Immigration Law – Governmental constraints over policies

British governments have less flexibility over immigration policy than they think. Their discretion to adapt policy to meet political expediency is limited by many legal constraints.

Discuss what these legal constraints are and how serious they are

There are many legal constraints on the British government as much as one would think that they have discretion to alter or make up immigration policy. These constraints can be both under national and international law such as the European Convention of Human Rights. This essay aims to discuss these legal constraints and the seriousness of each one.

The case of Alvi [2012] is of great constitutional significance. It held that changes to the immigration rules must be laid before Parliament which shows that the government has less flexibility than it thinks it does. In this case, the applicant was a citizen of Pakistan who had leave to remain in the UK under a student visa. Upon receiving a job as an assistant, he applied to extend his leave to remain but the Home Secretary refused the application on the ground that the claimant’s salary was inappropriate for a job at the required level of skilled occupations listed in the Occupation codes of practice and because his job title as assistant was not of the level of skill required by the Rules.

The issue arose as to whether the secretary of state could reach a decision without submitting the changes to Parliament first. This is an issue related to the extent to which legal constraints are placed on the government.

Under s 3(2) of the Immigration Act 1971, Parliament has set out an obligation to lay statements of the rules before Parliament. It also, as Lord Hoffman stated in the case of MO (Nigeria) [2009], excludes the possibility of exercising prerogative powers to restrict or control immigration in ways that are not disclosed by the rules. The enactment of this section shows that one of the legal constraints is a statutory control placed by Parliament over the government. The government could not rely on other sources such as the prerogative or guidelines and any exercise of a prerogative power in a manner or for a purpose which is inconsistent with the statute will be an abuse of power. It is not open to the secretary of state to control immigration in a way not covered by the Immigration rules in the exercise of powers under the prerogative assuming that there is no conflict with them.

Lord Hope, giving one of the leading judgements, stated in this case that it was common ground that the code of practice document which the home secretary referred to in the refusal letter had not been laid before Parliament. Therefore the Supreme Court unanimously dismissed the secretary of state’s appeal. This case shows the seriousness of such a constraint on governmental flexibility over immigration power. There will always be the Parliamentary overarching power to limit the government’s freedom and not to abuse their discretion.

Similarly refusal by the Home Office to follow an internal policy can amount to an abuse of power. In R (app of S and others) v SSHD [2000], Afghani refugees who forced a pilot to fly to Britain and sought asylum. The Secretary of State refused the claimants leave to enter the UK on either asylum or Human Rights grounds. The claimants’ appeal to an immigration panel against that decision was allowed on the grounds that to return them to Afghanistan would expose them to a real risk of harm contrary to Article 3 of the ECHR. The applicants were expected to get six months discretionary leave but nothing was heard from the secretary of state so the applicants applied for judicial review which was allowed. The secretary of state appealed.

The court dismissed the appeal concluding that it was not open to the Secretary of State to determine, without obtaining the necessary authority from Parliament, that someone in the position of the claimants could be kept or placed on temporary admission. It was beyond the powers of the Secretary of State to introduce a new category of ‘persons temporarily admitted’ of his own motion without Parliamentary sanction. This shows the lack of flexibility over immigration policy.

In the situation of an asylum seeker, whose status has not been decided yet, they have a right under the Refugee Convention 1951 Article 33 not to be expelled or returned to their country. Although an exception is available under sub-section (2), in most cases, the applicants would argue Human rights breach and this has satisfied the courts. This was clearly visible in the case of Chahal v UK [1996], which raised many points, one of which was in regards to Article 3 ECHR. The applicant was an Indian citizen who, upon his visit to India, was arrested and tortured due to conflicting political and religious views. He returned to the UK and began social movements which gave rise to suspicions of his connection to involvement in conspiracy to assassinate the Indian prime minister. The secretary of state decided to deport him because his continued presence in the UK was unconducive to the public good. The applicant however argued that this would violate his Article 3 rights of prohibition of torture, degrading and inhuman treatment because the Indian authorities are likely to torture him.

The court made clear that there needs to be a balance between protecting the rights of the individual and the general interests of the community. One of the reasons for the applicant’s deportation was of national security grounds which the court held could not justify exposing an individual to the risk of ill-treatment abroad. The court concluded that if the deportation order was executed this would give rise to a violation of Article 3 which shows that although the government needs to take care of the national security of the country but where there is a violation of Human Rights, the government’s flexibility in achieving this aim is constrained by Human Rights. Although the constraint is quite serious and fundamental in all jurisdictions, other case law reach a different conclusion which undermines this constraint over governmental power.

However, there has been a difference to cases where the applicants argued that it was a breach of their Article 8 rights which shows that the Human Rights constraints on the government’s discretion is not as serious as one may think. In the recent Supreme court judgement in Bibi [2015], the court took the view that although the guidance did place some restrictions on the applicant’s article 8 rights, it unanimously reached the decision that the rules were not incompatible with Article 8 but a solution needs to be reached in this matter. This shows that the government does have flexibility over immigration policy and although the ECHR must be complied with, there will be relative exceptions.

In this case, the appellants challenged the rule as to whether passing an English Language test before coming to live in the UK was valid. They argued that the rule itself is an unjustifiable interference with the right to respect for private and family life protected by Article 8 ECHR. It was held that it was sufficiently important to justify limiting the article 8 right and the provisions were rationally connected to that objective. Baroness Hale, however, recognise that there are likely to be a significant number of cases in which the present practice does not strike a fair balance as required by article 8. This does not mean that the rule itself has to be struck down. The appropriate solution would be to recast the guidance, to cater for those cases where it is simply impracticable for a person to learn English.

The importance of Article 8 is still recognised. The Universal Declaration of Human Rights of 1948 proclaimed that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the state.’ The respect for family life is guaranteed by the ECHR but it does not impose an obligation on the part of a state to respect the choice by married couples of the country of their matrimonial residence. The Supreme court concluded, however, that interference with the right must be proportionate, striking a balance between the interests of the individuals and the community as a whole. The policy was pursuing a legitimate aim and was necessary and proportionate. The court again stressed the wide discretion of the secretary of state which was shown in MM (Lebanon) v SSHD

In MM (Lebanon) v SSHD [2014], the Court of Appeal also reached a similar conclusion which shows the direction the courts are moving towards. The claimant sought judicial review to make changes to the Immigration Rules and in particular the gross annual income of at least £18,000. They argued that this was an unjustified interference with their Article 8 rights. The court held against this and decided that limiting Article 8 rights was justifiable and unobjectionable because such requirements were accorded with the economic well being of the country. In particular, the financial requirement  was to ensure that there was no recourse to public funds so that the public purse is safeguarded.

In conclusion, it is evident that there are some constraints on the government when reaching a decision in regards to immigration policy. The ECHR plays an important role as a constraint but the courts seem to follow most of the policies even where there is a limit to a Human right, especially in the case of an Article 8 right.

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