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Supreme Court strikes down 'unlawful' immigration policies

18 July 2012

In a landmark decision today, the Supreme Court has unanimously ruled that a significant part of the UK Border Agency’s practice and policies for corporate immigration are unlawful because they were not laid before Parliament as required by the Immigration Act 1971. Instead, they were simply set out in governmental “Guidance” documents and other documents external to the Immigration Rules, rendering them unlawful.

In a landmark decision today, the Supreme Court has unanimously ruled that a significant part of the UK Border Agency’s practice and policies for corporate immigration are unlawful because they were not laid before Parliament as required by the Immigration Act 1971. Instead, they were simply set out in governmental “Guidance” documents and other documents external to the Immigration Rules, rendering them unlawful.

The Court has determined that the UK Border Agency’s requirements as set out in the codes of practice and the standard occupational classification scheme (including salary levels, skill levels, advertising requirements etc) cannot be relied upon for refusal of an employer’s application for a work permit, or for visa applications by employees.  As the law currently stands, employers and employees will not be bound by any mandatory requirements that are not set out in the Immigration Rules themselves, which are only a small proportion of the overall criteria previously used to decide an applicant’s immigration status.

The ruling will also prove to be a significant obstacle to the UK Border Agency’s recent controversial attempts to only permit British citizens to be joined in the UK by their foreign spouses if they are earning a salary of at least £18,600.

Shahram Taghavi, deputy head of immigration at Lewis Silkin LLP and a lead adviser junior counsel in the case, comments:

“Today’s ruling will have a profound impact upon the current corporate immigration system, and effectively represents a wholesale collapse of the legal framework for immigration policy in the UK. This decision will no doubt reverberate loudly and widely, given the sheer number of cases on related matters winding their way through the Courts at present. Had the Home Office and Secretary of State elected to pursue changes to immigration in the proper way – through Parliamentary review and scrutiny – it is clear that this chaotic situation could have been avoided.

“At the very least, today’s ruling will hopefully send a clear message to the UK Border Agency and the Home Office that the corporate immigration system has become far too complex and unmanageable, representing a tremendous burden for employers and employees alike, and that their attempts to circumvent proper Parliamentary oversight have been soundly rejected.

“A wholesale revamp of the system is now the only way forward, incorporating all mandatory requirements into the Immigration Rules. Only then will both the clarity and legality of the UK’s immigration policies be assured.”

Lewis Silkin, acting on behalf of the Joint Council for the Welfare of Immigrants, was the lead party opposing the Secretary of State for the Home Department’s appeal to the Supreme Court.

For more information please contact Mark Grant.

Mark Grant
Director of Business Development
Tel: 020 7074 8226
Email: mark.grant@lewissilkin.com

 

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