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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> New London College Ltd, R (on the application of) v Secretary of State for the Home Department [2013] UKSC 51 (17 July 2013) URL: https://www.bailii.org/uk/cases/UKSC/2013/51.html Cite as: [2013] UKSC 51, [2014] Imm AR 151, [2014] INLR 66, [2013] WLR(D) 294, [2013] WLR 2358, [2013] PTSR 995, [2013] 1 WLR 2358, [2013] 4 All ER 195 |
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Trinty Term
[2013] UKSC 51
On appeal from: [2012] EWCA Civ 51; [2013] EWHC 31 (Admin)
JUDGMENT
R (on the application of New London College Limited) (Appellant) v Secretary of State for the Home Department (Respondent)
R (on the application of West London Vocational Training College) (Appellant) v Secretary of State for the Home Department (Respondent)
before
Lord Hope, Deputy President
Lord Clarke
Lord Sumption
Lord Reed
Lord Carnwath
JUDGMENT GIVEN ON
17 July 2013
Heard on 5 and 6 June 2013
Appellant Manjit Gill QC Edward Nicholson (Instructed by Chhokar & Co) |
Respondent Jonathan Swift QC Robert Palmer (Instructed by Treasury Solicitors) |
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Intervener (Migrant's Rights Network and Joint Council for the Welfare of Immigrants) Richard Drabble QC Shahram Taghavi Charles Banner (Instructed by Charles Russell LLP) |
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Appellant Zane Malik (Instructed by Mayfair Solicitors) |
Respondent Jonathan Swift QC Cathryn McGahey (Instructed by Treasury Solicitors) |
LORD SUMPTION (with whom Lord Hope, Lord Clarke and Lord Reed agree)
Introduction
The statutory framework
"The rules laid down by the Secretary of State 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 not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."
Section 3 provides for the regulation and control of immigration by the Secretary of State. Section 3(1) provides that a person who is not a British citizen "shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of or made under this Act." Leave to enter or remain may be given for a limited or indefinite period and subject to any or all of a number of specified conditions, including "a condition restricting his studies in the United Kingdom". Under section 4(1), the power under the Act to give or refuse leave to enter the United Kingdom is exercisable by immigration officers, who at the relevant time were employees of the UK Border Agency, an executive agency of the Home Office. The power to give or to vary leave to remain for those who are already here is exercisable by the Secretary of State. At any one time, there is a substantial body of rules, discretions and practices laid down by the Secretary of State as the ultimate administrative authority responsible for the administration of the Act. Section 3(2) of the Act, provides:
"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..."
They are then subject to approval under the negative resolution procedure.
"The content of the rules is prescribed by sections 1(4) and 3(2) of the 1971 Act in a way that leaves matters other than those to which they refer to her discretion. The scope of the duty that then follows depends on the meaning that is to be given to the provisions of the statute. What section 3(2) requires is that there must be laid before Parliament statements of the rules, and of any changes to the rules, as to the practice to be followed in the administration of the Act for regulating the control of entry into and stay in the United Kingdom of persons who require leave to enter. The Secretary of State's duty is expressed in the broadest terms. A contrast may be drawn between the rules and the instructions (not inconsistent with the rules) which the Secretary may give to immigration officers under paragraph 1(3) of Schedule 2 to the 1971 Act. As Sedley LJ said in ZH (Bangladesh) v Secretary of State for the Home Department [2009] Imm AR 450, para 32, the instructions do not have, and cannot be treated as if they possessed, the force of law. The Act does not require those instructions or documents which give guidance of various kinds to caseworkers, of which there are very many, to be laid before Parliament. But the rules must be. So everything which is in the nature of a rule as to the practice to be followed in the administration of the Act is subject to this requirement."
At para 94, Lord Dyson, in a conclusion expressly endorsed by Lord Hope, at para 57, said:
"a rule is any requirement which a migrant must satisfy as a condition of being given leave to enter or leave to remain, as well as any provision 'as to the period for which leave is to be given and the conditions to be attached in different circumstances' (there can be no doubt about the latter since it is expressly provided for in section 3(2)). I would exclude from the definition any procedural requirements which do not have to be satisfied as a condition of the grant of leave to enter or remain. But it seems to me that any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of section 3(2). That is what Parliament was interested in when it enacted section 3(2). It wanted to have a say in the rules which set out the basis on which these applications were to be determined."
The points-based system: Tier 4 sponsorship
Part 6A of the Immigration Rules
"To qualify for entry clearance as a Tier 4 (General) Student, an applicant must meet the requirements listed below. If the applicant meets these requirements, entry clearance will be granted. If the applicant does not meet these requirements, the application will be refused."
Paragraph 245ZX contains corresponding provisions relating to applications for leave to remain by those who have already gained entry clearance.
"116. A Confirmation of Acceptance for Studies will only be considered to be valid if:
...
(d) it was issued by an institution with a Tier 4 (General) Student Sponsor Licence,
(e) the institution must still hold such a licence at the time the application for entry clearance or leave to remain is determined
(f) it contains such information as is specified as mandatory in guidance published by the United Kingdom Border Agency.
...
117. A Confirmation of Acceptance for Studies reference number will only be considered to be valid if:
(a) the number supplied links to a Confirmation of Acceptance for Studies Checking Service entry that names the applicant as the migrant and confirms that the Sponsor is sponsoring him in the Tier 4 category indicated by the migrant in his application for leave to remain (that is, as a Tier 4 (General) Student or a Tier 4 (Child) Student), and
(b) that reference number must not have been cancelled by the Sponsor or by the United Kingdom Border Agency since it was assigned."
The Tier 4 Sponsor Guidance
"WHAT IS SPONSORSHIP?
1. Sponsorship is based on two fundamental principles:
• those who benefit most directly from migration (that is, the employers, education providers or other bodies who are bringing in migrants) should play their part in ensuring that the system is not abused; and
• we need to be sure that those applying to come to the United Kingdom to do a job or to study are eligible to do so and that a reputable employer or education provider genuinely wishes to take them on.
2. Before a migrant can apply to come to, or remain in the United Kingdom to study, he/she must have a sponsor. The sponsor will be an education provider in the United Kingdom that wishes to provide education to a migrant. Sponsorship plays two main roles in the application process:
• it provides evidence that the migrant will study for an approved qualification; and
• it involves a pledge from the sponsor that it will accept the duties of sponsoring the migrant."
Unlawful delegation
Absence of statutory power
Absence of statutory authority
Conclusion
LORD CARNWATH
"... the general proposition that when a power is claimed to be incidental, the provisions of the statute which confer and limit functions must be considered and construed." (p 31D)
In that case the alleged power to enter into swap transactions had to be considered in the context of the specific provisions governing local authority borrowing. Similarly, in Barry the scheme for vetting door-staff was incidental, not to the council's regulatory powers in general, but to the particular power for licensing places for public entertainment. In each case the source of the incidental power was found in a specific provision conferring specific functions.
"120. It seems to me that, as a matter of ordinary language, there is a clear distinction between guidance and a rule. Guidance is advisory in character; it assists the decision maker but does not compel a particular outcome. By contrast a rule is mandatory in nature; it compels the decision maker to reach a particular result."
By that test, there are parts of the guidance which are clearly "mandatory" in nature, and so described in the document. I did not understand Mr Swift to argue otherwise. However, I would not necessarily accept that such compulsion is an essential characteristic of "rules" in the ordinary use of that word. For example, rule 323A to which I have referred, providing for the circumstances in which leave to enter "may be curtailed", is properly included in the body of "rules", even though its effect is not to compel a particular result in any case, but rather to define the criteria governing the exercise of the discretion.
"The truth is that the court will invalidate an order only if the right remedy is sought in the right proceedings and circumstances. The order may be a 'nullity' and 'void' but these terms have no absolute sense: their meaning is relative, depending upon the court's willingness to grant relief in any particular situation. If this principle of legal relativity is borne in mind, the law can be made to operate justly and reasonably in most cases through the exercise of remedial discretion…" (p 253)