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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Billah, Re Application for Judicial Review [2010] ScotCS CSOH_64 (13 May 2010)
URL: http://www.bailii.org/scot/cases/ScotCS/2010/2010CSOH64.html
Cite as: [2010] CSOH 64, [2010] ScotCS CSOH_64

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OUTER HOUSE, COURT OF SESSION


[2010] CSOH 64

P633/09

OPINION OF LORD BRODIE

in the Petition of

MRS C R or B

Petitioner

For

Judicial Review of Immigration Rules 277 and 295AA

_______________

Petitioner: O'Neill QC, Caskie; Drummond Miller LLP

Respondent: Tyre QC, Haldane; Office of the Solicitor to the Advocate General

13 May 2010

The parties


[1] The petitioner is Mrs C R or B. The respondent is the Advocate General for
Scotland, appearing on behalf of the Secretary of State for the Home Department (the "Secretary of State").


[2] The petitioner is a
United Kingdom national whose date of birth is 17 February 1991. She is accordingly under the age of 21. She resides in East Lothian and therefore is present and settled in the United Kingdom. She is the mother of two children, born on 22 June 2007 and 11 November 2009 respectively. The father of her children is W B. His date of birth is 27 July 1978. He is a national of and resident in Pakistan.


[3] During October 2003 W B entered the
Republic of Ireland using a 6-month visit visa and then travelled to the United Kingdom where he remained. He met the petitioner in August 2006 and shortly thereafter commenced a relationship with her. During November 2008 the petitioner, W B and their child attended at an office of the Secretary of State in Glasgow with a view to regularising W B's immigration status. He was however detained by officers and removed to Pakistan. The petitioner then travelled to Pakistan and went through a ceremony of marriage to the petitioner on 10 December 2008. The petitioner then returned to the United Kingdom. The petitioner would claim to have visited W B in Pakistan on four occasions following his removal from the United Kingdom for periods ranging from 10 days to one month, taking her elder child with her on three of those trips and living with W B at the house in which he resides in Lahore.


[4] There is an issue as to whether the petitioner and W B are validly married. W B is or was married to R W. It is his and the petitioner's position that W B and R W were divorced by deed of divorce executed in
Pakistan on 3 July 2007 and that therefore he was free to marry on 10 December 2008. The validity of this divorce and therefore that of W B's remarriage are not accepted by the Secretary of State but the petitioner's position is that, for the purposes of this petition, this does not matter in that if she is not W B's spouse she is his unmarried partner.

The Immigration Act 1971 and the Immigration Rules
[5] As is provided by section 3(1) of
the Immigration Act 1971, where a person is not a British citizen (or a citizen of a member state of the European Union) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, the Act. Section 3(2) of the 1971 requires the Secretary of State to lay before Parliament from time to time statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in regulating the entry into and stay in the United Kingdom of persons required by the Act to have leave to enter. These are the Immigration Rules. The Immigration Rules make specific provision, inter alia, for a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner, et separatim the unmarried or same-sex partner of a person present and settled in the United Kingdom.


[6]
On 27 November 2008 the Secretary of State amended the Immigration Rules as they related to applications for leave to enter as a spouse or partner of a person present and settled in the United Kingdom. As amended by House of Commons Paper HC 1113, Rule 277 now provides:

"277. Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another if either the applicant or the sponsor will be aged under 21 on the date of arrival in the United Kingdom or (as the case may be) on the date on which the leave to remain or variation of leave would be granted."

The amended Rule 295AA now provides:

"295AA. Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter or variation of leave as an unmarried or same-sex partner if either the applicant or the sponsor will be aged under 21 on the date of arrival of the applicant in the United Kingdom or (as the case may be) on the date on which the leave to enter or variation of leave would be granted."

As appears from Immigration Rule 6, the expression "sponsor" in Rules 277 and 295AA means the person in relation to whom an applicant is seeking leave to enter or remain as their spouse, civil partner, unmarried partner, or same-sex partner.

The application for leave to enter


[7] On
19 March 2009, in Pakistan, W B applied for leave to enter the United Kingdom as the spouse of the petitioner. This application was refused by the Secretary of State's Entry Clearance Officer (the "ECO"), Islamabad, on 24 March 2009 in terms of a letter which is 6/1 of process. The petitioner then brought this petition seeking judicial review of the decision to refuse W B leave to enter, and of Immigration Rules 277 and 295AA. First orders were granted on 15 May 2009. Two first hearings have been fixed and discharged. The second discharge was occasioned by the Secretary of State indicating that the decision of 24 March 2009 was to be withdrawn. The decision of 24 March 2009 was withdrawn by letter dated 26 November 2009 with a view to the Secretary of State making a fresh decision on W B's application for Leave to Enter. By decision letter dated 16 February 2010 and received by the petitioner's agents on 19 February 2010 (6/8 of process), the ECO refused W B entry as a spouse or in a relationship akin to marriage. The decision letter includes the sentence: "Your representatives accept that your application cannot succeed by virtue of [the petitioner's] age" (the petitioner avers that her representatives accept no such thing but the sentence can be taken to reflect the view of the ECO).

The petition

[8] The petition called before me for a first hearing on
2 March 2010. The petitioner was represented by Mr O'Neill QC and Mr Caskie. The respondent was represented by Mr Tyre QC and Miss Haldane. Mr O'Neill explained that by way of her petition for judicial review the petitioner wished to challenge the compatibility of Immigration Rules 277 and 295AA with the petitioner's rights under the European Convention on Human Rights and, in particular, the proportionality of what the petitioner avers to be an interference with her enjoyment of family life, in contravention of article 8 or article 8 read with article 14 (by reason of discrimination on account of age). The issue was exactly the same in relation to each of the rules. If the petitioner is taken as being married to W B the applicable rule is Rule 277 and she has in all the circumstances, so she contends, title to bring this petition as his spouse. If she is not taken as being married to W B the applicable rule is Rule 295AA and it is her position that she has title to bring this petition as his unmarried partner. The remedies sought by the petitioner (as they came to be after amendment of the petition in the course of the hearing) were as follows:

(i) declarator that the terms of Immigration Rule 277 et separatim
Immigration Rule 295AA are, insofar as applied to the Petitioner, incompatible with the Petitioner's Convention rights of the Petitioner, particularly Article 8 et separatim, 8 and 14
; and for reduction of the said rules:

(ii) declarator that the decision of the Secretary of State received by the
Petitioner's agents on 19 February 2010 is therefore
contrary to the Convention rights of the Petitioner, particularly Article 8 et separatim, 8 and 14; and for reduction of the said decision;

(iii) payment of damages to reflect the Petitioner's loss of society with her
husband et separatim to constitute just satisfaction in the sum of £10,000;

(iv) the expenses of the petition;

(v) such other orders as may seem to the Court to be just and reasonable
in all the circumstances of the case.


[9] Mr O'Neill envisaged that it would be necessary to fix a second hearing in order to explore the justification put forward by the
Secretary of State. As foreshadowed by the averments in the petition, albeit not developed in the Answers, Mr O'Neill understood that the Secretary of State would argue that the recent amendment to the Immigration Rules, increasing the age of someone who could be an applicant or sponsor to 21 years, was justified as a means of reducing the number of forced marriages (on the view that there was a correlation between a potential spouse's young age and his or her susceptibility to being pressured into marriage). This raised the question of the proportionality of the measures being challenged. Oral evidence would require to be led and cross-examined. There were, however issues purely of law which could usefully to be dealt with at a first hearing. These were focused by the Secretary of State by his plea of no title to sue.


[10] Mr O'Neill's understanding of the proposed scope of the argument for the first hearing was confirmed by Mr Tyre. He proposed to seek dismissal on the basis that the issues that the petitioner sought to ventilate in this petition for judicial review were properly for the statutory appeal which W B could take to the First Tier Tribunal (Immigration and Asylum Chamber). Mr Tyre had not understood that the evidence on the question of proportionality was in dispute. A similar challenge had come before the English High Court in R (on the application of Aguilar Quila) v Secretary of State for the Home Department [2009] EWHC 3189 (Admin) where issues of proportionality had been canvassed. That case had been resolved by Bennett J in favour of the Secretary of State on the basis of witness statements rather than oral evidence. Having said that, Mr Tyre accepted that if, contrary to his submission, the petitioner had title to sue, and Mr O'Neill wished the opportunity to cross-examine the evidence put forward by the Secretary of State as justifying the age-related provisions in the rules then there would have to be a second hearing at which he could have the opportunity to do so.


[11] The parameters of the matter at for determination at the first hearing having been explained by counsel, I inquired whether it might be convenient for Mr Tyre to begin. Counsel thought not, preferring what is usual at the first hearing of a petition for judicial review: that the petitioner begins by setting out the basis upon which it is said that the remedy of judicial review is available. Mr O'Neill therefore began and addressed the court in his first speech. Mr Tyre responded. Both counsel made second speeches.

Submissions

Petitioner: first speech


[12] Mr O'Neill presented the submissions in his first speech under reference to a detailed Note of Argument and the submissions in his second speech under reference to a Supplementary Note of Argument. He began by drawing my attention to the statutory framework within which an immigration decision, such as the determination as whether a person should be granted leave to enter, fell to be made and might then be appealed by an unsuccessful applicant. The grant of leave to enter, as is required by section 3 of the Immigration Act 1971, was for the decision of the Secretary of State. The Secretary of State may lay down (and thereafter amend) rules as to the practice to be followed in the administration of the Act for regulating the entry into the United Kingdom of persons not having a right of abode but in the event of doing so must lay them before Parliament: 1971 Act sections 1(4) and 3(2). Where a person is refused entry clearance by not being granted leave to enter, he has a right of appeal in terms of section 82 of the Immigration and Asylum Act 2002. That appeal now goes to the First Tier Tribunal (Immigration and Asylum Chamber): the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010, SI 2010/21. The available grounds of appeal are those set out in section 84 of the 2002 Act. Among these is that the decision is not in accordance with immigration rules. In terms of section 86 (3), the Tribunal must allow an appeal where a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules) or if a discretion exercised in making a decision should have been exercised differently. Otherwise the Tribunal must dismiss the appeal. Thus, the Immigration Rules made by the Secretary of State are binding upon the Tribunal and must be applied. The Tribunal has no jurisdiction to inquire into either their vires or their compatibility with Convention rights. The Rules, like other subordinate legislation, are presumed lawful until pronounced to be unlawful: Boddington v British Transport Police [1999] 2 Act 143 at 155. While the Secretary of State has discretion to depart from the Immigration Rules in a particular case, the Tribunal cannot allow an appeal on the basis that the Secretary of State has declined to exercise that discretion. No more does the Tribunal have jurisdiction to consider the Secretary of State's exercise of his discretion in making and amending the Immigration Rules: Repeta v Secretary of State for the Home Department, Appeal TH/07850/2004, 14 December 2004 unreported; Pardeepan v Secretary of State for the Home Department [2000] UKIAT 00006;
R. v Immigration Appeal Tribunal ex. p. Secretary of State for Home Dept. [1992] Imm. A.R. 554; Choi v Secretary of State for Home Department 1996 SLT 590. In the circumstances this challenge to the Immigration Rules, being of its nature a public law attack upon the framework of the Secretary of State's decision, was an appropriate matter for the supervisory jurisdiction of this court. Moreover, the decision impugned affected a great many people in addition to the petitioner (Mr O'Neill offered an estimate of some 10,800 per annum). The matter could readily and speedily be resolved in the Court of Session. There was no material prejudice to the Secretary of State.


[13] Having reviewed the facts, Mr O'Neill explained the substance of the petitioner's complaint.
Because she is under 21 she is prevented by the terms of Immigration Rule 277 from sponsoring her husband in an application for a marriage visa to allow him to come and reside with her and their children and enjoy their married and family life in the United Kingdom. If it be the case that W B was not validly divorced from his first wife and that the petitioner and the father of her children are not lawfully married (which is denied by the petitioner) she is, in any event, prevented by the terms of Immigration Rule 295AA from sponsoring her partner in respect of a cohabitation visa to allow him to come and reside with her and their children and enjoy their common family life in the United Kingdom. There could be no doubt but that the petitioner's Convention rights are engaged in the circumstances of this case. The petitioner's inability so to sponsor the return of W B to the United Kingdom resulted in an interference with the petitioner's private and family life under and in terms of article 8. Reference was made to Sezen v The Netherlands (2006) 43 EHRR 621 at paragraph 49, and Khan v The United Kingdom, European Court of Human Rights, 12 January 2010. The level of interference required to bring article 8 into consideration is very low: VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5 at paragraph 24. While the State is entitled to control the entry of aliens into its territory, the removal of a person from a country where close members of his or her family are living may amount to an infringement of the right to respect for family life as guaranteed in article 8. Such interference will violate the Convention if it does not meet the requirements of paragraph 2 of article 8. It will therefore be necessary to determine whether any interference with family life has been "in accordance with the law" and "necessary in a democratic society". The best interests of children were of relevance. If any suggestion were to be made that the interference could be avoided by the petitioner residing with her husband in Pakistan that would constitute an interference with a private life built up over the 18 years during which she has resided in the United Kingdom. This life includes her relationship with her parents, extended family, friends, employment and home; and her position as an independent woman living in a society where her rights as such are generally respected. Reference was made to Boultif v Switzerland (2001) 33 EHRR 50, Üner v The Netherlands (2007) 45 EHRR 14 and Gulijev v Lithuania, European Court of Human Rights, 16 December 2008. Once it is accepted that the Rules had an impact upon and engaged the petitioner's Convention right, the onus of demonstrating that the legislation in question was proportionate to its avowed aim rests with the Home Secretary: R v Shayler
[2003] 1 AC 247.


[14] It was Mr O'Neill's contention that the petitioner was a victim for whom the statutory appeal available to W B did not provide a remedy. The petitioner could not, for example, join herself as a party to that appeal. In this regard Mr O'Neill commended what had been said by Lord Emslie in AXA General Insurance Ltd Petitioners 2010 SLT 179 at paragraphs 57 and 59. In its decision in Beoku-Betts v Secretary of State for the Home Department

[2009] 1 AC 115
the House of Lords had held that the immigration legislation allowed, indeed required, the appellate authorities, in determining whether an appellant's article 8 rights had been breached by a decision to deport, to take into account the effect of his proposed removal on all the members of his family unit. Once it was recognised that there was only one family life then, assuming the appellant's proposed removal would be disproportionate looking at the family unit as a whole, each affected family member was to be regarded as a victim. The right to respect for the family life of one person necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children, with whom that family life is enjoyed. The complaint which the petitioner made in the present application was that the Immigration Rules under challenge simply prevented the relevant decision-maker and any statutory appellate body from carrying out the necessary proportionality analysis of the decision refusing W B a marriage visa because the petitioner could not, because and only because she is 21, sponsor W B's application for leave. The issue in this judicial review therefore focused on the logically and legally prior question as to the validity of the scheme of regulation under which the respondent was purporting to act.


[15]
Mr O'Neill described the complaint made in this application for judicial review as raising a structural challenge to the validity of the scheme of regulation and in particular to its blanket ban on anyone under 21, no matter what their circumstances, from acting as a sponsor for a spouse or partner to obtain a visa allowing them to live together as a family in the United Kingdom. As such, the court would not be limited to considering the precise facts and circumstances of the petitioner and the decisions which affected her directly: R. (on the application of JF) v Secretary of State for the Home Department [2010] 1 WLR 76. Nevertheless, it was only after the preliminary legal issue, and with it the petitioner's victim status for the purposes of article 34 of the Convention and section 7(1)(a) of the Human Rights Act 1998, has been determined by the court that the facts specific to the petitioner's case can be explored by the Tribunal in a statutory appeal at the instance of W B. Deciding on this challenge to the Immigration Rules was a necessary step before the First Tier Tribunal could carry out its job, part of which was to apply the Rules. It was not, however, necessary in order to establish the petitioner's victim status that she demonstrate that the decision she was interested in would necessarily have gone the other way if the legislation attacked had been Convention compliant in the way contended for on her behalf.


[16] In concluding his first speech, Mr O'Neill emphasised that proportionality was a matter for the court. The
essence of the petitioner's complaint was that the terms of the Rules do not allow for any consideration of the facts of her case on the sole basis that she is under 21. The European Court of Human Rights is very wary of any bright-line legislation or rules in areas where Convention rights are engaged which do not permit public authorities to consider the individual circumstances of particular cases. Mr O'Neill recognised that the High Court in England had considered Immigration Rule 277 in R. (on the application of Aguilar Quila) v Secretary of State for the Home Department supra and had found it to be compatible with the Convention. There it was held by Bennett J that requiring a British spouse to defer entry to university for a limited period did not engage the article 8 rights of either of the married couple. The decision of Bennett J did not commend itself to Mr O'Neill. The only cases of the European Court which were referred to dated, respectively, from 1985 and 1993, but in any event in the present case the material interference with the petitioner's, her husband's and their children's article 8 rights is of quite a different scale from that involved in Quila.

Respondent: first speech


[17] It was Mr Tyre's submission that the petition raised issues that properly required to be addressed by way of a statutory remedy that had not as yet been exhausted. It therefore fell foul of Rule of Court 58.3(2). The petition should be dismissed. If the court was against him on that, then there would require to be a second hearing in order to give the respondent the opportunity to lead evidence with a view to justifying such infringement of Convention rights as may arise from the terms of the impugned Immigration Rules.


[18] Mr Tyre was anxious to dispel any thought that the sole reason for refusing W B leave to enter either in terms of the decision letter of
24 March 2009 or the decision letter of 16 February 2010 was that his sponsor was under the age of 21. Looking to the latter letter it can be seen that the ECO was not satisfied as to W B's ability to support the petitioner. He was not satisfied that the couple were either married or cohabiting. He had regard to W B's precarious immigration history. The petition was an attempt to interrupt the orderly progress of the entry clearance procedure in this case. The time limit for appealing the refusal of leave to enter had not elapsed.


[19] The Immigration Rules did not have the status of legislation:
Odelola v Secretary of State for the Home Department (otherwise MO (Nigeria) v Home Secretary) [2009] 1 WLR 1230, Lord Hoffmann at paragraph 1, Lord Brown of Eaton-under-Heywood at paragraphs 26 and 33 and Lord Neuberger at paragraph 46. Therefore the case did not enter the territory of a declaration of incompatibility of primary legislation in terms of section 4 of the Human Rights Act 1998 or of declarator of incompatibility and reduction of subordinate legislation. Mr Tyre accepted that the Immigration Rules could create rights but they did not over-ride or trump Convention rights; their application was always subject to Convention rights. Thus there was no reason preventing a party to a statutory appeal arguing that the application of the Rules would breach an applicant's Convention rights and therefore that they should not be applied. It was not a matter for the supervisory jurisdiction. It was open to W B to argue, as provided by section 86 (3) (a) of the 2002 Act, that the decision appealed against was not in accordance with law. The First Tier Tribunal would have to consider whether article 8 was engaged and whether the refusal of entry clearance was unlawful by reason of a disproportionate interference with a Convention right: Huang v Secretary of State for the Home Department [2007] 2 AC 167 at 181E and 183B. Mr O'Neill's criticisms of the decision in R. (on the application of Aguilar Quila) v Secretary of State for the Home Department supra were unfounded. No point had been taken on the availability of judicial review in that case because there was seen to be no appealable decision; the wife had written to the Secretary of State seeking a dispensation from application of Rule 277. A failure to take an available point in Quila did not, in any event, prevent the respondent taking the point in the present proceedings. The petitioner did not have the requisite title and interest to sue. The court will not answer purely academic questions. The petitioner is not a public watchdog. It is not enough that an act or decision or scheme of regulation is not to her liking. In considering her entitlement to challenge the Immigration Rules it is necessary to identify precisely what is the right that the petitioner claims should be protected: Rape Crisis Centre v Secretary of State for the Home Department 2000 SC 527 at 534; AXA General Insurance Ltd Petitioners supra at paragraphs 55 to 57; Clyde and Edwards Judicial Review paragraph 13-02. Insofar as the petitioner has an interest in the consequences of the decision complained of, that interest, including her article 8 right, can and should be considered through the medium of the statutory appeal procedure available to W B. The petitioner's right went no further than that. She had no entitlement to require a consideration of the Convention compatibility in the abstract. That the appeal was at the instance of W B did not mean that the petitioner's Convention rights would not be protected: Beoku-Betts v Secretary of State for the Home Department supra (where parallel proceedings were disapproved of). Mr Tyre accepted that the adverse impact of a measure of general application may allow an individual to bring an application for a declaration of incompatibility: AXA General Insurance Ltd Petitioners supra, but the present petition is distinguishable as the petitioner's interest only emerges in the context of refusal of a particular application for entry clearance. Once there has been such a refusal a statutory appeal procedure becomes available and that procedure provides protection for the petitioner's rights, thus obviating the need for judicial review.


[20] Mr Tyre submitted that given the failure to exhaust statutory remedies, the present proceedings were not an appropriate exercise of the supervisory jurisdiction of the Court of Session. A remedy by way of judicial review is not available where an alternative remedy exists which is adequate and proportionate. It is only very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision: R v Inland Revenue Comrs, ex parte Preston [1985] AC 835 at paragraphs 20 and 26; R (on the application of Lim) v
Secretary of State for the Home Department
[2007] EWCA Civ 773 at paragraphs 13 and 27; Bibi v Secretary of State for the Home Department [2009] EWHC 2322
. Given the proper approach as described in Beoku-Betts v Secretary of State for the Home Department supra, the petitioner's rights would be adequately and proportionately protected by an appeal in terms of section 82 and under reference to the ground set out in section 86 (3) (a) of the 2002 Act. What arose here was not a question of vires but, rather, the need to respect and not interfere with Convention rights. Were the First Tier Tribunal to find that there had been a breach of Convention rights resulting from an application of the Immigration Rules then that would be an error of law and the appeal would have to be allowed. Repeta v Secretary of State for the Home Department supra and Pardeepan v Secretary of State for the Home Department were not in point. The First Tier Tribunal would not be invited to consider the reasonableness of the policy but whether its application would breach the petitioner's rights. No issue of procedural irregularity arose. There was nothing that the court was being asked to do that could not adequately be done by the First Tier Tribunal. There would be a number of issues before the First Tier Tribunal (whether the petitioner and W B were either married or living together, for example). It was artificial and unnecessary to separate one out for individual prior attention.


[21] Mr Tyre recognised that engagement of article 8 rights and the proportionality of such measures as interfered with them, were not matters to be explored at this hearing. However, he wished to emphasise that the question of engagement was not clear-cut. There was not common ground on this as between the petitioner and the respondent. It was the respondent's position that the
Strasbourg jurisprudence suggested that they were not engaged: Abdulaziz, Cabales and Balkandali [1985] 7 EHRR 471; Konstantinov v The Netherlands [2007] FCR 194; Gulijev v Lithuania supra.

Petitioner: second speech

[22] Contrary to what seemed to be suggested on behalf of the respondent,
Mr O'Neill submitted that it was irrelevant whether or not express reference was made in the decision letter to the Immigration Rules. The petitioner fell into the class of persons adversely affected by the Immigration Rules because as the spouse or partner of a person seeking entry to the United Kingdom she is excluded from validly sponsoring her husband's re-entry to the United Kingdom because she is under the age of 21. But in any event, when regard is had to the decision letter of 16 February 2010 it can be seen that reference is made to the Rule in question.


[23] Mr O'Neill adhered to his submission that the Immigration Rules were subject to judicial review. His primary position remained that they were reviewable as subordinate legislation, as that expression fell to be understood in the Human Rights Act. The reality was that the Rules are much more than statements of policy. They had to be laid before Parliament. They had to contain certain information. They will be presumed to be valid. It is not enough to say that their application is always a matter of discretion. The Rules will be followed.
Odelola was simply concerned with when a change in the Rules came into effect. It said nothing about whether the Rules may be subject to judicial review or whether the Rules were to be regarded, for the purposes of the Human Rights Act, as subordinate legislation. The definition of subordinate legislation provided by section 21(1) was particular to the Act. It should be given a generous and purposive construction as forming part of a constitution which protects and entrenches fundamental rights and freedoms to which all persons in the state are entitled: R v DPP (ex p Kebilene) [2000] 2 AC 326 at 375; Somerville v Scottish Ministers 2007 SC 140 at paragraphs 49 and 54; Smith v Scott, 2007 SC 345 at paragraph 36. If the Immigration Rules are to be construed as not being subordinate legislation then there is nothing in the scheme of the Human Rights Act which can ensure the Convention compatibility of those rules in that they would not have to be read and given effect to in a Convention compatible manner under section 3 and their validity would remain unaffected regardless of their Convention incompatibility. Moreover, if the Immigration Rules do not fall within any category of regulation for Convention rights purposes then it cannot be said that for the Secretary of State to make a decision in accord with them is to act accordance with law or "as prescribed by law" and therefore the Immigration Rules could not be said to form the basis for any justified interference with Convention rights. Mr Tyre would appear to be suggesting that a decision according to the Immigration Rules would not be in accordance with law. That would be an odd result.


[24] However, if it were the case that the Immigration Rules were no more than
statements of administrative policy, this did not immunise them from judicial review. There is no doubt that the court can review policies adopted by the executive. Examples of review of policies include the following: R. (on the application of S) v Secretary of State for the Home Department
[2006] INLR 575
where the Secretary of State's policy relating to discretionary leave was held to be unlawful; R. (on the application of Smith) v Secretary of State for the Home Department
[2006] 1 AC 159
where the Secretary of State's policy not to undertake periodic review of minimum terms for young persons detained at Her Majesty's pleasure was held to be unlawful; R. (on the application of Daly) v Secretary of State for the Home Department
[2001] 2 AC 532
where prison policy on examination of legal correspondence in prisoner's absence was held to be unlawful; R. v Secretary of State for the Home Department Ex p. Simms
[2000] 2 AC 115
where prison policy restricting oral interviews with journalists was reviewed; and Somerville v Scottish Ministers 2008 SC (HL) 45 where the policy in relation to the segregation of prisoners was subject to judicial review.


[25] The petitioner's challenge to the Immigration Rules was not periled on the question raised being real as opposed to academic (although it was Mr O'Neill's submission that here there was a real question directly affecting the petitioner). In the area of public law there was a discretion to hear disputes, even if they could be said to be academic where it was in the public interest to do so: British Medical Association v. Greater Glasgow Health Board 1989 SC (HL) 65 at 94;
R v Secretary of State for the Home Department, ex parte Salem [1999] AC 450 at 456 to 475; Napier v Scottish Ministers 2005 SC 307; Davidson v Scottish Ministers 2006 SC (HL) 42 and Beggs v Scottish Ministers 2007 SLT 235.


[26] It was Mr O'Neill's submission that
the general principle that the failure to exhaust statutory remedies renders a petition to the Court of Session for judicial review incompetent because of prematurity was subject to exceptions: Tehrani v Argyll and Clyde Health Board (No. 2) 1990 SLT 118 at 124. In any event in deciding whether an alternative remedy does indeed exist, practical considerations may be taken into account. The proposed alternative statutory remedy has to be an adequate one. Where a decision affects a considerable number of people the fact that each person might be able to take a statutory appeal individually will not prevent the issue being raised on behalf of all of them by way of judicial review: City Cabs (Edinburgh) Ltd v City of Edinburgh District Council 1988 SLT 184.


[27] The respondent's position of directing the court to some of the case law on title and interest to sue but not asking it to sustain the relevant plea was illogical. Mr O'Neill moved that the plea be repelled. The issue of title and interest and victim status was exhaustively considered in the context of a judicial review of a provision of general application in AXA
General Insurance Ltd Petitioners supra. There, at paragraphs 81 and 82 Lord Emslie expressly rejected a submission similar to the one apparently being put forward by the respondent in this case to the effect that the petitioner should raise these issues in another forum. In any event, as was clear even from the respondents submissions, while in Beoku-Betts the House of Lords recommends that the Convention rights of a whole family be considered in determining the Convention compatibility of a decision in relation to an applicant, there is still no provision that would enable the petitioner herself, in her own right, and in her own interest to appeal and appear before and be represented before any statutory tribunal as regards the refusal to allow her husband to return and live with his family. Consideration of her Convention rights remains dependent on her husband's application for a statutory appeal being timeous, in the correct form and raising the correct statutory provisions and arguments to protect his own interest as well as that of the petitioner. This dependency on others to argue her case and that of her children is not an effective remedy for the purposes of the proper protection of her Convention rights.


[28] The petitioner maintained the criticism of
R. (on the application of Aguilar Quila) v Secretary of State for the Home Department supra. As appeared from paragraph 2 in the judgment of Bennett J, Mr Tyre was simply wrong to assert that the applicant in that case had no statutory right of appeal and therefore had to pursue matters by way of judicial review. The respondent had accepted the competency of this approach in Quila. It was entirely unclear why he thought that judicial review or the statutory appeal process (under the same statutory regime) in Scotland was so different as to require a completely different approach north of the border.


Respondent: second speech


[29] Mr Tyre began a brief second speech by accepting that the clear implication of section 10 (4) of the Human Rights Act 1998 was that this court had power to quash subordinate legislation on the ground of incompatibility with the Convention and in this context he referred to AXA General Insurance Petitioners supra. He reiterated that the Immigration Rules did not constitute subordinate legislation; they expressed a policy. They did not fall to be regarded as subordinate legislation in terms of section 21(1)(f) of the Human Rights Act because they were not made under primary legislation. The Immigration Act 1971 simply refers to rules being made. It does not confer the power to do so. This might not matter. The application of a policy is reviewable as the act of a public authority, but a policy per se is not. All the reported cases referred to by Mr O'Neill had been instances of the application of a policy to a particular person. This was also true of
R. (on the application of S) v Secretary of State for the Home Department supra. Regard had to be had to the order pronounced by the court in that case. The point could not be clearer. In order to challenge the decision it was necessary to challenge the policy. It was when a policy is applied that the question of its compatibility with the Convention becomes a practical rather than an academic issue. Turning to the petitioner's interest in the decision refusing W B leave to enter, if she were permitted to challenge that by way of judicial review then it is difficult to see why family members should not always be able to bring proceedings for judicial review of an adverse decision in relation to an applicant relative in parallel to the applicant's statutory appeal. As demonstrated by Beoku-Betts v Secretary of State for the Home Department supra, the interests of family members should be had regard to by the original decision-maker and in the appeal process. The petitioner had no rights separate from W B's rights. These rights were protected in the appeal process. That the appeal might be badly presented was nothing to the point.


[30] In the light of the petitioner's amendment to form of orders sought, Mr Tyre was content that the respondent's plea of no title to sue be repelled but he insisted in the respondent's pleas to the competency and to the relevancy of the petition.

Discussion

What is and is not in issue


[31] This is an application for reduction of Immigration Rules made by the
Secretary of State and of a decision of the Secretary of State made following these Rules. It is the petitioner's contention that the Rules and the decision are incompatible with her Convention rights. She seeks declarator to that effect, by way of preliminary to reduction both of the impugned Rules and the decision. The application comes by way of petition for judicial review.


[32]
Taking the petitioner's averments as to fact and Mr O'Neill's ascription of motive to her as being accurate, the petitioner has two overlapping and interlinked objectives that she seeks to further or achieve through this application. First, she wishes to resume family life with the person who is the father of her children and whom she regards as her husband, and to do so in the United Kingdom, with all the advantages that flow from that. Second, she wishes to invalidate an Immigration Rule, the terms of which stand in the way of her achieving her first objective. Success with that second objective may have consequences going beyond the petitioner's own circumstances.


[33] For present purposes I need not determine whether the petitioner's Convention rights are indeed engaged and have been contravened. That question is in issue between the parties but it is a question for another day. The question for this court is an antecedent one: are either of the acts complained of, the amending of the Rules and the making of the decision, amenable to judicial review? Mr O'Neill, for the petitioner, would have the question answered in the affirmative in relation to both acts. Mr Tyre, for the respondent would have it answered in the negative. As I saw it, Mr Tyre's submissions involved a fundamental attack on the competency of the petition. There is a question, to which I shall return, as to whether the respondent's pleas-in-law precisely reflect that position, but the point was not taken by Mr O'Neill and it is not one to which I would attach importance.


[34] As Mr O'Neill pointed out, part at least of the argument on behalf of the respondent was couched in language suggestive of absence of title and interest. That did not in fact turn out to be the respondent's position and Mr Tyre confirmed that he was content that the respondent's first plea-in-law, no title to sue, be repelled. I shall do that. It follows that if, contrary to the respondent's submissions, the decision and the Rules are amenable to judicial review, then it is accepted that the petitioner has title and interest to bring these proceedings.


[35] The court is familiar with applications for the reduction of a decision, although less familiar with applications where, as here, the decision does not directly relate to the applicant. It is becoming increasingly familiar with applications challenging various sorts of legislation, whether enacted in
Westminster or Holyrood. It is nevertheless convenient, before going any further, to record that while the respondent disputed the petitioner's characterisation of the Immigration Rules as subordinate legislation and, in any event, argued that judicial review was not available because there was an alternative remedy, it was not disputed that it was competent for the Court of Session, in proceedings brought in terms of chapter 58 of the Rules of Court, to grant an order for reduction of a piece of subordinate legislation which has received Parliamentary approval, on the ground that it contravened Convention rights. I understood Mr Tyre specifically to concede as much under reference to section 10(4) of the Human Rights Act (and see also AXA General Insurance Petitioners supra at paragraphs 137 and 142, and Clyde and Edwards supra paragraphs 6.41, 9.12, 21.17). It was therefore common ground between the parties that, as a matter of generality, subject to questions of title and interest, an item of subordinate legislation might competently be subject to a "stand alone" judicial review application, just as Lord Woolman held to be the case, in relation to primary legislation (where, of course, section 4 of the 1998 Act is of relevance), in SM v Advocate General 2009 SC 643.

The Immigration Rules


[36] I turn first then to consider whether the Immigration Rules, and in particular Rules 277 and 295AA, may be judicially reviewed, either in a stand alone application or in the context of review of a decision made in terms of the Rules, in the light of Mr O'Neill's submission that the Rules are an example of subordinate legislation (he also used the expression "regulation") and therefore subject to what he described as "structural challenge" through an application to the supervisory jurisdiction of this Court.


[37] What then are the Immigration Rules?


[38] As Mr O'Neill explained, section 3 (1) of the Immigration Act 1971 provides that a person who is not a British citizen may not enter the United Kingdom unless given leave to do so, in accordance with the provisions of the Act. The grant of leave to enter is a matter for the decision of the Secretary of State. Section 3(2) of the Act provides, inter alia, as follows:

"(2) The Secretary of State shall from time to time (and as soon as may be) 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 in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; ...

If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid)."


[39]
In Rape Crisis Centre v Secretary of State for the Home Department supra at 535 Lord Clarke, recognising that in practice the power of decision will be delegated to immigration officers, said this of these rules "laid down by" the Secretary of State:

"In the present case the complaint by the petitioners relates to the manner in which the Secretary of State had exercised a discretion in his application of the Immigration Rules. It was conceded on behalf of the petitioners that these rules did not have the force of law. They are addressed to those officials who require, in the exercise of their statutory functions, to reach decisions under the primary legislation, the Immigration Act 1971, and to those persons who seek admission to the United Kingdom and for leave to enter the United Kingdom. I agree with counsel for the Secretary of State when he contended that they conferred no express or implied rights on any other parties."


[40] Lord Clarke is not alone in having made a judicial pronouncement about the Immigration Rules. In his judgment in Odelola (MO (
Nigeria) v Home Secretary [2009] 1 WLR 126 at 132B to 134A), Buxton LJ reviews a series of judicial observations about the Rules, revealing, as he puts it, a continuing unease as to their status. The most recent pronouncement quoted by Buxton LJ is the following, taken from the judgment of Sedley LJ in R (BAPIO Action Ltd) v Home Secretary [2007] EWCA Civ 1139 at paragraph 29:

"In constitutional terms, it seems to me, the immigration rules are the product of the mandate set out in section 3(2) of the Immigration Act 1971 to secure parliamentary approval of the principles according to which the Home Secretary intends for the time being to exercise the statutory and prerogative powers which govern admission to the United Kingdom. There is nothing in the Act which gives them the force of law, save in relation to appeals against their exercise. For the rest, their only statutory dimension is that they are made open to debate and negative resolution in Parliament".


[41] Having regard to what Sedley LJ ("other than whom no judge is more aware of the present form and structure of the immigration rules") had said and the other cited observations, Buxton LJ concluded, supra at 134F:

"There is therefore a stream of highly authoritative commentary warning us against treating the immigration rules as delegated legislation of the kind that falls within the terms of the [Interpretation Act 1978]."


[42] Very similar conclusions were expressed when Odelola came before the House of Lords. Lord Hoffmann put it this way (MO (
Nigeria) v Home Secretary [2009] 1 WLR 1230, paragraph 6 at 1233D):

"The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under section 84(1) of the National Immigration and Asylum Act 2002 one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules. So there is no conceptual reason why they should not create rights which subsequent rules should not, in the absence of express language, be construed as removing. ..."


[42] In the opinion of
Lord Brown of Eaton-Under-Heywood (with which Lord Hope expressly agreed) there is this, at paragraph 27 (supra 1237H) and then paragraphs 33 to 35 (supra 1239H to 1340D)

"27 In the Court of Appeal Buxton LJ's leading judgment collected together the many dicta down the years which, in a variety of contexts, have addressed the precise status of the immigration rules.... It would seem to me unnecessary and unhelpful to repeat that exercise here. To ask whether the rules are strictly rules of law is ultimately a barren exercise. Obviously, as Buxton LJ recognised, when they apply the rules have legal force and decisions are appealable if not taken in accordance with them.

...

33 In deciding what simple fairness demands in the present context it is important to recognise first and foremost that, so far from asking here what Parliament intended, the question is what the Secretary of State intended. The rules are her rules and, although she must lay them before Parliament, if Parliament disapproves of them they are not thereby abrogated: the Secretary of State merely has to devise such fresh rules as appear to her to be required in the circumstances.

34 Secondly, as Mr Ockelton put it in the tribunal's decision here, 'the immigration rules are essentially executive, not legislative'; the rules 'are essentially statements of policy'. Longmore LJ said much the same thing in the Court of Appeal (para 27): 'the rules are statements of executive policy at any particular time'...

35 The immigration rules are statements of administrative policy: an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain. Section 33(5) of the 1971 Act provides that: 'This Act shall not be taken to supersede or impair any power exercisable by Her Majesty in relation to aliens by virtue of Her prerogative.' The Secretary of State's immigration rules, as and when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control."

and in the opinion of Lord Neuberger of Abbotsbury (with which Lord Hope again expressly agreed) at paragraphs 45 to 47 (supra at 1242B to G), this:

"45 Section 16(1)(c) of the [Interpretation Act 1978] applies to 'an Act' and 'an enactment'. However, through section 23(1), it also applies to 'subordinate legislation', which extends, by virtue of section 21(1), to 'orders, rules, regulations ... and other instruments made ... under any Act'. In my opinion, although referred to in the Immigration Act 1971, and potentially subject to control by the legislature under that Act, the immigration rules were not 'made ... under [an] Act'. In the 1971 Act, section 1(4) refers to immigration rules being laid down by the Secretary of State, and section 3(2) sets out the procedure for laying before Parliament statements of those rules and of any changes thereto. However, neither section purports to be the source of the power to make such rules. The definition of 'immigration rules' in section 33(1) of the 1971 Act takes matters no further: it refers back to section 3(2), and makes it clear that any reference to the rules is to the rules 'for the time being'.

46 As [counsel] for the Secretary of State points out, the view that the rules are not made under any enactment is consistent with the statutory history. From the Aliens Act 1905 up to and including the Commonwealth Immigrants Act 1968, the immigration statutes contained no reference to any rules. The first time the immigration rules were mentioned in any statute was in the Immigration Appeals Act 1969, whose section 24(1) was not dissimilar for present purposes from section 1(4) of the 1971 Act. However, it is clear that such rules had existed long before that Act. That tends to support the view that the rules are non-statutory in origin. The view is also consistent with legislation subsequent to 1971. In particular, the Nationality, Immigration and Asylum Act 2002, which introduced new provisions for appeals (applicable in this case), adopts the same definition of immigration rules as the 1971 Act.

47 In these circumstances, the Secretary of State's decision in this case cannot, in my view, be impugned on the ground that it was based on an interpretation of the immigration rules which conflicted with section 16(1)(c) of the 1978 Act. Despite its wide words, section 21(1) of that Act does not apply to the immigration rules."


[43] Mr O'Neill rather dismissed Odelola as deciding no more than that the provisions of the Interpretation Act 1978 and, in particular, section 16(1)(c), which protects accrued rights, did not apply to the Immigration Rules. That may be so, but standing the consistent analysis of the status of the Immigration Rules demonstrated in the opinions in that case, I cannot regard the Rules as an example of subordinate legislation as that expression is generally understood. Critically, they are not made in terms of power conferred by primary legislation. In making the Rules the Secretary of State is not acting as a subordinate legislator. Rather, from time to time, he issues statements of administrative policy as to how he proposes to exercise the prerogative power of immigration control in relation to grants of leave to enter or remain. Thus, in contrast to what one would expect with legislation, no one is bound by the Rules other than the rule-maker himself in that while the Secretary of State retains a discretion to depart from the Rules by treating an applicant more favourably, as Lord Hoffmann observed, the Rules may create the right to be treated in a particular way and that right can be vindicated by a disappointed applicant by way of statutory appeal. Mr O'Neill argued that the definition of "subordinate legislation" found in section 21(1) of the Human Rights Act was in certain respects particular to that Act and encouraged me to adopt
a generous and purposive construction with a view to concluding that whatever "subordinate legislation" might mean in other contexts (for example for the purposes of the application of the Interpretation Act) it was wide enough to embrace the Immigration Rules in the context of the Human Rights Act. I do not see such as construction as being open to me. The relevant definition within which the Immigration Rules must fall if they are to be held to be "subordinate legislation" for the purposes of the Human Rights Act is what appears in section 21(1) at paragraph (f). That definition, insofar as relevant, is "order, rules, regulations, scheme, warrant, byelaw or other instrument made under primary legislation ..." To all intents and purposes that it is the same definition which is found in section 21(1) of the Interpretation Act 1978. It will be recollected that in Odelola Lord Neuberger, with whom Lord Hope agreed, held that "[despite] its wide words, section 21(1) of [the 1978 Act] does not apply to the immigration rules." I can see, and would accept, as held by Lord Woolman in SM v Advocate General supra, that the Human Rights Act has enlarged the scope of the supervisory jurisdiction, but if the Immigration Rules are to be made subject to a stand alone application for judicial review it cannot be on the basis that they are subordinate legislation. They are not made under primary legislation and accordingly are not an example of subordinate legislation as defined by section 21 (1) of the Human Rights Act. They are, as Lord Brown explained, essentially statements of executive policy indicating how, for the time being, it is proposed to exercise the prerogative power of immigration control.

Judicial review of executive policy


[44] Now, that the Immigration Rules are properly characterised as
statements of executive policy indicating how a prerogative power is to be exercised may not matter. According to Mr O'Neill, there is no doubt that the court can review policies adopted by the executive and he cited examples where the court had been prepared to do so: R. (on the application of S) v Secretary of State for the Home Department supra; R. (on the application of Smith) v Secretary of State for the Home Department supra; R. (on the application of Daly) v Secretary of State for the Home Department supra; R. v Secretary of State for the Home Department Ex p. Simms supra; and Somerville v Scottish Ministers supra. Not so, said Mr Tyre: while the application of a policy is reviewable as the act of a public authority, a policy per se is not. The cases referred to by Mr O'Neill were all instances of the application of a policy to a particular person.


[45] Neither Mr O'Neill nor Mr Tyre took me to the cases they cited with a view to establishing their respective assertions. On reading what are sometimes long reports, one cannot always be confident as to how the issue was presented to the court, particularly where the distinction as between policy and the application of policy may not very much matter to the way matters are approached. R. (on the application of Smith) v Secretary of State for the Home Department
illustrates what I have in mind. There the claimant who had pleaded guilty to a murder committed when she was under the age of 18 was sentenced to be detained during Her Majesty's pleasure. The Secretary of State set the tariff for the years to be served in custody at 15 years. Following the decision in V v United Kingdom (1999) 30 EHRR 121, the tariff was reviewed by the Lord Chief Justice and re-fixed in terms of an ad hoc scheme applied to older convictions. In terms of his policy the Secretary of State declined further to review the tariff when asked to do so. The claimant sought judicial review. While the rubric of the report describes the claimant as having brought an application for judicial review of the policy of the Secretary of State not to review the tariff once fixed, consideration of the speech of Lord Bingham would point to the application being for judicial review of the Secretary of State's decision to decline to further review the tariff: an application of the policy rather than the policy itself, but then when he came to discuss the case Lord Bingham focused on neither policy nor decision but, rather, defined the question in issue as being whether the original sentence imported a requirement that the minimum term to be served by that person be subject to periodic review.


[46] In what Lord Steyn described as a "somewhat untidy procedural situation", a principal issue in R. v Secretary of State for the Home Department Ex p. Simms was the lawfulness of the Home Secretary's blanket prohibition on any prisoner giving an interview to a journalist but, in the passage of his speech headed "The case in a nutshell", his Lordship notes that the application was for
judicial review of the decisions denying particular prisoners the right to have oral interviews. Somerville v Scottish Ministers relates to four applications for judicial review of the legality of decisions to remove prisoners from association, in terms of rule 80 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994. As Mr Tyre submitted, I would see Smith, Simms and Sommerville, as being instances of the judicial review of decisions which involved the application of a policy to a particular person or person but it appears to me that Mr O'Neill was correct in describing two of the cases cited by him as instances where the issue was discussed in terms of the review of a policy as opposed to the review of a decision. R. (on the application of S) v Secretary of State for the Home Department was part of the aftermath of the hijacking of an Afghan national airline flight to Stansted airport. At first instance Sullivan J had declared the Secretary of State's policy on Discretionary Leave to be unlawful. Paragraph 3 of the judgment of the Court of Appeal explains why the case had come before it:

"The reason why the Secretary of State is appealing this part of the judge's order is that, while he complied with para 5 of the order and granted the respondents a period of six months' Discretionary Leave to enter this country on 19 May 2006, this period ends on 19 November 2006, and he wishes to be able, if he sees fit, to decline to grant a further period of Discretionary Leave at the end of that period and to place the respondents thereafter on temporary admission, which he will be unable to do unless that part of the judge's order is set aside. More generally, he wishes to obtain confirmation from this court that his newly adopted policies for handling a rare type of case are not unlawful."

And the court was prepared to entertain the application on that basis. Similarly, notwithstanding the reference to a "decision" in the rubric, I would see R. (on the application of Daly) v Secretary of State for the Home Department as an example of the review of a policy of general application (on the examination of legal correspondence in prisoner's absence), rather than a particular application of the policy.


[47] The question arises as to just how sharp is the line between reviewing an application of a policy and reviewing the policy itself. I was very insistent on Mr O'Neill specifying precisely what was the remedy that he was looking for but I can see that that may be to give precedence to form over substance. Again I was not referred to this, but the approach of Burnett J in
R (on the application of Aguilar Quila) v Secretary of State for the Home Department supra is instructive. At paragraph 2 of his judgment he observes:

"...at first blush the challenge appears to be to an individual set of decisions taken by the SSHD, what underlies it is the contention that the immigration policy relating to marriages of those under 21 is unlawful."

Then, having narrated the facts that were specific to the particular case, Burnett J went on to consider, and reject, the attacks on Immigration Rule 277 under reference to rationality, article 8 and proportionality, and article 14 read with article 8. True, Burnett J concludes with a consideration of the particular circumstances of the claimant and his wife, but, like other judges before him, he expresses no diffidence about reviewing the statement of policy enshrined (for the time being) in one of the Immigration Rules.


[48] It was not argued that there was a difference as between the approaches of, on the one hand, the Court of Session and, on the other, the High Court in
England, in relation to this aspect of their respective judicial review jurisdictions. Indeed, almost all of the cases to which I was referred were English. The trend, north and south of the border, has been to extend the scope of judicial review, a trend accelerated by the enactment of the Human Rights Act and, north of the border, the Scotland Act. The sixth edition of De Smith's Judicial Review was published in 2007. At paragraph 1-025 its very distinguished editors have this to say:

"Judicial review has developed to the point where it is possible to say the no power - whether statutory or under the prerogative - is any longer inherently unreviewable."

At paragraph 3-027 there is this:

"...it is no longer necessary for a claimant to demonstrate that a decision or action has direct legal consequences upon the claimant. Thus, a press release may constitute a reviewable decision. Similarly, the court may review policy guidance issued by public authorities."

The relevant footnote cites R (on the application of Burke) v General Medical Council [2006] QB 273, R (on the application of Axon) v Secretary of State for Health [2006] QB 539, and R (on the application of United Cooperatives Ltd) v Manchester City Council [2005] EWHC 364 at [21]. The first two of these cases related, respectively, to guidance issued by the GMC as to the circumstances in which artificial nutrition and hydration might be withdrawn from a patient approaching the final stages of a terminal condition, and guidance by the Department of Health as to the advice and treatment to be given by health professionals to young people in relation to contraception, sexually transmitted infection and abortion. The third case was an application for the judicial review of a decision by the defendant local authority to advise certain members of the Planning and Highways Committee not to take part in considering and determining a particular planning application (on the ground of conflict of interest). In the paragraph cited from the third case, Elias J observes that the courts are in principle reluctant to permit mere advice to be the subject of judicial review but that there are a number of cases where policy guidelines laid down by central government, particularly if made pursuant to statutory powers, and also sometimes non-statutory guidance, have been the subject of review. He goes on to quote from the speech of Lord Bridge in Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112 at 193:

"We must now say that if a government department, in a field of administration in which it exercises responsibility, promulgates in a public document, albeit non-statutory in form, advice which is erroneous in law, then the court, in proceedings in appropriate form commenced by an applicant or plaintiff who possesses the necessary locus standi, has jurisdiction to correct the error of law by an appropriate declaration. Such an extended jurisdiction is no doubt a salutary and indeed a necessary one in certain circumstances ..."

Accordingly, while I do not read all of the cases cited to me by Mr O'Neill in the way he suggested I should, I accept that in at least two of the cases on his list what the court said it was doing was reviewing a policy rather than reviewing a decision to apply a policy. That is also true of Aguilar Quila and Mr O'Neill gets support from a leading textbook for his general proposition that statements of policy are amenable to review.


[49] As I have indicated, in the argument before me, Mr O'Neill's proposition rested on little more than the assertion that it was so, met by Mr Tyre's counter-assertion that, on a proper analysis, what the courts do is to review decisions and decisions which, by their nature, may be made by reference to previously enunciated statements of how decisions of that sort will be made, but do not review the statements themselves. Neither counsel addressed the question of why statements of policy should or should not be amenable to judicial review, nor did they explore whether distinctions might fall to be made as between particular sorts of policy statement. Thus, for all the deluge of authority and learning represented by Mr O'Neill's
Note of Argument and Supplementary Note of Argument and Mr Tyre's response to them, I was rather left to find my own way to a conclusion. My conclusion is that, in principle, there is no reason why the way in which Immigration Rules 277 and 295AA are framed should not be subject to the supervisory jurisdiction of this Court. My reasons are as follows. The purpose of the supervisory jurisdiction is to prevent or remedy an excess or abuse of power where no alternative is available: West v Secretary of State for Scotland 1992 SC 385 at 413. Speaking generally, for power to be exceeded it must in some way be limited and for it to be exceeded or abused it must be exercised. One way to exercise power is to make rules that are capable of enforcement. It is uncontroversial that the enactment of subordinate legislation may be held to be invalid for excess of power, irrespective as to whether the stage has been reached of the legislation being applied. An argument that a measure taken by a public authority is incompatible with an individual's Convention rights is of the nature of a complaint of excess of power in that in terms of section 6 of the Human Rights Act it is unlawful for a public authority to act in this way and Mr Tyre accepted that the clear implication of section 10 (4) of the Human Rights Act 1998 was that this court had power to quash subordinate legislation on the ground of its incompatibility with the Convention. Thus, there would have been no difficulty from this perspective had it been proper to regard the Immigration Rules as subordinate legislation. As I have indicated, there is high authority to the effect that it is not proper to regard the Immigration Rules as subordinate legislation. Rather, they are statements of administrative policy in the sense of being indications of how, at any particular time, the Secretary of State will exercise his discretion: MO (Nigeria) v Home Secretary supra Lord Brown at 1240C. Nevertheless, although I was not invited to consider the Immigration Rules as a whole and I have to bear in mind all that was said when MO (Nigeria) was in the Court of Appeal and then in the House of Lords, superficially the Rules have something of the look of subordinate legislation. While it is not the source of the power to do so, a provision of primary legislation, section 3(2) of the Immigration Act 1971, requires that they be made. They are otherwise regulated by primary legislation in that section 2 of the Asylum and Immigration Act 1993 provides that nothing in the Immigration Rules shall lay down any practice which would be contrary to the Refugee Convention. The reference to "practice" of course points to them not being rules, something which is discussed by Buxton LJ in MO (Nigeria) v Home Secretary supra. His conclusion was that "as a rulebook" they were "odd": supra at 135H. Lord Bridge has described the Rules (in their then current draft) as "discursive in style, in part merely explanatory and, on their face, frequently offer[ing] no more than broad guidance as to how discretion is to be exercised in different typical situations" (R v Immigration Appeal Tribunal, ex p Bakhtaur Singh [1986] 1 WLR 910 at 917 to 918), but at least some of the Rules, including those under consideration in this case (Rule 353 also comes to mind) are formulated in prescriptive terms; they have the appearance of rules or regulations which are meant to be followed. That they are, in some sense, law, appears, as Mr O'Neill pointed out, from the terms of the 2002 Act. Section 84(1)(a) which provides that one ground of appeal against an immigration decision is that it was not in accordance with immigration rules, and section 86(3)(a) which provides that (now) the First Tier Tribunal must allow an appeal where the decision "was not in accordance with the law (including immigration rules)". In MO (Nigeria) v Home Secretary Buxton LJ notes the terms of section 86(3) (a) supra at 136B but goes on to explain that that need imply no more that "in classic public law terms" the Secretary of State is required to act in accordance with his declared policy for the time being. However, as Lord Neuberger confirmed when MO (Nigeria) was in the House of Lords, that creates rights. An applicant has the right to have his application determined by the Secretary of State in accordance with the Rules: supra at 1243G. It is no doubt the case that the Secretary of State may go beyond what by promulgating the Rules in particular terms he has required himself to do and grant a particular applicant leave to enter (in other words exercise his discretion to depart from the Rules) but, as I understand the matter, the terms of the Immigration Rules provide a very strong predictor of how the ECO will deal with any particular application. Whatever may be the case with other of the Rules, Immigration Rules 277 and 295AA, taken with the other provisions relating to sponsorship by a spouse or unmarried partner in part 8, are quite specific. They may properly be statements of policy but they do not simply offer "no more than broad guidance as to how discretion is to be exercised in different typical situations" as Lord Bridge put it in R v Immigration Appeal Tribunal, ex p Bakhtaur Singh supra. It would seem to me that the court might well be reluctant to review a policy that was no more than broad guidance but rather wait until the discretion was exercised in a particular case and then review a specific decision. I do not see the particular Rules that are in issue here in that light. They are quite specific. They provide that an applicant will not be given entry clearance on the basis that he is the spouse or unmarried partner of his sponsor if she is under the age of 21. It may well be that the feature that by making the Rules the Secretary of State constrains himself for the time being, makes for an odd rulebook, as Buxton LJ observes. Nevertheless it is the rulebook that the Secretary of State's officers will refer to in determining applications for entry clearance. Its terms raise sharply the question as to whether a sponsor's Convention rights under article 14, read with article 8, have been contravened. That the source of power to make the Rules lies in the Royal Prerogative does not immunise them from judicial scrutiny. Accordingly, agreeing with Mr O'Neill, I consider the particular Immigration Rules which are put in question here, are subject to judicial review as of course as they were subject in Aguilar Quila.

Judicial review and alternative remedy


[50] I turn to
the submission that the petition raised issues that properly required to be addressed by way of the appeal available to W B in terms of section 82 of the 2002 Act against refusal of entry clearance. The general rule is not in question. Clyde and Edwards supra have this at paragraph 12.01:

"As a general proposition it may be said that judicial review is not available if there is an alternative means of relief open to the applicant."

At paragraph 12.02 the authors go on:

"The point is reflected in the provisions of Rule of Court 58.3 (2) ...It is thought that this rule does not constitute any separate obstacle to recourse to judicial review where an alternative remedy exists, but only provides that alternative statutory remedies should be pursued under their own procedure rather than by the procedure under judicial review."

Rule of Court 58.3 is in the following terms:

"58.3 - (1) Subject to paragraph (2), an application to the supervisory jurisdiction of the court, including an application under section 45(b) of the Act of 1988 (specific performance of statutory duty), shall be made by petition for judicial review.

(2) An application may not be made under paragraph (1) if that application is made, or could be made, by appeal or review under or by virtue of any enactment."

In my opinion, this application for judicial review, at least insofar as it seeks declarator that the terms of Immigration Rules 277 and 295AA are incompatible with the petitioner's Convention rights and reduction of these rules, is not one that could be made, by appeal or review under or by virtue of any enactment. The application for reduction of the decision contained in the letter of 16 February 2010, received by the petitioner's agents on 19 February 2010, is more problematic but as far as competency is concerned it is sufficient that one of the remedies sought is such as to require recourse to judicial review.


[51] I agree with Mr O'Neill that for the general rule to apply the statutory remedy must be adequate. The general rule is subject to exceptions, as Mr
Tyre conceded, albeit that they are not very well defined. Regard has to be had to practical as well as equitable considerations. Here, a section 82 appeal is available to W B. It is not available to the petitioner. It is her position that her Convention rights have been adversely affected by the decision of 16 February 2010 but she has no statutory means of challenging it. I appreciate that it is the case that the petitioner's whole title and interest in the matter is dependent on her and her children's familial relationships to W B and the adverse decision in respect of his application for entry clearance. Were entry clearance to be granted, that title and interest would fly off. I also appreciate that W B can deploy an argument to the effect that the decision amounts to a disproportionate interference with the article 8 rights of the petitioner and their children, whose best interests should be regarded: Beoku-Betts v Secretary of State for the Home Department supra. However, as Mr O'Neill put it, the fact remains that, if restricted to W B's section 82 appeal, the petitioner well have to depend on others to argue her case and that of her children. I would not regard that consideration, by itself, as justifying recourse to the supervisory jurisdiction. The circumstance that other family members will be affected by an immigration decision is commonplace. It cannot sensibly be suggested that in every case these family members have the right to invoke the supervisory jurisdiction in parallel to the right of the person principally affected to take a statutory appeal, particularly given the emphasis on "one family life" in Beoku-Betts. However, this is not simply an attack on the decision of 16 February 2010. What the petitioner she seeks to do in this application is to reduce two of the Immigration Rules, it being accepted that she has the necessary title and interest. That is not something that can be achieved in the course of a section 82 appeal. No more can damages be awarded to the petitioner as she seeks as one of the proposed remedies in the present application, although nothing was made of this in the course of argument. There are what I have described as the practical and equitable considerations. Despite what Mr Tyre said about the petitioner not being a public watchdog, he did not press an argument to the effect that this application was not serious or that, given the decision in Aguilar Quilar, such issue as there was had been sufficiently litigated. In my opinion the Immigration Rules are open to challenge where it can be said that they are incompatible with Convention rights. To succeed in her challenge, the petitioner will have to demonstrate that her rights have been contravened but she has set out a case to that effect which has not, as yet, been found to be irrelevant. Looking at the matter over all, I see it as appropriate for judicial review. I see, as Mr Tyre, submitted, that upholding the competency of the petition means that one discrete issue is being removed from what are a number of issues bearing on the legality of the decision of 16 February. Success for the petitioner in this petition does not guarantee W B entry clearance. Nevertheless, the discrete issue is one which appears to me to fall readily under the supervisory jurisdiction and should be capable of efficient resolution under the procedure provided by chapter 58 of the Rules of Court. There is, I recognise, an element of circularity underlying Mr O'Neill's argument: if the Immigration Rules are to be reduced it can only through proceedings for judicial review, therefore judicial review should be available to allow the rules to be reduced. So be it.

Consequent orders


[52] Rule of Court 58.9 provides that after hearing the parties at a first hearing, the Lord Ordinary may, in the event that he does not determine the petition, make such order for further procedure as he thinks fit and, in particular he may do specific things which include ordering a second hearing on such issues as he may specify.


[53] I propose to repel the respondent's first plea-in-law (no title to sue) as, I would understand it, by consent. I also propose to repel the respondent's second plea-in-law in order to reflect my decision that is competent to seek judicial review of the Immigration Rules, notwithstanding that they are of the nature of statement of policy and notwithstanding that W B has a right of appeal in terms of section 82 of the 2002 Act. However, the arguments presented by the parties did not focus very specifically on the terms of the second plea-in-law, which are as follows: "The declarators sought being incompetent, the Petition should be refused." I can see that the scope of the argument presented went somewhat beyond the precise terms of the plea. I will therefore give parties the opportunity to address me when the petition is brought out by order, as I propose that it should be, before I pronounce any interlocutor. Both parties have pleas to the relevancy and Mr Tyre confirmed that the respondent insists in his plea but neither party sought to argue them. They are therefore reserved. I am not in a position to determine the petition. As I took parties to be agreed, determination of the petition will require proof; the issues, very broadly stated, being engagement of the petitioner's Convention rights and proportionality of the measures impugned. As I have indicated, I accordingly propose to have the petition brought out by order with a view to discussing how that second hearing should be conducted and whether it would be appropriate to make any orders such as are specified in sub-paragraphs (v) to (ix) of RCS 58.9(2)(b). I would expect parties to come to that hearing prepared to identify the issues upon which proof will be required, how that proof should be conducted (whether there are matters that can be agreed or at least dealt with by evidence on affidavit, for example), what documents will be required, and whether any order for recovery should be made. I would expect parties to have considered their respective pleadings. It being accepted that the onus is on the respondent to justify the proportionality of state measures, it may be that the respondent would wish to provide rather greater specification in the Answers than is currently the case.


[54] I shall reserve all questions of expenses.


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