Back to top
News In Focus

Supreme Court strikes down immigration qualifying job list

19 July 2012

Urgent action to restore the current points-based immigration system for non-EU nationals has been promised by the UK Government following a ruling yesterday by the UK Supreme Court that essential documents could not be relied on.

Five judges ruled that the list of skilled occupations that are held to provide qualifying points did not form part of the Immigration Rules as it had not been laid before Parliament as required by s 3(2) of the Immigration Act 1971.

The court upheld a decision by the Court of Appeal in favour of Hussain Alvi, a Pakistani national who had been working in this country as a physiotherapy assistant but who was refused leave to remain after the current rules came into force, because his job did not appear on the UK Border Agency's list of skilled occupations, not being at or above NVQ or SVQ level 3. He therefore failed to qualify as a tier 2 general migrant.

The list of skilled occupations is found in occupation codes of practice published by the Secretary of State on the UKBA website. In some cases, the migrant must also indicate that the sponsor
has met the requirements of the resident labour market test, as defined in guidance published by UKBA. Mr Alvi sought judicial review of rhe decision on the ground that the Home Secretary had not complied with the 1971 Act when the rules were introduced in 2008.

In ruling on the appeal the court first rejected an argument for the Home Office that it was open to the Secretary of State to control immigration at common law under the royal prerogative. The scope of her duty was now defined by the Act, it said, and any changes in the rules could not be modified or qualified in any way by reference to the common law.

It also recognised that previous cases did not make it entirely clear as to what should count as a "rule" that required to be laid before Parliament. Lord Hope, giving the leading judgment, said the Act itself recognised that instructions to immigration officers were not to be treated as rules, and what was simply guidance to sponsors and applicants could be treated in the same way. "It ought to be possible", he continued, "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."

Material in the codes, the judges said, which was not just guidance, but detailed information the
application of which would determine whether or not the applicant would qualify, and containing any requirement which, if not satisfied, would lead to an application being refused, was a rule within the meaning of s 3(2).

That test applied to the statements in the code that all qualifying jobs must be skilled at NVQ or SVQ level 3 or above, and that the job of a physiotherapy assistant was below that level. As they were not laid before Parliament, it was not open to the Secretary of State to rely on them as part of the Immigration Rules.

The court added that the salary tests would also count as rules, and the majority considered that the rules requiring a certain level of advertising to satisfy the "resident labour market" test would also do so.

Concluding, the judges commented that the volume of material that would now require to be considered would place a "heavy burden" on Parliament, and questioned whether the current system was still fit for purpose, but said that any changes to it had to be a matter for Parliament.

A Home Office spokesperson said: "We will act quickly to ensure the requirements of this judgment are met and that the necessary guidance is transferred into the Immigration Rules."

Click here to access the judgments.

Have your say