to a decision concerning inclusion on the register of licensed Sponsors maintained by the United Kingdom Border Agency, or any authorisation of such Sponsors; a challenge to a decision as to citizenship; a challenge to a decision concerning asylum support; a challenge to a decision of the Upper Tribunal; a challenge to a decision of the Special Immigration Appeals Commission; or an application for a declaration of incompatibility under the Human Rights Act 1998.

Most of these exceptions are justifiable. It would be inappropriate to transfer nationality judicial reviews to the Upper Tribunal because the Immigration and Asylum Chamber of the Upper Tribunal has little expertise in nationality law – there is no right of appeal against most nationality decisions. Instead, judicial review has been the normal remedy and there have been very few such challenges in any event. It would also be inappropriate to transfer Cart-style judicial reviews from the Administrative Court to the Upper Tribunal: that would result in the Upper Tribunal reviewing itself. Similar considerations arise in relation to the Special Immigration Appeals Commission (SIAC) because part of SIAC’s membership is drawn from the Upper Tribunal immigration judiciary. Also, there is a strong case for keeping challenges to primary and secondary legislation and the Immigration Rules in the Administrative Court.

Despite the number of exceptions, the bulk of the immigration judicial review caseload will now be transferred to the Upper Tribunal. Such cases will include: challenges against removal directions and deportation; challenges against initial immigration decisions which do not attract any right of appeal to the tribunal; challenges against non-suspensive appeals (ie an asylum claimant with a claim certified as clearly unfounded may appeal only from outside the UK, but he or she can first seek judicial review of the decision to certify the claim as unfounded).

From one perspective, transferring immigration judicial reviews is part of a wider set of changes in the remedies available to individuals seeking to challenge immigration decisions. The general trend has been to restrict or abolish access to such remedies. For instance, the Courts and Crime Act 2013 has also abolished the right of appeal for family members refused visit visas. Other changes have included the withdrawal of legal aid for immigration appeals (except for asylum and bail cases) and the introduction of fees for lodging an appeal with the tribunal.

Transferring judicial review is, though, not abolition or restriction, but about changing the relevant venue. “Tribunalising” judicial review has clear advantages for the higher courts: off-loading the work elsewhere reduces the pressure on the High Court’s caseload and allows it to focus more clearly on the high-end work. The thinking is that it takes non-specialist High Court judges and Deputy High Court judges longer to deal with an immigration judicial review than it would a specialist judge.

It also has the effect of institutionalising the distinction between “constitutional” and “policy” judicial review challenges and “bureaucratic” and “individual” judicial review; the two categories will now, by and large, be streamed into separate forums. This is an important constitutional development. The High Court has, for centuries, provided the forum for legal challenges against executive action affecting personal liberty. Its jurisdiction is based upon common law tradition, the court’s own high status, and the quality and independence of High Court judges. By contrast, the Upper Tribunal was established in 2008 and the Immigration and Asylum Chamber has only been in existence since 2010. The Upper Tribunal is not simply another inferior judicial body; it has been designated by the Tribunals, Courts and Enforcement Act 2007 as a superior court of record and part of its role is to provide judicial leadership to the First-tier Tribunal. Nonetheless, it is a relatively new judicial institution and remains untested.

Do Upper Tribunal judges possess sufficient expertise and rank to determine immigration judicial reviews? Different views have been expressed. Speaking for the Government, Lord McNally in 2012 explained that “the Upper Tribunal over the past three years has demonstrated very clearly that it has both the experience and the expertise to deal with these matters”. According to Lord Woolf, “the Upper Tribunal has huge expertise, which except in a very small number of cases is not available to High Court judges. Therefore, it is not apparent that they have the ability to deal with these cases as expeditiously and effectively as the tribunal.” Similarly, in 2012 Sir Nicholas Blake (the first President of the Upper Tribunal (Immigration and Asylum Chamber)) noted that the development of a skilled body of Upper Tribunal judges versed in public law aspects of immigration law surely makes the cases for permitting a greater transfer of judicial review work from the over burdened and generalist Administrative Court. Through a good understanding of the subject matter the Upper Tribunal judge can handle these applications speedily, fairly and effectively and once the investment in administrative support and technology has been made can do so more economically than elsewhere. On this view, the Upper Tribunal is better equipped than the Administrative Court.

Another view is that there might be some optimism bias here about the capabilities and skills of Upper Tribunal judges. Such judges may be expert in a particular area of law and practice, such as immigration and asylum law. However, they are not necessarily expert in handling judicial review cases. Upper Tribunal judges are accustomed to determining substantive appeals and undertaking an error of law jurisdiction. Many of them will have spent their judicial career solely determining immigration and asylum appeals at tribunal level and might never have head cases outside of that jurisdiction. This is not to say that Upper Tribunal judges could not with training determine judicial review claims. It does, though, mean that their body of experience in hearing judicial review cases is limited.

More widely, there is a general tension in the tribunal-court structure between specialist tribunals, which are expert in their particular area but lower down the judicial hierarchy, and the higher courts, which are superior though generalist courts. On the one hand, expertise has advantages in terms of allowing specialist judges to conclude matters at an appropriate level of the wider judicial structure. On the other hand, generalist legal expertise is necessary to keep the junior albeit expert judges in check and to ensure that they do not become a law unto themselves. This tension can be seen reflected across a number of different issues over recent years, such as the degree to which the higher courts will find errors of law in tribunal decisions and the scope for judicial review of the Upper Tribunal. The issue turns upon two key issues. First, there is the degree of trust and confidence between different levels of the judicial hierarchy. While the higher courts will respect the expertise of the Upper Tribunal, there have been various cases in which the tribunal has been pulled up by the higher courts for making legal errors and mistakes. The second key issue is managerial and concerns the best deployment of limited judicial resources.

It is also necessary to take account of the changes that have been occurring at the tribunal level. For many years, the role of the immigration tribunal was simply to apply the Immigration Rules to facts of the case and the evidence presented; it was a fairly narrowly focused body that engaged in fact-finding and correcting errors of law. But, over recent years, the tribunal it has taken on new roles, such as: laying down general guidance on complex legal issues; grappling with wider human rights issues; issuing factual country guidance on the conditions in countries that produce asylum claimants; and absorbing and applying general public law principles as drawn from the higher courts not just in the UK, but also in Strasbourg and Luxembourg. That Upper Tribunal judges have to apply general public law norms, such as procedural fairness and proportionality, reduces significantly the distinction between their role and that of High Court and Deputy High Court judges in the Administrative Court. Add to this the flexible composition of the Upper Tribunal. Judges of the High Court are judges of the Upper Tribunal and may be requested to sit in the Upper Tribunal. Special arrangements may be made in a particularly important case by having a High Court or Court of Appeal judge to sit on the panel. On balance, the Upper Tribunal seems to be in a good position to take on immigration judicial reviews.

Another consideration is that the Home Office is not the average public authority defendant. It has a poor reputation for complying with and respecting the tribunal process, for instance, by failing to comply in a timely manner with directions issued by the tribunal and failing to disclose relevant matters. Consider what seems to be a recurrent feature of the Home Office’s relationship with the Administrative Court: the removal of an individual from the UK despite the court having ordered the Home Office not to remove the individual. In one such instance, the Administrative Court issued a second order requiring the Home Office to use its best endeavours to return the claimant. Even then the Home Office sought to have the second order set aside. Singh J was “very concerned” that the Home Office had failed to comply with his order. How would the Upper Tribunal fare in such circumstances? In the view of the Immigration Law Practitioners’ Association (ILPA), the Upper Tribunal has not demonstrated the same ability to deal with the UK Border Agency‘s conduct as a litigant as the High Court. According to ILPA, it continues to be the higher courts rather than the Immigration and Asylum Chamber of the Upper Tribunal that calls the UK Border Agency to account for its conduct as a litigant. We cannot know for certain whether or not the Upper Tribunal would deal as robustly as the High Court with instances of such blatant non-compliance. Past experience shows that the immigration tribunal has never really been that concerned about severely criticising the Home Office.

Apart from changing the venue for judicial review challenges, what else could be done here? It seems reasonable to assume that a large number of judicial reviews may not be solely an indication of a propensity to challenge, but also a symptom of problems elsewhere in the administrative process. Shifting some of the caseload elsewhere might relieve pressure on the High Court, but does nothing to deal with the underlying problems. An obvious point, then, is that more effort could be made to enhance initial decision-making. This could be done through better consideration of claims, more training for decision-makers, internal quality control checks, and seeking to learn appropriate lessons from successful judicial reviews and then changing policies and procedures as appropriate. As ILPA has noted, the volume of judicial reviews would be significantly reduced if the Home Office followed court rulings in individual cases. Currently, many individuals are required to bring their own judicial review challenge because the Home Office is or is proposing to treat them in a way that it has accepted to be wrong in another case. In other words, there is little learning within the department from one case to another. Learning from judicial review to avoid the repetition of past mistakes is a worthy aspiration. The realities of bureaucratic administration – operational silos within the agency, cuts to budgets and personnel, the lack of institutional memory, and the difficulties of disseminating organisational learning throughout a large governmental agency – often militate against this. Nonetheless, the Home Office could make much more of an effort in this respect. It should also be accompanied by a recognition of the importance of legal compliance.

Another long discussed solution is to simplify the rules and regulations that govern immigration decision-making. Much of the legislative framework governing immigration is highly complex and intricate. Indeed, the Home Secretary, Theresa May, when announcing the abolition of the UK Border Agency in March 2013, noted that one of the agency’s main problems concerned the legal framework in which it has to operate: “the agency is often caught up in a vicious cycle of complex law and poor enforcement of its own policies, which makes it harder to remove people who are here illegally”. The agency’s “complicated legal framework often works against it”. It is not just the complexity of the law; it is also the outmoded nature of some of it. As Lord Sumption recently noted in New London College Limited, “The Immigration Act 1971 is now more than forty years old, and it has not aged well. It is widely acknowledged to be ill-adapted to the mounting scale and complexity of the problems associated with immigration control.”

In 2009, under the previous government, the agency published a draft simplification bill, but nothing much came of it and the bill was never included in the government’s legislative programme let alone enacted into law. An immigration bill was announced in the recent Queen’s Speech, but this is intended to confine the scope of Article 8 ECHR and reduce the ability of immigrants to access health care. It seems unlikely that the new Bill will provide the much-needed wide-ranging comprehensive simplification of immigration law – yet this is precisely what is required to make the law easier and simpler to apply and to reduce the incidence of errors.

Looking to the future, it is possible that to envisage other chambers of the Upper Tribunal exercising a judicial review jurisdiction for handling “individual” judicial review claims while the constitutional and policy challenges remain with the Administrative Court. The government is currently consulting on, amongst other things, transferring planning judicial reviews into a new Land and Planning Chamber of the Upper Tribunal. This reinforces the sense that the First-tier and Upper Tribunals now comprise the essential parts of the public law system for challenging government decisions. In the meantime, it remains to be seen how the transfer of immigration judicial reviews will work out in practice – and this does not imply just an internal government review. Instead, what is required is an independent empirically based study of the Upper Tribunal’s exercise of its judicial review jurisdiction. In November 2012, the Joint Committee on Human Rights noted that there had not been any systematic review “of the exercise by the Upper Tribunal of its judicial review jurisdiction generally, and there is therefore no evidence before Parliament of how the Upper Tribunal is performing that significant judicial role.” Given the volume of judicial reviews being transferred, the need for such a systematic review remains compelling.

Robert Thomas is Professor of Public Law at the University of Manchester

Suggested citation: R. Thomas, ‘Immigration judicial reviews’   UK Const. L. Blog (12th September 2013) (available at http://ukconstitutionallaw.org)

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Greg Weeks: Proposed changes to Australia’s Migration Act

gregAustralia is in the midst of an election campaign and, as has been the norm over recent years, both major parties have taken an aggressive line on asylum seekers who enter Australia by boat.  Both parties have released new, unashamedly harsher policies.  They have also drawn distressed responses from those who advocate a more humane approach to dealing with the issue of those who undertake the arduous journey to reach Australia by boat in order to claim refugee status.  While smaller parties, such as the Greens, lament the major parties’ policies for their inhumanity, the same policies appear to be welcome to a large number of Australians, particularly in the marginal electorates of Western Sydney.

The policy of the governing Australian Labor Party (ALP) is new, but can nonetheless be seen as an extension of its recent policy of offshore assessment.  This policy was damaged by successive High Court judgments in regard to assessment of asylum seekers in the Australian territory of Christmas Island and in Malaysia, the latter provoking a furious response from then-Prime Minister Julia Gillard.  The new policy seeks to avoid the scrutiny of the High Court by making it clear that people who arrive in Australia by boat will not be settled in Australia, regardless of whether they are owed obligations as refugees.  Instead, they can expect to have their claims for asylum processed in Papua New Guinea and, if it is found that they are in fact refugees, can expect also to be resettled in PNG.  The government has controversially advertised the ALP’s new policy throughout the election campaign so far, supposedly for the information of potential asylum seekers.

The coalition of Liberal and National parties (LNP) has made a rather more radical set of proposals, although LNP policy is still largely similar to the policy of the ruling ALP.  However, last week the Leader of the Opposition, Tony Abbott, announced changes to the LNP policy on asylum seekers which have drawn immediate, heartfelt opposition.  The point over which they have raised the greatest amount of disquiet is the LNP’s stated intention to prevent asylum seekers from obtaining access to courts.  Indeed, the LNP has proposed that it will also abolish the Refugee Review Tribunal (RRT), which has existed since amendments to the Migration Act made in 1989 to provide merits review of decisions regarding refugee status made by the Minister for Immigration’s department.  Rather, the LNP policy proposes that asylum seekers’ claims will now be assessed “by a single caseworker”.  Seemingly, amending legislation will be introduced which states explicitly that the process of assessing refugee status is to be conducted entirely by the executive.  It seems that the LNP believes that such an approach would limit the scope of any claim for judicial review to claims that there had been a breach of procedural fairness.  The content of procedural fairness in a non-statutory context is unlikely to be great.

A number of commentators have stated categorically that if, as expected, the LNP wins the election on 7 September, the new government can expected to see its asylum seeker policy reduced to dust in short order by the High Court.  They may be right, although there are aspects of the LNP proposals which have the potential to confound such expectations.  Much has been made of the fact that the High Court, in a landmark 2003 decision of Plaintiff S157, rendered useless the Howard government’s immigration policy by holding that a privative clause could not be used to prevent a party from seeking relief from the High Court for jurisdictional error.  This does not automatically mean that the proposed LNP policy will suffer the same fate, particularly if it does not hinge on the application of a privative clause.

Other warnings are more likely to come to pass.  In particular, concerns that the High Court will be overwhelmed by asylum seekers whose applications have been rejected by the departmental decision-makers may be well founded.  Because the High Court has original jurisdiction to grant certain remedies where a jurisdictional error has been made by an officer of the Commonwealth, it follows that legislation cannot validly prevent people from seeking remedies on that basis.  However, the Federal Circuit Court and Federal Court of Australia are creatures of statute and it is within the competence of the legislature to prevent those courts from hearing matters seeking review of decisions made in relation to the refugee status of asylum seekers.  It is possible on this basis that the entire weight of hearing judicial review matters challenging refugee status decisions would fall on the seven members of the High Court.

Moreover, there is precedent for this concern.  The Howard government’s legislative attempts over the course of a decade to keep asylum seekers out of the court system succeeded only in creating a massive spike in judicial review applications from asylum seekers.  The government was not always unsuccessful in these matters, although there are several prominent examples of cases which the government won but felt like it had lost, such as Plaintiff S157.  After that case, limitations on the jurisdiction of the Federal Court continued to apply in a way that increased the workload of the High Court.

While not likely, a third possibility presents itself.  The High Court is a conservative body by international standards, as I have commented before.  However, it can be provoked into disobedience on occasions.  A salutary example is that, in Plaintiff S157, the High Court held that the legislature had not intended to prevent access to the High Court in the event of jurisdictional error.  A decision affected by jurisdictional error was not a “decision” to which the relevant privative clause applied.  Of course, the legislature ‘intended’ no such thing and the government of the day felt that it had a strong argument for its privative clause being read such that it prevented access to the High Court.

More recently, the High Court’s decision in the Malaysian Solution Case provoked such outrage from leading members of the government (and indeed from Heydon J in dissent) because the majority judges were prepared to demonstrate a level of judicial creativity that few outside the court had predicted.  There, asylum seekers were able to be sent legally to Malaysia to have their applications for refugee status processed only if the Minister had first made a declaration that Malaysia met four statutory criteria.  The first three hinged on whether Malaysia is a country which “provides” certain protections and procedures.  The majority of the High Court was prepared to read these legislative criteria as amounting to a requirement that certain jurisdictional facts exist.  In other words, it held that the Minister could not validly make the declaration if there was no domestic Malaysian law on point, which the Minister conceded there was not.  This issue has now been dealt with by more explicit legislative drafting but it points to the fact that the High Court is prepared, on occasion, to entertain strained approaches to statutory interpretation where important issues are at stake.

Another possibility is that the High Court will start to apply a more probing level of review to matters concerning asylum seekers, if their cases have not (as now) been through two stages of consideration on the merits and either two or three judicial review hearings before reaching the High Court.  It may be more explicit about what it expects of decision makers in terms of procedural fairness, or require a certain thoroughness in the decision making process that has in the past been left largely to the discretion of the decision maker.

However, there is one thing which the High Court can never do and that is to grant a substantive remedy based upon a review the merits of a matter.  The Court’s remedies are procedural only.  For this reason, if for no other, independent scrutiny of the decision making regarding asylum seekers will inevitably be poorer if the RRT is abolished.

Greg Weeks is a Lecturer in Law at the University of New South Wales

 Suggested citation: G. Weeks, ‘Proposed changes to Australia’s Migration Act’   UK Const. L. Blog (19th August 2013) (available at http://ukconstitutionallaw.org)

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Robert Thomas: The New Immigration Rules and the Right to Family life

In June 2012, Theresa May, the Home Secretary, laid a new statement of changes in immigration rules before Parliament. There is nothing necessarily extraordinary in that; the immigration rules set out the criteria governing the entry into and removal from the UK of foreign nationals and they are frequently amended – as a previous blog by Carol Harlow has noted – to reflect changes in immigration policy.

However, there is something quite distinctive and significant about the June 2012 rules – HC 194 – namely, they seek to prescribe how judicial bodies are to interpret and apply the right to family life under Article 8 ECHR in immigration cases. The government’s aim is, essentially, to reduce the scope for foreign nationals to avoid removal from the UK on the basis that this would breach their right to family life. The machinery for administering immigration policy has been repeatedly been criticised for not being fit for purpose and also for allowing foreign nationals without any right to remain in the UK under ordinary immigration categories to use Article 8. One particularly high-profile issue has been the use of Article 8 by foreign national prisoners, which has been highlighted by the Daily Telegraph in its “End the Human Rights Farce” campaign. Furthermore, the Coalition Government’s general policy is to reduce inward migration.

The new immigration rules raise a number of issues: (i) what exactly is being proposed and how? (ii) what Parliamentary process has been used? and (iii) how might the courts respond to the new rules?

What is being done and how?

 Article 8 is a qualified right and any interference is permissible only so long as it is proportionate and justifiable. In the immigration context, Article 8 has assumed a distinctive role as it is frequently relied upon by foreign nationals who challenge their removal. These challenges have generated an enormous volume of case-law on the legal test to be applied as regards the balance to be struck between family life on the one hand and immigration policy on the other. But, to summarise, the key issue is this: should the courts accept that in most cases the balance between family life and immigration control has been laid down in the Immigration Rules – or should decision-makers themselves determine in each individual case where the proportionate balance lies?

In Huang, the Court of Appeal held that the Immigration Rules represented the appropriate balance between public policy and private right: individuals who did not qualify under the ordinary immigration rules would only succeed under Article 8 grounds if their case was truly exceptional. However, when the same case went to the House of Lords, it held that there was no test of exceptionality: the ultimate question is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. There was, the House of Lords held, no reason to defer to the Immigration Rules which “are not the product of active debate in Parliament, where non-nationals seeking leave to enter or remain are not in any event represented.”

Following Huang, then, it was for the decision-maker – whether initially a caseworker at the UK Border Agency, an immigration judge on appeal, or a court judge by way of further appeal – to make her own assessment as to whether or not removal would breach an individual’s right to family and private life. This test has been accepted and applied since 2007. However, the loss of control here has evidently been too much for the Coalition Government to bear – especially when under acute media and political pressure to respond to public concern – real or otherwise – on immigration.

The rationale for the new rules, therefore, commences by way of critique. According to the Home Office, the Huang approach has resulted in unpredictable and inconsistent decision-making which are anathema to good administration (seasoned observers of the behaviour, action, and inaction of the UK Border Agency and its predecessors may relish the irony here: see, for instance, a special report of the Parliamentary Ombudsmen and multiple reports by the House of Commons Home Affairs Committee on the UKBA’s handling of immigration applications). It has also meant that the courts do not defer to Parliament’s or the Government’s view of where the appropriate balance lies between family life and immigration control. Consequently, the solution – so the Government says – is to introduce new Immigration Rules to do two things: (i) to specify where the balance is to lie, that is, adopt a rules-based approach to proportionality; and (ii) to do so in a way which ensures that the new Rules have democratic legitimacy and should therefore only be subject to a light-touch judicial review.

How do the new Rules attempt to do this? By specifying the criteria to be applied in family life cases. For instance, in foreign national prisoner deportation cases, the new rules state that family or private life (including the best interests of any child, even though always a primary consideration) will not outweigh the public interest in seeing the person deported where they have received a custodial sentence of at least 4 years unless there are exceptional circumstances. This rule allows little scope for a Huang-style general balancing exercise; the main issue under the new rule is whether or not there are “exceptional circumstances”, ie a return to the position reached by the Court of Appeal in Huang.

For those foreign national prisoners with a custodial sentence of between one and four years, the new rules introduce different requirements. Deportation will be proportionate unless they have a genuine and subsisting relationship with a partner in the UK and they have lived in the UK with valid leave continuously for at least the last 15 years and there are insurmountable obstacles to family life with that partner continuing overseas; or they have a genuine and subsisting parental relationship with a British citizen child, or a foreign national child who has lived in the UK continuously for at least the last seven years immediately and it would be unreasonable to expect the child to leave the UK and there is no other family member who is able to care for the child in the UK. Alternatively, they might have lived continuously in the UK for at least the last 20 years and they have no ties (including social, cultural or family) with their home country; or they are under 25 years, have spent at least half of their life living continuously in the UK and have no ties or there are exceptional circumstances.

There are similarly complex and lengthy rules concerning the tests to be applied to other categories of person other than foreign national prisoners, such as cases concerning children and those individuals who seek to remain by virtue of their long residence in the UK. Putting the detailed rules to one side, thee general thrust is to limit and confine discretion and for the Government to give a clear policy steer to the courts as to how they should interpret Article 8. What the Government intends is for the focus of the courts to shift away from assessing the proportionality in each individual case to assessing the proportionality of the Rules themselves. As the rule embody the proportionality assessment at a general level, it is not necessary – the Home Office says – to re-determine it in every individual case.

What Parliamentary process has been used?

A key aspect of the Government’s plan has been to circumvent the concern expressed by the House of Lords in Huang – that the Immigration Rules are not the product of active debate in Parliament. The new rules were debated and approved by the House of Commons.

Or were they? What actually happened on 19 June 2012 is that the Commons debated and approved a Government motion that Article 8 is a qualified right and that the criteria governing immigration are laid down in the Immigration Rules. So much is obvious to anyone with a passing acquaintance with the issues. However, some MPs at the time and, later the House of Lords Scrutiny of Secondary Legislation Committee, queried the relevance and consequences of the June debate. The Home Office’s inconsistent use of the term “Immigration Rules” caused considerable confusion throughout the Commons’ debate. One MP, for example, asked which Rules they were being asked to endorse – the ones current on 19 June or the new version of the rules as amended by HC 194 which would come into effect on 9 July 2012 (HC Deb col 806)).

The Scrutiny Committee has doubted whether procedurally the debate delivered a sufficiently clear endorsement of the wider policy to assist the courts. Although it was the Home Office’s firm intention to provide the courts with a clear policy steer on the weight to be given to Article 8 of ECHR in relation to the Immigration Rules, it was equivocal about the procedural approach for delivering it. According to the Scrutiny Committee, while the Home Secretary’s intention is clear, questions remain about whether the Government’s approach can deliver it: the Home Office provided no evidence to support its view that the procedural approach it proposes will lead the courts to react in the way the Home Office anticipates.

Putting the formal motion to one side, the purpose of the June debate was all about sending a clear message to the courts: apply the new rules or else risk defying the Government. As Theresa May stated:

 “the immigration rules will no longer be a mere starting point, with leave granted outside the rules or appeals allowed under article 8 for those who do not meet them. The immigration rules will instead take into account article 8, relevant case law and appropriate evidence and they will be proposed by the Executive and approved by the legislature. Of course, the courts have a clear constitutional role in reviewing the proportionality of measures passed by Parliament, but now the focus of the courts should be on considering the proportionality of the rules rather than the proportionality of every individual application determined in accordance with the rules. Where the courts consider individual deportation decisions, it should now be with consideration of Parliament’s public policy intent firmly in mind.” (col 763)

The Government would no doubt have been confident that it would face few problems in the Commons on the substantive issue of confining family life for, amongst others, foreign national prisoners: only a few brave MPs would take issue with that. The Labour party’s line was that the message being sent to the courts was not strong enough because the policy was only being introduced through the Immigration Rules and not through primary legislation (col 774).

How, then, might the courts respond?

It is clear that the new rules will, before long, be challenged in the courts. This might initially take a little while. A case may first be determined by the Upper Tribunal (Immigration and Asylum Chamber), then by the Court of Appeal, the Supreme Court, and perhaps ultimately Strasbourg. The Home Office, though, seems ready for it. Along with the new rules, it published a detailed statement of ECHR compatibility which, unsurprisingly, concluded that the new rules are compatible with Article 8 ECHR.

What then of the courts? Since Huang, the Supreme Court has, in a number of cases, emphasized that the fact-sensitive and judgmental nature of the proportionality assessment in immigration cases cannot be constrained by rules. In EB (Kosovo), Lord Bingham stated:

 “the … [tribunal] … must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires.”

In another Article 8 case decided at the same time as EB (Kosovo) – Chikwamba – Lord Scott put it more succinctly:

“policies that involve people cannot be, and should not be allowed to become, rigid inflexible rules. The bureaucracy of which Kafka wrote cannot be allowed to take root in this country and the courts must see that it does not.”

The problem with the new rules is that there will always be cases that fall on the wrong side of the rigid requirements laid down, but which a court or tribunal may nonetheless conclude deserve to be allowed because of the strength of countervailing factors. It is generally recognised in administrative law that when the decision task at hand is particularly important – when the error costs of incorrect decisions are particularly high – then flexibility and discretion are to be preferred to rigid rules which are over-inclusive. Also, a flexible standard as applied by a court or tribunal enables affected individuals to participate directly in the decision-making process. But, these factors have to be weighed against political forces pushing in the opposite direction.

There are a number of options for the courts. First, the courts could simply accept the new rules and apply them by recognising them as the Government’s clear wish as approved by the House of Commons. This supine posture, however, seems unlikely. The Immigration Rules are subordinate legislation and not in any way immune from judicial scrutiny. Even if the courts recognise the need for some deference, the importance of Article 8 is a major countervailing force. As the House of Lords noted in Huang:

 “Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives.”

Secondly, the courts could go the other extreme and strike down the relevant immigration rules as incompatible with Article 8 as interpreted by the House of Lords in Huang. This is possible – if, for instance, the courts find that the rules so restrict the proportionality assessment that they do not comprise a valid interpretation of the case-law. Judicial invalidation of the Immigration Rules is rare, but not unknown. A determined Government could in response do two things: (i) change the rules on each occasion to accommodate the flexibility required by the courts; or (ii) introduce primary legislation, but that would take up valuable legislative time.

Thirdly, the courts could take a middle path by interpreting the Rules against the general background of the Human Rights Act and hold that the new rules do not absolve the courts from applying Article 8 under the HRA. After all, what is the legal status of formal secondary rules which seek to lay down the executive’s interpretation as to how independent courts ought to assess the proportionality of decisions that infringe a qualified ECHR right? The courts could conclude that, in the human rights context, the rules are to be treated as more akin to administrative guidance – a set of relevant considerations no doubt, but not formally binding because of overarching ECHR standards.

The scene is, then, set for a showdown – sometime in 2013-14 I would guess. It is almost as if the Government has drawn a line in the sand and has now dared the courts to cross it. Picking an argument with the courts has, of course, long been the stock-in-trade of Home Secretaries when the normally hard-grind of government gets even tougher; former Home Secretaries such as Michael Howard and David Blunkett both had their run-ins with the courts. A cynical observer might suggest that lying beneath all the formal surface issues of the rules, Parliamentary procedure, case-law, and so on, the Government has been in search of a future blame-avoidance strategy. If the courts accept the rules, then fine, but they are rejected, then the Government can always throw any political come-back into the courts’ direction. As Baroness Hale noted in Walumba Lumba, “[t]hese are just the sort of circumstances, where both Ministers and their civil servants are under pressure to do what they may know to be wrong, in which the courts must be vigilant to ensure that their decisions are taken in accordance with the law. To borrow from the civil servants’ correspondence, the courts must be prepared to take the hit even if they are not.”

Robert Thomas is Professor of Public Law at the School of Law, University of Manchester

Suggested citation: R. Thomas, ‘The New Immigration Rules and the Right to Family Life’  UK Const. L. Blog (4th October 2012) (available at http://ukconstitutionallaw.org

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Carol Harlow: How not to do things with rules

For many years now, administrative lawyers have been puzzling over the relationship of rules and discretion. When is a rule a rule? Does the term properly cover ‘quasi-legislation’ or what is now generally called ‘soft law’? In his seminal study, Discretionary Justice (Urbana, Louisiana State University Press, 1969), KC Davis argued that rules of this type should be used to structure and confine administrative discretion. The consequence would be greater transparency; light would be cast on some ‘dark and windowless areas of administrative law’. The managerial style of public administration since the 1980s has taken the technique very much further. Public administration is now dominated by various forms of rule, a development hastened by the greater use of ICT by government departments. Policy statements, government papers, guidance and other information is now widely accessible on government websites and what is not openly published is often made available through requests made under the Freedom of Information Act 2000.

Generally benign, these developments have brought their own problems to which the over-burdened and generally unloved immigration service has been particularly prone. It is not so long since a previous Home Secretary declared his department ‘unfit for purpose’ and immigration case law regularly reveals scenes of great confusion, with policy changes introduced so rapidly that even officials cannot keep up (see eg R (Rashid) v Home Secretary [2005] EWCA Civ 744). The recent Supreme Court case of R (Munir and Rahman) v Home Secretary [2012] UKSC 32 casts further light ­– if this were needed – on the somewhat arbitrary way in which ministers of all political persuasions tinker with immigration policy. In 1996, the Home Office issued a Policy Document (DP 5/96) on deportation policy in cases involving children born in the UK and resident for seven or more years (the so-called 7-year concession). In practice, concession effectively glossed a later policy document contained in departmental ‘Instructions’ (the ‘Long Residence Concession’) which made no mention of the 7-year concession. In 1999, the Home Office ‘modified’ DP5/96 in a ministerial statement that significantly stated (i) that each case must be considered on its merits subject to a ‘general presumption’ that the 7-year concession would be observed; and (ii) that ‘certain factors’ should be considered as ‘relevant to reaching a judgment’ in such cases. In 2003, the Long Residence Concession was modified in a Statement of Changes to the Immigration Rules duly laid before Parliament (HC 538, 2003), which actually made no direct mention of the concession ­– never formally withdrawn, though it was at some point apparently taken off the departmental website. Suddenly, in 2008, however, the Minister for Borders and Immigration in a written parliamentary statement withdrew DP 5/96. M and R, who had hoped to benefit from the 7-year concession, challenged the withdrawal by judicial review, arguing that it was irrational and unfair and also invalid because the proper parliamentary procedure had not been followed.

Before setting out the argument in greater detail, it is necessary to feed in a second case decided by the same court (Lords Hope, Walker, Clarke, Dyson and Wilson JJSC) on the same day. R (Alvi) v Home Secretary [2012] UKSC 33 concerned the points-based system of entry for non-EEA nationals who wish to work in the United Kingdom, introduced in 2008 by a Statement of Changes in Immigration Rules duly laid before Parliament (HC 1113, 2008). So far, so good. But HC 1113 made reference both to a resident labour test as defined in ‘guidance’ published by the United Kingdom Border Agency (UKBA) and to a ‘list of skilled occupations’ to be maintained by UKBA. A, who had entered lawfully as a student but stayed on illegally, was in 2009 refused leave to remain on the ground that his job was not so listed and that his salary fell below the stipulated requirement for the policy. A challenged this decision on the ground that the list was contained in ‘Occupational Codes of Practice’ published only on the departmental website; it had never been laid, as it should have been, before Parliament.

These cases raised several tricky questions concerning the nature and quality of ‘bureaucratic rules’. The status of the Immigration Rules has always been a puzzle. They derive from the Immigration Act 1971, which for the first time imposed statutory controls on Commonwealth citizens. Section 3(2) provides that the Home Secretary

shall from time to time… lay before Parliament statements of the rules or any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter…

In both our cases Statements of Changes had been made and laid and their validity was not in issue. The question was whether policy changes introduced through informal rule-making were valid, or if they too ought to have been laid.  Taken together the two cases raised three central questions:

  • What is the legal status of the Immigration Rules?
  • Can the Rules be changed or modified by ‘soft law’?
  • Is it open to the Home Secretary fall back on the prerogative powers?

The prerogative power

This question got a brusque reception! The only mention of prerogative in the 1971 Act was a saving clause (s 33(5)), which provided that the Act should not be taken to ‘supersede or impair’ the prerogative as applicable to aliens. Unanimously, in a single judgment delivered by Lord Dyson, the Supreme Court ruled (i) that the prerogative powers had never extended to Commonwealth citizens and (ii) that Parliament had in any event intended the 1971 Act to be the sole source of powers to regulate immigration (Munir at [23]-[26]). This simple application of the principle in De Keyser’s case (A-G v De Keyser’s Royal Hotels [1920] AC 508) will come as no surprise to constitutional lawyers, who have watched the courts in recent years ‘structure and confine’ the ultimate discretion of the royal prerogative almost out of existence. It is only in exceptional cases, involving defence and security or foreign affairs – as in the recent case of the unfortunate Chagos Islanders, expelled from the islands by an Order in Council made under the prerogative – that an argument based on prerogative powers will receive a sympathetic hearing – and even then the courts are hard to persuade (see, eg, the judgment of the High Court in R (Bancoult) v Foreign Secretary [2006] EWHC 1038, overruled by the House of Lords at [2008] UKHL 61). In our rule-based administration, such arguments will become increasingly rare.

The Immigration Rules (IRR)

If the power to make the IRR derives from statute, then the Immigration Act was in more ways than one ambiguous. It contained no specific grant of power to make regulations, and the Supreme Court was driven to imply one from a reference in a Schedule to ‘Instructions’. Both a power, exercisable in terms of s 3(2), and a duty to make regulations, vested in the Secretary of State, was however confirmed (Munir at [27]). Lord Dyson went on to dispose shortly of the thorny question of the legal status of the IRR: these were not, as the House of Lords had opined in MO (Nigeria) v Home Secretary [2009] ULHL 25, an executive statement of policy; they were subordinate legislation made under the authority of the 1971 Act. The IRR were in short ‘hard law’ that had to be laid before Parliament. This decisive ruling should end the uncertainty and unease registered by Sedley LJ in Pankina v Home Secretary [2010] EWCA Civ 719 at ‘rules being elevated to a status akin to law’.

Changes of policy       

The ground was now cleared for the crunch question: when was a rule a ‘statement of practice’ that needed to be laid in terms of s 3(1)? In Munir, the Court was able effectively to side-step this question since, if withdrawal of DP 5/96 was, as argued, unlawful because of failure to follow the requisite parliamentary procedure, it must follow that DP 5/96 was itself invalid for the same reason. In any event, DP5/96 was not a ‘statement of practice’ because it incorporated discretion: each case had to be considered on its merits and the factors ‘relevant to reaching a judgment’ might or might not be applied. Judged by the rule-of-thumb established by Lord Dyson, that the less the flexibility inherent in the concessionary policy, the more likely it was to fall within s 3(2), DP5/96 was merely a ‘concessionary policy statement’. Perhaps the only surprise here lies in the total absence of any mention of the doctrine of legitimate expectation.

In Alvi, it was harder to resolve the crunch question and, although there were no dissenting judgments, the Supreme Court Justices were not so tidily at one. There was general agreement that the points system did amount to a statement of practice within s 3(2) and did need to be laid. Both the ‘guidance’ and the ‘List of Skilled Occupations’ posted on the departmental website created requirements which the immigrant ‘must’ satisfy; they were in short, determinative of rights and must be laid before Parliament.

These nice distinctions (which surely fall within Humpty Dumpty’s famous observation that words mean what the speaker wants them to mean) leave much room for jurisprudential analysis. What are we to make, for example, of Lord Dyson’s conclusion in Munir that a ‘concessionary policy statement’ is not a ‘statement of practice’? Of more interest, however, is where the boundary between rules and discretion lies. This is, after all, a question that administrative lawyers have been discussing at least since KC Davis wrote, with many contributions from distinguished jurists, such as Ronald Dworkin’s ‘hole in the donut’ metaphor. It is fair to say that there is much academic support for the idea of rules and discretion as points on a spectrum or sliding-scale, though needless to say, the academic debate (summarised in ch 5 of C Harlow and R Rawlings, Law and Administration, Cambridge University Press, 2009) found no place in the two Supreme Court decisions. Indeed Lord Dyson in Alvi simply brushed aside the notion of a spectrum as advanced by Sullivan LJ in R (Joint Council for the Welfare of Immigrants) v Home Secretary [2010] EWHC 3524 (Admin) in favour of a clear binary distinction between ‘substantive’ and ‘procedural/evidential’ requirements – a distinction that he immediately rejected as not providing a ‘satisfactory basis for deciding what is and what is not a rule within the meaning of s 3(2)’. Lord Dyson’s solution was that ‘a rule is any requirement which a migrant must satisfy as a condition of being leave to enter or leave to remain’ (emphasis mine). This ‘solution’ reprises the well-known problem of distinguishing ‘must’ from ‘may’ traversed many years ago in Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997 and rather suggests that a rule is a rule when Humpty Dumpty (a.k.a. the Home Office, UKBA or, indeed, the Supreme Court) chooses to treat it as mandatory.

What is the outcome for immigration law? It is now clear that the IRR are subordinate legislation and that any change to them involving mandatory requirements or conditions will have to be laid. This is a conclusion reached by Lord Wilson ‘without enthusiasm’; he rightly saw that it would create ‘an astonishingly prescriptive system’ (Alvi [128]). Lord Hope in the leading judgment, expressed similar concern (Alvi [65]) over the burden on Parliament, falling for the most part on the House of Lords Committee on the Scrutiny of Secondary Legislation (formerly the ‘Merits Committee’), if the process of laying were not to become a mere procedural formality. Equally, there would be a burden on the courts from the ‘rapid succession of cases’ and new opportunities afforded for challenge (Alvi [54]). Against these negative impacts, however, the dangers of allowing the Home Secretary unfettered discretion to change the rules must be weighed.

How can this rigid and inflexible system, brought about through a laudable desire for legal certainty and administrative consistency, be ameliorated or, better still, evaded? Has the Supreme Court opened an escape hatch in Munir? Provided the draftsman is careful to scatter the magic words ‘may’ liberally throughout the text, perhaps substituting ‘advice’ for ‘guidance’, statements of policy change may ’scape laying. How immigration officials will read the rules is, of course, another question altogether!

Carol Harlow is Emeritus Professor of Law at the London School of Economics

Suggested citation: C. Harlow, ‘How not to do things with rules’ UK Const. L. Blog (15 September 2012) (available at http://ukconstitutionallaw.org).

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