Government cannot rely on immigration "list of skilled occupations", Supreme Court rules

A written ministerial statement (296-page / 1.2MB PDF) was laid before Parliament on Thursday outlining a number of changes to the Immigration Rules. The changes will take effect from 20 July.

"The changes will not affect the way we consider applications," the UK Border Agency (UKBA) said in a statement. "They support our ongoing work to simplify the immigration system and ensure that existing policy and guidance is transferred into the Immigration Rules where necessary."

A Supreme Court judgment (48-page / 171KB PDF) on Wednesday held that the list of skilled occupations that are considered to provide qualifying points did not form part of the Immigration Rules, as it was contained in a document that had not been laid before Parliament.

The PBS was introduced in 2008 to replace the existing work permit system. Migrants from outside the European Economic Area (EEA) must be able to demonstrate that they possess certain attributes before they can get permission to enter or remain in the UK. Points are awarded for various attributes under each category or 'tier' which can include age, prospective earnings, qualifications and English language ability.

Hussain Alvi, a Pakistani national, had been refused leave to remain in the UK after the PBS system came into force as his job as a physiotherapy assistant did not meet the level of skilled occupation required for the purposes of the Tier 2 (General) route. He came to the UK in 2005 as a student and was granted leave to remain under the previous permit system. The relevant code of practice document, published by the Home Secretary on the UKBA website, states that in order to qualify the job must need a qualification above NVQ or SVQ level 3.

The Immigration Rules state that no points will be awarded under the system unless the job in question appears on the list, and that the worker will be paid at a rate at or above the appropriate rate for the job as stated in that list. In some cases, a sponsoring employer must also be able to prove that it has met the requirements of the resident labour market test as set out in UKBA guidance.

In his leading judgment, Lord Hope said that the Home Secretary did not have the power to control immigration other than through the means set out in the Immigration Rules.

"The rules are not subordinate legislation," he said. "They are therefore to be seen as statements by the Secretary of State as to how she proposes to control immigration. But that scope of the duty is now defined by the [Immigration Act]. The obligation under [the Act] to lay statements of the rules, and any changes in the rules, cannot be modified or qualified in any way by reference to the common law prerogative [to control immigration]. It excludes the possibility of exercising prerogative powers to restrict or control immigration in ways that are not disclosed by the rules."

He added that the Home Secretary could certainly refer to outside documents, such as guidance, if necessary; but that that practice would be "objectionable if it enables the Secretary of State to avoid her statutory obligation to lay any changes in the rules before Parliament".

"The introduction of the points-based system has created an entirely different means of immigration control," he said. "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 level of qualification was "a criterion which must be satisfied", the Home Office could not pass it off as 'guidance', he explained. Changes to guidance, which is also included within the Codes of Practice on the UKBA website, need not necessarily be laid before Parliament, he added.