Alvi, R (on the application of) v Secretary of State for the Home Department

This judgment is six parts namely:

This is an appeal against the refusal of the Secretary of State to grant leave to remain to a non-EEA economic migrant.

The rules for granting to such migrants leave to enter or leave to remain were overhauled in 2008. The scheme for granting work permits under rule 128 of the Immigration Rules and other provisions was, in large measure, replaced by a new Points Based System (“PBS”). The PBS has a number of tiers. Tier 1 is for highly skilled workers who come from outside the EEA. Tier 2 is concerned with skilled workers with a job offer to fill gaps in the UK labour force. Tier 2 has a various sub-categories, of which the relevant one for present purposes is “Tier 2 (General)”. Each applicant under Tier 2 (General) must a have a certificate of sponsorship issued by his prospective employer, the sponsor. The UK Border Agency (“UKBA”) administers the PBS on behalf of the Secretary of State.

Let me now turn to the legislative framework. Section 1(2) of the Immigration Act 1971 (“The 1971 Act”) provides that those not having the right of abode in the UK may live, work and settle in the UK by permission and subject to such regulation and control of their entry into, stay and departure from the UK as is imposed by the 1971 Act. Section 1(4) states that the rules laid down by the Secretary of State as to the practice to be followed in the administration of the 1971 Act for regulating the entry into and stay in the UK of persons not having the right of abode shall include provision for admitting persons coming for the purposes of taking employment. Section 3 (1) of the 1971 Act provides that a person who is not a British Citizen shall not enter the UK unless given leave to do so in accordance with the provisions of the Act. It further provides that he may be given leave to enter the UK or remain in the UK either for a limited or for an indefinite period.

Section 3 (2) of the 1971 Act provides as follows:

“ The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of 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, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).

If a statement laid before either House of Parliament under this subsection is disapproved by the resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid). ”

The Immigration Rules and successive amendments to those rules have been laid before Parliament pursuant to s. 3(2) of the 1971 Act.

Paragraph 128 of the Immigration Rules provides:

“The requirements to be met by a person coming to the United Kingdom to seek or take employment (unless he is otherwise eligible for admission for employment under these Rules or is eligible for admission as a seaman under contract to join a ship due to leave British waters) are that he:

As explained above, the provisions of paragraph 128 have largely been replaced by the PBS.

Paragraph 245 ZF of the Immigration Rules provides:

“To qualify for leave to remain as a Tier 2 Migrant under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirements:….

(e)

If applying as a Tier 2 (General) Migrant or a Tier 2 (Intra-Company Transfer) Migrant, the applicant must have a minimum of 50 points under paragraphs 59 to 84 of the Appendix A”.

Paragraphs 59 to 84 of Appendix A to the Immigration Rules are too lengthy for me to set out as a quotation. Instead those provisions are attached as Appendix A to this judgment.

It can be seen that paragraph 82 (a)(i) of appendix A to the Immigration Rules refers to the UKBA’s List of Skilled Occupations. This List was placed on UKBAs website on 28^th November 2008. I shall refer to this as “The List of Skilled Occupations” or “The List”.

Section Q of the List relates to human health and social work activities. Section Q is divided into three parts. Part 1 of Section Q lists skilled jobs, which are stated to be at NVQ or SVQ level 3 or above. Part 2 of section Q lists borderline jobs. Part 2 goes on to identify those borderline jobs which are at or above NVQ or SVQ level 3 and therefore qualify. Part 3 of Section Q lists lower skilled jobs, which are below NVQ or SVQ level 3. The opening paragraph of Part 3 explains that sponsors cannot issue certificates of sponsorship for any of these occupations. There then follows a review of individual occupations. Paragraph 3221 deals with physiotherapists. This states:

“Physiotherapists must be registered with the Health Professions Council (HPC) to practice in the United Kingdom.

All jobs in this occupation code are at or above NVQ or SVQ level 3.

The following jobs in this occupation code are at or above NVQ or SVQ level 3:

•

Assistant practitioners

•

Physiotherapists

•

Senior physiotherapists

The following jobs in this occupation code are below NVQ or SVQ level 3:

•

Physiotherapy assistants

•

Technical instructors.”

After this review of the legislation and related materials, I must now turn to the facts.

The appellant is a citizen of Pakistan, who was born on 5^th November 1977. In September 2003 the appellant entered the UK as a student, with leave to remain until 31^st January 2005.

After completing his studies, the appellant applied to remain in this country and work as a physiotherapy assistant. On the 10^th February 2005, pursuant to paragraph 128 of the Immigration Rules, the appellant was granted leave to remain as a work permit holder until 10^th February 2009. For the next four years the appellant duly lived in England and worked as a physiotherapy assistant. He was employed by Kensington Clinic in London W.8.

As outlined in Part 1 above, the new PBS came into operation during 2008. On 9^th February 2009 the appellant applied for leave to remain in the UK as a Tier 2 (General) Migrant. The appellant’s employers, Kensington Clinic, duly provided a certificate of sponsorship in support of the appellant’s application. There may possibly have been a technical defect in that original application. Following correspondence between the appellant’s solicitors and the Secretary of State, very sensibly it was agreed that the appellant’s revised application dated 18^th March 2009 would be treated as the relevant application. In this revised application the appellant gave the following information about his occupation:

“Job title: Assistant Physiotherapist

Job type: 3221 Physiotherapists

Summary of job description: Undertake support work to Physiotherapist, to aid the rehabilitation of patient, to manage own caseload; assist with the dictation notes to the patients etc… ”

By letter dated 18 June 2009 the Secretary of State refused the appellant’s application, stating the following reasons:

“You have claimed 50 points under certificate of sponsorship, but the Secretary of State is not satisfied that the salary you will be paid is at or above the appropriate rate for a job at NVC level 3 or above, as stated in the guidance published by the UK Border Agency, therefore this invalidates the certificate of sponsorship.

Therefore you do not satisfy the requirements of the immigration rules for this category and it has been decided to refuse your application for leave to remain as a Tier 2 (General) Migrant under paragraph 245ZF(e) of the Immigration Rules.”

The appellant was aggrieved by that refusal. Accordingly he commenced the present proceedings.

By a claim form issued in the Administrative Court on 21^st September 2009, the appellant applied for an order quashing the Secretary of State’s decision dated 18 June 2009 and for a declaration that the appellant was entitled to remain in the UK as a Tier 2 (General) Migrant. In his claim form the appellant contended that he satisfied the points requirements of rule 245ZF(e). The appellant also contended that the Secretary of State’s reliance on published guidance not included in the Immigration Rules was unlawful.

The Secretary of State responded to the appellant’s claim by issuing a fresh decision letter dated 9 February 2010. The Secretary of State maintained his original decision, but stated that his reasons for that decision were as follows:

“You have claimed 50 points under certificate of sponsorship, but your clients job title stated on the application form and Certificate of Sponsorship as Assistant Physiotherapist does not meet as a job role that is above NVQ or SVQ level 3. The codes of practice document at the time of the application stated that this job role is below N/SVQ level 3. You have therefore not been awarded any points under certificate of sponsorship.

Therefore you do not satisfy the requirements of the immigration rules for this category and it has been decided to refuse your application for leave to remain as a Tier 2 (General) Migrant under paragraph 245ZF(e) of the Immigration Rules.”

The appellant took the view that the Secretary of State’s substituted decision was flawed for the same reasons as the original decision. Accordingly the appellant maintained his judicial review claim.

In supporting his substituted decision and resisting the appellant’s claim, the Secretary of State placed reliance on the List of Skilled Occupations which UKBA had published on 28 November 2008 by placing it on its website. The Secretary of State argued that the appellant could not meet the requirements of paragraph 82(a)(i) of Appendix A to the Immigration Rules, because the appellant’s occupation as an Assistant Physiotherapist was not included in the List.

The appellant advanced two separate arguments in support of his judicial review challenge, which may be summarised as follows:

The judicial review claim came on for hearing before Lord Carlile of Berrriew Q.C., sitting as deputy High Court judge, on 25 October 2010. The judge did not expressly deal with the appellant’s first argument, but by implication he rejected it. In relation to the appellant’s second argument the judge held that the List was not an intrinsic part of the Immigration Rules and it did not require Parliamentary approval. The judge distinguished the Court of Appeal’s decision in Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719; [2011] QB 376. Accordingly the judge rejected the appellant’s second argument and dismissed the claim for judicial review.

The appellant was aggrieved by the dismissal of his claim. Accordingly he appeals to the Court of Appeal.

The appellant appeals to the Court of Appeal (with the permission of Sullivan L.J.) on the same two grounds that he argued below.

The appellant contends, first, that he satisfies the requirements of paragraph 83 of Appendix A to the Immigration Rules. Therefore he does not need to satisfy the requirements of paragraph 82.

Secondly, and in the alternative, the appellant argues that if paragraph 82 of Appendix A is applicable, it does not shut out his application. The basis of this argument is that the Secretary of State is not entitled to rely upon the List of Skilled Occupations referred to in paragraph 82(a)(i), because that List does not form part of the Immigration Rules.

I must now address these issues separately, starting with the first ground of appeal.

Paragraphs 59 to 84 of Appendix A to the Immigration Rules are set out in Appendix A to this judgment. Their general structure is as follows.

In order to qualify as a Tier 2 (General) Migrant a person must, amongst other requirements, score 50 points for attributes. Applicants for leave to enter or leave to remain may acquire points under three headings, namely “Sponsorship”, “Qualifications” and “Prospective Earnings”. The points which may be scored for different categories of “Sponsorship”, different categories “Qualification” and different categories of “Prospective Earnings” are set out in Tables 10 and 11. The notes which follow each table are divided into groups headed “Sponsorship”, “Qualifications”, and “Prospective Earnings”. Some of the notes to table 10 are incorporated by reference into the notes to Table 11.

When paragraphs 59 to 84 of Appendix A are read as whole, their inter-relationship is clear. It can be seen that paragraphs 81 to 83 comprise notes which explain the three categories of Sponsorship set out in Table 11. Paragraphs 81 and 82 relate to all three categories of Sponsorship in Table 11. Paragraph 83 on the other hand relates only to the first category, namely transitional arrangements.

The provisions in Appendix A are not light reading and they require perusal more than once before their meaning becomes clear. However, once the reader has studied these provisions and the cross references or links between them, there is no ambiguity. There is no need to have recourse to jurisprudence on ambiguous legislation. Nor is it necessary to recite earlier judicial comments about how to construe the Immigration Rules. It is abundantly clear that paragraphs 81 and 82 of Appendix A apply to all applicants who are seeking to accumulate points for Sponsorship under Table 11. The fact that an applicant falls within the first category, namely transitional arrangements, does not exempt him from the requirements of paragraph 81 or paragraph 82.

For the above reasons, in my view the first ground of appeal should be dismissed. I must now turn, therefore, to the appellant’s second, and alternative, ground of appeal.

In Pankinav Secretary of State for the Home Department [2010] EWCA Civ 719; [2011] QB 376, the Secretary of State relied on paragraph 2 of Appendix C of the Immigration Rules. This paragraph required that an applicant for leave to remain and work in the UK should have £800 and should provide the documents specified. The rule then added “and must also have had those funds for a period of time set out in the guidance specifying specified documents for that purpose.” (Those words are not quoted in the judgment in Pankina. However, they are quoted in paragraph 57 of the judgment of Mr Justice Burton in The Queen on the Application of the Joint Council for the Welfare of Immigrants v Secretary of State for the Home Department [2010] EWHC 3524 (Admin).) During the period when Appendix C was laid before Parliament the Secretary of State published guidance which specified the documents to be provided. These were bank and building society documents showing that the applicant had held £800 continuously for 3 months. The Court of Appeal held that an applicant satisfied the requirements of Appendix C if he possessed £800 on the date of his application. The additional requirement to have held that money for a period of 3 months did not form part of the Immigration Rules and was not binding.

Sedley L.J., with whom Rimer and Sullivan LJJ agreed, gave the leading judgment. His reasoning was as follows. It can be seen from a review of legislative history that the rules made by Home Secretaries for regulating immigration have ceased to be policy and have acquired a status akin to that of law. The provisions of the Immigration Rules relied upon by the Secretary of State in Pankina were laid before Parliament on 9 June 2008. The guidance document, which the Secretary of State published shortly afterwards, purported to impose an additional requirement not mentioned in the rules, namely that the sum of £800 should be held for a period of 3 months. That additional requirement had not been subject to the process set out in section 3 (2) of the 1971 Act. Accordingly it could not be relied upon to shut out an applicant who otherwise satisfied the requirements of paragraph 2 of Appendix C to the Immigration Rules.

Sedley L.J. accepted that a statutory instrument may refer to “an extant and accessible outside source”. Thus in the field of Social Security a statutory instrument may fix benefits by reference to a directory separately published by the Secretary of State. But it is not possible for rules to supplement themselves by further rules derived from an extraneous source. Thus there were two objections to the additional requirement in Pankina. First that additional requirement had not been laid before Parliament for 40 days or made subject to the negative resolution procedure. Secondly, that additional requirement could be varied at the will of the Secretary of State. Sedley LJ observed at paragraph 29:

“It means that a discrete element of the rule is placed beyond Parliament’s scrutiny and left to the unfettered judgment of the rule maker.”

In The Queen on the Application of the Joint Council for the Welfare of Immigrants v Secretary of State for the Home Department [2010] EWHC 3524 (Admin) the Divisional Court held that limits imposed in May 2010 on the numbers of applicants who may enter or remain in the UK under Tier 1 (General) or Tier 2 (General) of the PBS were unlawful. Sullivan LJ, with whom Burton J. agreed, gave the leading judgment. Sullivan LJ noted that the proposed amendments to the Immigration Rules would give Parliament the power “not merely to determine the limits for Tier 1 and Tier 2 and incorporate those limits into the rules by cross reference to the UKBA website and PBS guidance in existence at the time, but also to be able thereafter to alter them at will by making such alterations to the website and/or the guidance as she saw fit”. Following Pankina, Sullivan LJ held that such a provision in the Immigration Rules would be of no effect. At paragraph 40 Sullivan LJ said:

“It would frustrate that statutory purpose if the Secretary of State was able to lay before Parliament a change in the rules, which said in effect, that the practice to be followed will be set out in guidance, or be published on a website, which the Secretary of State would be free to change from time to time at her discretion. Far from giving effect to the statutory purpose, such a rule would be a deliberate evasion of the statutory purpose: an attempt to place the exercise of ministerial discretion beyond the bounds of Parliamentary scrutiny as required by the 1971 Act.”

I should also set out paragraph 43 of Sullivan LJ’s judgment, since that paragraph has been the subject of some debate in the present appeal. At paragraph 43 Sullivan LJ said:

“I readily accept that there is a spectrum and that in enacting section 3 (2) Parliament did not intend that every alteration to the Secretary of State’s practice, however minor should be subject to the scrutiny of Parliament. It is unnecessary to consider the precise point in the spectrum at which Parliamentary scrutiny is not required because the quantification of the limits on the number of applicants who may be as admitted under Tier 1 and Tier 2 is, on any basis, at the very top end of the spectrum. Alterations to the limits of those who may be permitted to enter under Tiers 1 and 2, whether the limits are 6, 60, 600 or 6,000 per month or per year are precisely the kinds of substantive changes that should be laid before Parliament. They are most certainly to be equated with UKBA’s list of skilled occupation which are very much at the other end of the spectrum.”

Against that background let me now turn to the facts of the present case. The relevant provision is paragraph 82 of Appendix A to the Immigration Rules. This provides that no points will be awarded for sponsorship unless the proposed job appears on the List of Skilled occupations. This list was published on UKBA’s website 24 days after Appendix A was laid before Parliament. Furthermore the List was capable of being amended by the Secretary of State. Despite the observations of Sullivan LJ in the last sentence of paragraph 43 of Joint Council for the Welfare of Immigrants, I can see a case for saying that the specification of specific jobs as falling within the paragraph 82 (a)(i) is a “substantive” matter rather than a “minor” alteration to the Secretary of State’s practice. It is not, however, necessary to explore this question. In my view there can be no doubt that the governing principle set out in the List is a substantive matter. This governing principle is that all jobs which qualify under section Q are at or above NVQ or SVQ level 3. Following the reasoning in Pankina, in my view that governing principle is a requirement which must be set out in the Immigration Rules if it is to be valid.

Although not relevant to the present case, it should be noted that an amendment was subsequently made to paragraph 82 (a) (i) of Appendix A to meet this very point which I have identified. In July 2010 the following amendment was made to paragraph 82 (a)(i) of Appendix A to the Immigration Rules: the phrase “skilled occupations” was deleted and in its place there was substituted the phrase “occupations skilled to National Qualifications Framework level 3”.

Anticipating that the court may reach this conclusion, Mr Hall, for the Secretary of State, has developed a fall-back argument. This argument is that the threshold of NVQ or SVQ level3 is not a new requirement. It has always formed part of the requirements for obtaining a Home Office work permit under paragraph 128 of the Immigration Rules: see the general guidance which the Home Office issued to case workers and to employers.

In my view this argument cannot succeed. The general guidance issued to case workers and employers did not have the character of legal rules. Furthermore, in 2008 it remained to be seen whether the new PBS rules would retain or depart from the previous practice in that regard. The existence of certain general guidance prior to November 2008 did not relieve the Secretary of State of the obligation to specify the threshold for skilled occupations in paragraph 82(a)(i) of Appendix A.

Let me now draw the threads together. For the reasons set out above, in my view the appellant succeeds in his challenge to the Secretary of State’s decision dated 18 June 2009 and substituted decision dated 9 February 2010. The Secretary of State cannot rely upon the fact that the job of physiotherapy assistant is below the NVQ level 3 in order to treat the certificate of sponsorship issued by the Kensington Clinic as invalid. I would therefore allow the appellant’s appeal and make an order quashing the Secretary of State’s decision.

I agree

I also agree that this appeal should be allowed for the reasons given by Jackson LJ.

An applicant applying for entry clearance or leave to remain as a Tier 2 (General) Migrant or as a Tier 2 (Intra-Company Transfer) Migrant must score 50 points for attributes.

Subject to paragraph 61, available points for entry clearance or leave to remain are shown in Table 10.

Available points for leave to remain are shown in Table 11 for an applicant:

who is a Senior Care Worker or an Established Entertainer.

Notes to accompany Table 10 and Table 11 appear below the respective tables.