Miah v Secretary of State for the Home Department

This is the second part of an appeal by Md Argu Miah (“the appellant”), his wife and child, against the dismissal by the Upper Tribunal (Immigration and Asylum Chamber) of their appeal against the determination of the First-Tier Tribunal dismissing their appeal against the decision of the Secretary of State for the Home Department (“the Secretary of State”) refusing the appellant’s application for further leave to remain in the United Kingdom as a Tier 2 (General) migrant. The first part of the appeal dealing with the so-called “near-miss” argument was dismissed in a decision of this court dated 7 March 2012 [2012] EWCA Civ 261; [2012] 3 WLR 492. The court adjourned the second part of the appeal pending a decision of the Supreme Court in R (Alvi) v Secretary of State. Judgment was delivered on 18 July 2012 ([2012] UKSC 33; [2012] 1 WLR 2208). The submission adjourned was the submission that the system of granting work permits was unlawful as being outside the Immigration Rules and that the appellants were entitled to remain. For the appellant, Mr Malik now relies on statements in Alvi.

The facts were set out by Stanley Burnton LJ in the earlier decision of this court:

“Mr Miah is a citizen of Bangladesh, as are his wife and child. On 26 July 2005 he was granted an entry clearance as a work permit holder for five years, until 26 July 2010. He arrived in the United Kingdom on 23 September 2005. On 23 July 2010 he applied for further leave to remain as a Tier 2 (General) Migrant. On the expiry of his leave to enter the UK, his leave to remain in this country was continued by section 3C of the Immigration Act 1971, pending the determination of his application. The Secretary of State refused the application on 1 September 2010. Her decision letter included a notice served under section 120 of the Nationality, Immigration and Asylum Act 2002. On 14 September 2010 the appellants filed a notice of appeal to the First Tier Tribunal (Immigration and Asylum Chamber) and made a one-stop statement under section 120 relying on paragraph 134 of the Immigration Rules and the family's Article 8 Convention rights.

By its determination dated 1 December 2010 the First Tier Tribunal dismissed the appeal in so far as the appellants relied on paragraph 134 and Article 8. The appellants appealed to the Upper Tribunal. Designated Immigration Judge J F W Phillips dismissed the appeal, holding that Mr Miah did not meet the requirements of paragraphs 128 and 134 of the Immigration Rules because he had not held a work permit for the requisite 5 years, and that there had been no error of law in the consideration of the Article 8 claim by the First Tier Tribunal.”

The present issue was not raised by the appellant either in the First Tier Tribunal or in the Upper Tribunal. On 15 November 2011, Laws LJ granted permission to appeal on whether “the requirement to hold a work permit under paragraph 128(i) of the Immigration Rules was legally ineffective because it imported a criteria or mechanism which was itself wholly a creature of Ministerial discretion outside the Rules and that is impermissible.”

The submission is that the requirement stipulated in paragraph 128(i) of the Immigration Rules to hold “a valid Home Office work permit” is invalid and is to be ignored. The applicant meets all valid requirements of paragraph 128, as required by paragraph 134(ii) of the Immigration Rules, and is entitled to indefinite leave to remain in the United Kingdom.

General principles as to right of abode are stated in section 1 of the Immigration Act 1971 (“the 1971 Act”). Section 1(4) provides:

“The rules laid down by the Secretary of State 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 not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.”

Section 3(1) of the 1971 Act provides:

“where a person is not a British citizen, he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of the 1971 Act; and he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period.”

Section 3(2) provides:

“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 a 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).”

Comprehensive rules have been made by the Secretary of State, and amended from time to time, in accordance with that procedure.

Paragraph 134 of the Immigration Rules (HC395) sets out the requirements for indefinite leave to remain for a work permit holder. It provides, in so far as is material:

“Indefinite leave to remain may be granted on application to a person provided:-

(i)

he has spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a work permit holder (under paragraphs 128 to 133 of these rules), and the remainder must be any combination of leave as a work permit holder or leave as a highly skilled migrant (under paragraphs 135A to 135F of these rules) or leave as a self-employed lawyer (under the concession that appeared in Chapter 6, Section 1 Annex D of the Immigration Directorate Instructions), or leave as a writer, composer or artist (under paragraphs 232 to 237 of these rules);

(ii)

he has met the requirements of paragraph 128(i) to (v) throughout his leave as a work permit holder, and has met the requirements of paragraph 135G(ii) throughout any leave as a highly skilled migrant….”

Paragraph 135 of the Immigration Rules provides:

“. . . indefinite leave to remain in the United Kingdom for a work permit holder is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 134 is met.”

Paragraph 128 of the Immigration Rules sets out the requirements for leave to enter for work permit holders. It 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:

(i)

holds a valid Home Office work permit; and

(ii)

is not of an age which puts him outside the limits for employment; and

(iii)

is capable of undertaking the employment specified in the work permit; and

(iv)

does not intend to take employment except as specified in his work permit; and

(v)

is able to maintain and accommodate himself and any dependants adequately without recourse to public funds; and

(vi)

in the case of a person in possession of a work permit which is valid for a period of 12 months or less, intends to leave the United Kingdom at the end of his approved employment; and

(vii)

holds a valid United Kingdom entry clearance for entry in this capacity except where he holds a work permit valid for 6 months or less or he is a British National (Overseas), a British overseas territories citizen, a British Overseas citizen, a British protected person or a person who under the British Nationality Act 1981 is a British subject.”

In earlier manifestations of the Immigration Rules, the reference to a Government Department in Rule 128(i), or its predecessor, was to the Department of Employment. The change to Home Office was effected on 18 September 2001 (Cm 5253) and is not submitted to be material for present purposes.

Section 33 of the 1971 Act, the interpretation section, provides:

“‘work permit’ means a permit indicating, in accordance with the immigration rules, that a person named in it is eligible, though not a British citizen, for entry into the United Kingdom for the purpose of taking employment.”

Since 1981, successive Immigration Rules have included rules under the heading “Work Permit Holders” or “Work Permit Employment”.

In relation to the appellant, it has been held that he could not meet the requirements of paragraph 128(i) throughout his leave as a work permit holder, as he had not held a valid work permit from 26 July 2010 onwards (paragraphs 10-12 of Upper Tribunal determination).

The Upper Tribunal dismissed the appellant’s appeal because of its conclusion that the appellant does not meet the requirements of paragraph 128(i) of the rules, read with paragraph 134(ii). That required the appellant to demonstrate that he had held a valid Home Office work permit throughout his leave to remain as a work permit holder. It is accepted that the appellant did not meet that requirement.

The rules for granting leave to enter or remain to non-EEA Economic migrants were overhauled in 2008. The system for granting work permits, which came into operation following the 1971 Act, and had been operated for many years, was replaced by a points-based system. However, paragraphs 128 and 134 remain effective to enable those who complete 5 years on work permits to apply for indefinite leave to remain. It is submitted that the requirement to hold a Home Office work permit is invalid because the criteria for eligibility for a work permit have not been laid before Parliament as required by section 3(2) of the 1971 Act.

The appellant applied, in additional grounds, for indefinite leave to remain under the new system but failed to obtain the requisite number of points. That was conceded at the First Tier hearing. On appeal to the Upper Tribunal, it was held that the claim under paragraphs 128 and 134 failed because the appellant had not held a valid work permit from 26 July 2010 onwards. The criteria for eligibility for a work permit did not themselves appear in the Immigration Rules but were contained in guidance leaflets issued by Work Permits UK, for the Home Office. The leaflets, the contents of which could be varied at any time by the Department without notice or consultation, identified the requirements.

The work permit scheme was invalid, Mr Malik submitted, because the criteria for eligibility had not been laid before Parliament as required by section 3(2) of the 1971 Act. As a result, the requirement to hold a work permit in order to qualify for indefinite leave to remain was ineffective in law. Rules 128, 134 and 135 should be read as if the requirement to hold a work permit did not appear in those rules. Since the appellant met the other requirements, he must be granted indefinite leave to remain. The issue, submitted Mr Malik, is whether the criteria for obtaining a work permit are rules within the meaning of section 3(2) of the 1971 Act.

Mr Malik referred to the commentary on the work permit scheme in Macdonald’s Immigration Law and Practice, 5^th Edition 2001. It was stated:

“The work permit scheme is a valid manifestation of policy, similar to Home Office concessions outside the Immigration Rules.” (10.34)

It “does not have the strong statutory endorsement of the Immigration Rules generally” (footnote to 10.34). The learned author added that “a work permit scheme comprising a complex of policies notified primarily by guidance notes is not per se unlawful”. (10.35)

Sub-paragraphs (i), (iii), (iv) and (vi) of paragraph 128 all include a reference to a work permit and should be struck out as invalid, it was submitted. Provided (ii) (age) and (v) (support himself) are satisfied, the applicant is entitled to stay.

Alvi, on which Mr Malik relies, was concerned with the new points-based system. New paragraphs 245ZB-245ZH, which relate to Tier 2 migrants, were inserted into the Immigration Rules. Also an Occupational Code of Practice (“OCP”) was published on the UK Border Agency’s website (for the Secretary of State) on 17 September 2008. It was not laid before Parliament. It gave guidance to sponsors and listed the occupations which were recognised as sufficiently skilled to qualify under Tier 2. The list of skilled occupations was not part of the Immigration Rules and the submission was that the guidance should have been laid before Parliament, as required by section 3(2) of the 1971 Act.

It was held that the Immigration Rules should include all provisions which set out criteria which were or might be determinative of an application for leave to enter or remain. That principle applied to any requirement which a migrant had to satisfy as a condition of being given leave to enter or remain. The statements in the OCP ought to have been laid before Parliament under section 3(2). It was also held, by a majority, that the requirements as to advertising in specified newspapers, journals and websites were also rules within the meaning of section 3(2).

It is necessary to set out the findings of members of the Supreme Court in some detail. Considering the effect of the 1971 Act, Lord Hope, DPSC, at paragraph 30, stated: “the old order, under which such a sweeping power could be exercised at will by the executive, is now long gone.” At paragraph 32, Lord Hope stated:

“The powers of control that are vested in the Secretary of State in the case of all those who require leave to enter or to remain are now entirely the creature of statute. That includes the power to make rules of the kind referred to in the 1971 Act.”

At paragraph 41, Lord Hope stated that the 1971 Act:

“. . . must now be seen as the source of the powers vested in the Secretary of State, and it is the Act which provides the statutory machinery for their exercise.”

It followed, held Lord Hope at paragraph 41, that:

“. . . everything which is in the nature of a rule as to the practice to be followed in the administration of the Act is subject to this requirement [The section 3(2) requirement].”

Having considered the test applied in other cases, Lord Hope stated, at paragraph 53:

“What they do reveal however is a variety of approaches, and the use of a variety of expressions, to determine where the line must be drawn in order to determine whether material in an extraneous document which is not set out expressly in the rules can validly be relied on to determine an applicant’s claim.”

Lord Hope added:

“54.

What Parliament was insisting on was that she [the Secretary of State] should lay her cards on the table so that the rules that she proposed to apply, and any changes that were made to them, would be open to scrutiny.

. . .

57.

I agree with Lord Dyson . . . that any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). A provision which is of that character is a rule within the ordinary meaning of that word. So a fair reading of section 3(2) requires that it be laid before Parliament.”

At paragraph 63, Lord Hope stated:

“It ought to be possible to identify from an examination of the material in question, taken in its whole context, whether or not it is of the character of a rule or is just information, advice or guidance as to how the requirements of a rule may be met in particular cases.”

He added, at paragraph 64:

“. . . the wiser course is to assume that everything that is contained in a rule-making document such as that which is before us in this case is caught by the requirement that section 3(2) sets out, and that any changes to any of the material that it contains must be laid before Parliament.”

Applying those principles to the facts in Alvi, Lord Hope stated, at paragraph 66:

“The statements in the Code that all qualifying jobs must be skilled at N/SVQ level 3 or above and that the job of a physiotherapy assistant is below that level both set out rules that ought to have been laid before Parliament under section 3(2) of the 1971 Act.”

Lord Dyson JSC, at paragraph 94, stated:

“But it seems to me that any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of section 3(2). That is what Parliament was interested in when it enacted section 3(2). It wanted to have a say in the rules which set out the basis on which these applications were to be determined.”

He added, at paragraph 95:

“We know that Parliament wanted to control the making of immigration rules. The most important rules are those by which applications for leave to enter and remain are determined. I see no reason to think that Parliament would not have been interested in having the opportunity to scrutinise the critical aspects of those rules, in particular the provisions which set out the criteria which determine the outcome of applications.”

Agreeing with Lord Hope and Lord Dyson, Lord Walker of Gestingthorpe JSC stated, at paragraph 118:

“At present the position is that these four general requirements (or such of them as are relevant in a particular case) are to be conclusively determined by a detailed code which has not been laid before Parliament, and which the Secretary of State can and does change from time to time as she thinks fit. For that reason the appeal must be dismissed.”

At paragraph 115, Lord Walker added:

“But the omission of a mandatory provision – that is, a condition which an applicant must satisfy if the application is to succeed – would be a serious defect.”

Mr Malik submitted that the requirement in paragraph 128(i) is, in substance, no different from the requirements impugned in Alvi. It is the applicant’s failure to satisfy the requirement of holding a work permit that will lead to the refusal of his application. The criteria for eligibility for a work permit should have been laid before Parliament, just as the specification of qualifying employments in Alvi. The failure to place the requirements before Parliament side-stepped and frustrated the scheme of the 1971 Act and was a deliberate evasion of the statutory purpose.

We have been supplied with a copy of the Home Office “Guidance notes for employers on how to apply for a Business and Commercial Work Permit”, effective in 2005, and following earlier guidance. It is very detailed, running to 215 paragraphs. The guidance notes were not laid before Parliament. The application for a work permit was to be made by an employer. Paragraph 6 provides:

“You can make a work permit application if you are an employer based in the UK and you need to employ a person to work here. You should make a work permit application for a named person to do a specific job for the employer, normally on a full-time basis. The person cannot transfer a work permit to a different job or to work for a different employer.”

Mr Malik submitted that, though the application was made by the employer, it was made on behalf of the employee.

For the respondent, Mr Swift QC relied on the decision of this court in R (New London College Ltd) v Secretary of State [2012] EWCA Civ 51 2012 PTSR Digest D22. Richards LJ, with whom Mummery LJ and Rimer LJ agreed, stated, at paragraph 48:

“. . . the substantive criteria governing entitlement to leave to enter or remain as a Tier 4 (General) Student are laid down in the rules which . . . are not supplemented or qualified by guidance. The fact that the rules include a requirement that the sponsor holds a sponsor licence is unobjectionable, just as the former requirement that the institution be included in the Register of Education and Training Providers was in my view unobjectionable. Whether the sponsor holds a sponsor licence does of course have an indirect effect on an applicant's entitlement, in that it affects his or her ability in practice to meet the criteria; and it follows that the criteria for the grant, suspension or withdrawal of a sponsor licence also have an indirect effect on an applicant's entitlement. Such criteria, however, are materially different from the substantive criteria for entitlement and do not affect the content of the substantive criteria.”

Mr Swift submitted that under the work permit system, the guidance notes can be treated in the same way. New London CollegeLtd was referred to by Lord Hope in Alvi at paragraphs 52 and 53. Lord Hope stated that he would make no comment as to whether the case was rightly decided but did comment that New London College Ltd,and other cases, reveal a variety of approaches “and the use of a variety of expressions, to determine where the line must be drawn in order to determine whether material in an extraneous document which is not set out expressly in the rules can validly be relied on to determine an applicant’s claim.” Permission to appeal to the Supreme Court has been granted in New London College Ltd. Mr Swift submitted that the reasoning in New LondonCollege Ltd is consistent with Alvi and supports the case for the Secretary of State in the circumstances of the present case.

Mr Swift, understandably, dealt first with what he submits follows if the appellant’s submission is correct that the references to work permits in paragraph 128 of the Immigration Rules are invalid. It would follow, he submitted, that the rule is inoperative and indefinite leave to remain could not be granted on an application of paragraphs 128 and 134. The references to work permit in paragraph 128 cannot be severed without changing the nature of paragraphs 128 and 134 and the Rule as it would emerge has not been laid before Parliament. The consequence of establishing the illegality of the work permit scheme would be to destroy the basis on which the appellant contends he is entitled to indefinite leave to remain. Mr Swift also referred to the distorting effect the appellant’s construction would have to the ‘long residence’ grant of indefinite leave to remain provided in paragraph 276B.

On the issue of invalidity, Mr Swift submitted that the criteria for obtaining a work permit are not integral to the paragraph 128 requirements. The relevant requirement is to hold a work permit and that is an objectively verifiable question of fact. The criteria are sufficiently remote from the immigration decision not to be included in the rules. How the employee obtains a work permit is an anterior question separate from the requirement itself. The requirement in paragraph 134 is for the period “to have been spent as a work permit holder”. Mr Swift also gave the example of a driving licence; if holding a licence were to be a requirement for obtaining a right under the Immigration Acts, it could not be expected that the requirements for obtaining a driving licence would be set out in the rules.

It was submitted that the work permit scheme was quite different from the points- based scheme now in force and considered in Alvi. Under the earlier scheme, the suitability of the employee depended on assessment and evaluation. It now depends on a hard-edged point scoring exercise. How the points are obtained is an integral part of the scheme and what Alvi establishes is that, where the criteria for points are set out, it must be done comprehensively.

In reply, Mr Malik submitted that the approach of Lord Dyson at paragraph 92 of Alvi had the effect of overruling New London College Ltd. Lord Dyson stated:-

“But for the reasons that I have given, I do not find that the suggested dichotomy between (i) a substantive requirement and (ii) the evidential means of meeting it is a satisfactory basis for deciding what is and what is not a rule within the meaning of section 3(2).”

No distinction can be made in this case, he submitted, between the substantive requirement for a work permit and the criteria for obtaining it (though I comment that the criteria for obtaining a work permit cannot quite be described as the “evidential means” of establishing one is held). What was described as “guidance notes”, it was submitted, must be treated as rules and were unlawful as not having been laid before Parliament. Mr Malik accepted that, if his submission is correct, all work permits issued between 1980 and 2008 were unlawful.

In my judgment, there was a fundamental difference between the work permit scheme and the points-based scheme now operating. That was acknowledged in Alvi by Lord Hope where he stated, at paragraph 42:

“The introduction of the points-based system has created an entirely different means of immigration control. The emphasis now is on certainty in place of discretion, on detail rather than broad guidance. There is much in this change of approach that is to be commended. But the rigidity and amount of detail that comes with it has a direct bearing on the scope for an appeal against a decision that is adverse to the applicant. As the content of the rules will determine the scope of any appeal under section 84(1)(a) of the 2002 Act, it is all the more necessary to achieve clarity as to what must be in the rules and what need not be.”

“Work permit” is defined in section 33 of the 1971 Act, set out at paragraph 11 above. It is defined in terms of eligibility, “in accordance with the immigration rules”, for entry. The 1971 Act did not provide, either in section 33 or elsewhere in the Act, criteria for the issue of work permits or specify who should provide them. A statement of Immigration Rules for control after entry was duly laid before Parliament by the Secretary of State on 23 October 1972 under section 3(2) of the 1971 Act (HC510). Rule 19 provided, under the heading “Work permit holders”:

“A person coming here to work, and having a work permit issued by the Department of Employment, will normally have been admitted for the period specified in the permit up to a maximum of 12 months. At the end of that period an extension of stay must be granted if the applicant is still engaged in the employment specified in the permit, or other employment approved by the Department of Employment, and the employer confirms that he wishes to continue to employ him. A corresponding extension shall be granted to the applicant’s wife and children, where appropriate. Cases where the applicant is no longer in approved employment should be considered in the light of all the relevant circumstances.”

Similar provisions referring to “a work permit issued by the Department of Employment” appear in rules laid before Parliament on 25 January 1973 (HC80) and in consolidated rules laid before Parliament on 20 February 1980 (HC394). Paragraph 26 of the 1973 rules empowered the Department of Employment to impose a condition in relation to change taking or changing employment. Similar provisions were made in rules laid before Parliament for control on entry.

Paragraph 122 of rules laid before Parliament on 23 March 1990 (HC251) provided:

“A person coming here to work, and having a work permit issued by the Department of Employment, will normally have been admitted for the period specified in the permit. Where a permit was issued for a period of other than 4 years, an application for an extension of stay in the employment for which the permit was issued should be referred to the Department of Employment. Only if that Department is prepared in the particular case to approve the continued employment may an appropriate extension of stay be granted. A corresponding extension should be granted to the applicant’s spouse and children, where the maintenance and accommodation requirements of paragraph 46 continue to be met. In cases where the Department of Employment refuses to continue to approve the applicant’s employment, an application for an extension of stay is to be refused. Other cases in which the applicant is no longer in approved employment should be considered in the light of all the relevant circumstances.”

(At that time the relevant period was 4 years rather than 5.)

Work permits were to be issued by the Department of Employment, an entity separate from the Home Office. Further, reference is made in the rules to that Department’s power to impose conditions and to applications for an extension of time being referred to the Department of Employment, giving it power to approve or otherwise, with the entitlement to an extension depending on the exercise of that power. I have already cited the relevant 1994 rules. I have also cited Cm 5253 which deleted references in the rules to Department of Employment and substituted Home Office but it is not suggested that the change altered the nature of a long-standing system. The 1972 Rules provided, as did subsequent Rules, that it was for the Department of Employment to issue work permits. That Department is of course the responsibility of a Secretary of State other than the Secretary of State upon whom the section 3(2) duty was imposed. Thus, from the start, the 1972 Rules laid before Parliament contemplated administration of the work permit system by a different entity.

Provision was not made in the 1971 Act itself for the grant of work permits. Section 33 contemplated that Immigration Rules would so provide. That expectation was fulfilled in 1972 and subsequently. Rules, duly laid before Parliament, provided that it was for the Department of Employment to issue work permits, where that Department considered appropriate. Provision was also made that it was for the Department of Employment to approve, or otherwise, the taking or changing of employment and to decide an application for an extension of stay. It appears to me that Parliament has thereby approved and allowed a work permit system under which it was for the Department of Employment to decide upon the criteria for the issue and continued effectiveness of work permits. While the criteria cannot be classified as mere advice, Parliament had permitted a system under which criteria for and changes to the system were the responsibility of a Department other than the Secretary of State for the Home Department, upon whom the duty under section 3(2) of the 1971 Act rested.

That is quite different from the points based system which replaced the work permit system and plainly contemplated that the detail would be specified in the rules. Once that requirement is present, the detail must be comprehensive, as found in Alvi. An entirely different means of immigration control has now been created, as Lord Hope stated in Alvi.

That being so, I accept the submission on behalf of the Secretary of State, summarised at paragraph 32 above, that the requirements for obtaining indefinite leave to remain are set out in the rules. The relevant requirement is to have held a valid work permit. That is a question of fact. How to obtain a work permit is a separate and anterior question. The terms under which an employer may obtain a work permit were for the Department of Employment (later the Home Office) to decide and that was the consequence of rules laid before Parliament. It was not necessary, under the work permit system, to set out in the Immigration Rules the requirements decided upon by the Department of Employment for obtaining a work permit. The criteria for obtaining a work permit can legitimately be distinguished from the requirement in paragraphs 128 and 134 to have held a work permit.

I respectfully agree with the approach of Richards LJ, at paragraph 48 of New London College Ltd, in a different situation. Even if it was not apt to that situation, it is in my judgment apt to a decision under the now-replaced work permit system.

That the nature of the work permit system is as I have found it to be, is, in my view, reinforced by the consequences of Mr Malik’s submissions (if they are correct), which he has accepted. I would in any event dismiss the appeal on the ground that, on his basis, the appellant has no right to indefinite leave to remain. I accept the submission of Mr Swift, summarised at paragraph 31 above, that the consequence of establishing the illegality of the work permit scheme would be to destroy the basis on which the appellant contends he is entitled to indefinite leave to remain.

I would dismiss this appeal.

I agree with both judgments.

I also agree. The logic of Mr Malik’s argument, if correct, would lead to the following conclusions:

If, therefore, Mr Malik’s argument is right, this appeal must fail. But for the reasons given by Pill LJ it is not right. I, too, would dismiss the appeal.