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Barnes Harrild & Dyer, are specialist immigration solicitors based in Croydon. We write this Article ... Read more ›

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23

Sep 2012

Old immigration refusals need revisiting in view of new Supreme Court immigration case of Alvi

R (on the application of Alvi & Munir) v SSHD [2012]UKSC 33 is relevant to the statutory interpretation of the Immigration Act 1971 that rules, and statements of practice must be laid before Parliament. The Judgement has implications to many old and new cases. The Case of Alvi was decided by the Supreme Court, and its opinion therefore binding upon all UK courts.

The case concerned the true interpretation of section 3(2) of the Immigration Act 1971 and the system of immigration control maintained by the Secretary of State. The court stated that Prerogative powers could not be used to modify the law because the scope of immigration control was defined by the 1971 Act, and that rules or statements of practice needed to be laid before Parliament for approval.

Lord Hope set out the test for a “rule” as being  

“any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). A provision which is of that character is a rule within the ordinary meaning of that word. So a fair reading of section 3(2) requires that it be laid before Parliament.

The impact of this case on old and new immigration cases is significant. By example, the applicant in Alvi challenged the SSHD’s requirements for qualifying jobs to be skilled at NSVQ levels 3 or above. He argued that the criteria should not apply due to the qualifying job lists not being introduced by the Secretary of State lawfully before Parliament. The Supreme Court held that such job skill requirements ought to have been laid before Parliament and as it was not, the practice of the Secretary of State was unlawful.

The Secretary of State has moved quickly to introduce many statements of policy and guidance into the immigration rules to deal with future applications. However, it will be interesting in the coming months to uncover further examples of the Secretary of State continuing to apply unlawful criteria.

At Barnes Harrild & Dyer we have re-opened cases of clients who were refused due to requirements that were not properly laid before Parliament by preparing fresh applications relying upon the Alvi ruling.

Many genuine foreign nationals who now find themselves without leave to remain in the UK may now be entitled to apply for a grant of Discretionary Leave to Remain in the UK on human rights grounds and should seek professional advice and representation.

Posted in News by BHD

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