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In a landmark decision on immigration rules, the Supreme Court ruled that a significant part of the UK Border Agency’s practice is unlawful by virtue of the fact that requirements that can be determinative of immigration applications have not been laid before Parliament as required by the Immigration Act 1971, but instead have been simply set out in governmental “Guidance” documents and other documents external to the Immigration Rules. In particular the ruling has a profound impact upon the current corporate immigration system. The Court ruled that the UK Border Agency’s requirements set out in the codes of practice and the standard occupational classification scheme (including salary level, skill levels and advertising requirements) cannot be relied upon by the UK Border Agency to refuse employer’s applications for a Certificate of Sponsorship, or visa applications by employees. As the law now stands, employers and employees will not be bound by any mandatory requirements that are not set out in the Immigration Rules themselves. Lord Dyson said: “The key requirement is that the immigration rules should include all those provisions which set out criteria which are or may be determination of an application for leave to enter or remain”. The Court also categorically ruled that the source of immigration law is not the Royal Prerogative, as was suggested by the House of Lords in the earlier decision of Odelola v. SSHD [2009] 1 WLR 1230, but statutory law governed by the 1971 Act. Richard Drabble QC and Charles Banner (together with Shahram Taghavi of Lewis Silkin LLP) appeared for the Joint Council for the Welfare of Immigrants, which was the lead party opposing the Secretary of State’s appeal to the Supreme Court.
