The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as regards the granting of concessions outside the immigration rules and of their subsequent withdrawal amount to statements as to ‘the practice to be followed’ within the meaning of section 3(2) of the 1971 Act which she must, therefore, lay before Parliament.
Held: The appeals failed.
The Immigration Rules are made under the 1971 Act, and not by virtue of the Royal prerogative. Section 3(2) required the Sectretary of State to ‘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 etc’, the purpose of which was to ensure a measure of control for Parliament. However, the Secretary of State retained a discretion as to the application of rules in particular circumstances. Where a policy gave only limited discretion, it risked becoming a rule, and subject directly to the Act. This policy however remained so flexible as to fall short of being a rule. It lawful
Lord Hope, Deputy President, Lord Walker, Lord Clarke, Lord Dyson, Lord Wilson
[2012] UKSC 32, UKSC 2011/0183, [2012] 1 WLR 2192, [2012] WLR(D) 213
Bailii, Bailii Summary, SC Summary, SC
Immigration Act 1971 1(4) 3(2)
England and Wales
Citing:
Cited – Director of Public Prosecutions v Bhagwan HL 1972
Under s 3 of the 1962 Act and paras 1 and 10 of Sch 1, a Commonwealth citizen to whom the Act applied landing in the United Kingdom from a ‘ship’ (as widely defined) or an aircraft could within 24 hours of his landing be required by an immigration . .
Cited – Attorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .
Cited – Odelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
At first instance – Abbassi and Others, Regina (on The Application of) v Secretary of State for The Home Department Admn 12-Nov-2010
Each claimant sought judicial review of a decision of the respondent to refuse them leave to remain. They said that when deciding whether to grant leave, the defendant should have afforded the claimants the benefit of the Secretary of State’s seven . .
Disapproved – Regina v Secretary of State for the Home Department, Ex parte Rajinder Kaur CA 1987
The court considered a provision requiring refusal of leave to enter if there was no entry clearance.
Held: Such a mandatory rule was intra vires, the Secretary of State retaining a discretion outside the 1971 Act. Glidewell LJ said: . .
Appeal from – Secretary of State for The Home Department v Rahman CA 15-Jul-2011
Several claimants challenged the withdrawal by the respondent of the seven year child concession policy, under which families who did not have leave to be in this country, but with children who had been in this country for 7 years were, save in . .
Cited – Regina v Secretary of State for the Home Department, Ex parte Ounejma 1989
. .
Cited by:
Cited – Alvi, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of . .
Cited – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department SC 17-Jul-2013
The Court was asked as to: ‘the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points-based system of immigration control.’ The appellant’s license to sponsor . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .
Lists of cited by and citing cases may be incomplete.
Immigration, Constitutional
Updated: 01 November 2021; Ref: scu.462946