1. Introduction to the UK Immigration Rules
The UK Immigration Rules are an extensive and important document. They set out the bases on which people may enter and stay in the UK, how applications are decided, and what conditions are attached to grants of permission – and so are of fundamental importance to migrants, their advisors, Home Office staff, and judges alike. The Immigration Rules are also ballooning in length, subject to frequent change, and notoriously complex. Aspects of the Rules have been described by judges as possessing “a degree of complexity which even the Byzantine Emperors would have envied” (Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 at [4]).
In this post, we will consider what the Immigration Rules are, how courts and tribunals approach their interpretation, and what role is played by the Home Office’s guidance documents in their application and interpretation.
2. What are the UK Immigration Rules?
On one hand, what the UK Immigration Rules do is relatively easy to describe: they set out how the Home Secretary will exercise her powers under the Immigration Act 1971 (‘the 1971 Act’) to regulate the entry and stay of people who lack the right of abode in the UK. However, both the precise character of the Rules, and the legal basis for making them, has previously been the subject of some debate. The courts have since clarified that the source of the Home Secretary’s power to make the Rules is found in the 1971 Act (R (Munir) v Secretary of State for the Home Department [2012] UKSC 32, R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33).
The courts have also confirmed that the Immigration Rules are not secondary or delegated legislation (Odelola v Secretary of State for the Home Department [2009] UKHL 25 at [6], Alvi, at [33]), prompting the Law Commission to suggest that they ought to be viewed as
“a unique form of legal text, not equating exactly to delegated legislation but having some of its characteristics […] a hybrid of administrative policy and legal rules” (Law Commission, Simplification of the Immigration Rules, Consultation paper 242, 21 January 2019, para 3.21)
For details about how changes to the Immigration Rules are made and scrutinised, please refer to our previous article entitled The Process of Making Changes to The Immigration Rules.
3. The Legal Basis for the Immigration Rules
How, then, is the interpretation of this ‘unique form of legal text’ to be approached? This question will be of particular interest in circumstances where, in an immigration appeal, an appellant and the Home Office disagree about the meaning of a particular provision in the Rules.
The leading authority on the approach to interpreting the Rules is Mahad v Entry Clearance Officer [2009] UKSC 16. In his judgment in that case, Lord Brown first quoted (at [10]) with approval Lord Hoffman’s statement in Odelola (at [4]) that the interpretation of any provision in the Rules depended on the language used, construed against the relevant background, which involved
“a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy.”
Lord Brown then added that:
“The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy”
The interpretation of the UK Immigration Rules was also the subject of the recent Supreme Court decision in R (on the application of Wang and another) v Secretary of State for the Home Department [2023] UKSC 21.
Ms Wang had signed up to a scheme intended to allow participants to meet the requirements for leave to remain under the Tier 1 (Investor) rules. She argued that the context and rationale of the Points-Based System (PBS) was a desire for simplicity and predictability. The relevant rules were a tick-box exercise, and it was impermissible for a decision-maker to look at the scheme in the round if all the relevant boxes appeared to have been ticked.
In his judgment for the court, Lord Briggs reviewed the statements in Mahad and Odelola and concluded that
“Neither of these dicta suggest that, apart possibly from a relaxation of strictness, the interpretation of the Immigration Rules involves any significant departure from the general principles of statutory construction.” (at [31]).
In particular, they were not inconsistent with one of these general principles (identified as such by the Supreme Court in Rossendale Borough Council v Hurstwood Properties (A) Ltd [2021] UKSC 16), namely that courts were to
“give the statutory provision a purposive construction in order to determine the nature of the transaction to which it was intended to apply and then to decide whether the actual transaction (which might involve considering the overall effect of a number of elements intended to operate together) answered to the statutory description.” (Barclays Mercantile Business Finance Ltd v Mawson [2004] UKHL 51, at [32]).
As the term ‘transaction’ suggests, this so-called Ramsay principle has most often been deployed in the context of analysing tax avoidance schemes, but it is a general principle of statutory interpretation (see Rossendale at [9]). The aims of the PBS did not displace this approach, either, so that it was appropriate and necessary for decision-makers to take
“an unblinkered and realistic view of the facts to which the PBS regime is to be applied, for the purpose of deciding whether the requirements for achieving the specified scores are met. And where those facts include the use of a pre-ordained multi-step scheme […] nothing in the Immigration Rules or in those cases requires the adjudicator (or the court on appeal or application for judicial review) to blinker itself to the reality revealed by appraising such a scheme in the round. (Wang, at [33])
This did not mean that, where an applicant did tick all the required boxes in a PBS application, the decision-maker could decide to refuse on the basis that for whatever reason the applicant
“appears to fall outside the general suitability for migration which the Secretary of State might be supposed to have intended” (Wang, at [34]).
The tick box approach of the points-based system might at times exclude apparently deserving applicants, and at others confer benefits on people that, viewed in the round, might not have been intended to be beneficiaries. That was part of the way the system operated.
4. The Role of Home Office Guidance
The Home Office’s caseworkers have an array of guidance documents available to them, to assist their decision-making (guidance is also produced for employers and educational institutions sponsoring migrants). With exceptions for sensitive material, much of this is available to the general public. The interplay between these instructions or guidance documents and the Immigration Rule is complex.
Unsurprisingly, guidance must not be inconsistent with the Rules (Immigration Act 1971, Schedule 2, paragraph 1(3)). Unlike the Rules (see here), guidance documents are not laid before Parliament.
It seems logical, then, that the Home Secretary should not be able to refuse immigration applications on the basis of requirements contained in caseworker guidance but not the Immigration Rules themselves. Indeed, this is the clear principle underlying the Supreme Court decision in R (on the application of Alvi) v Secretary of State for the Home Department [2012] UKSC 33.
Lords Hope and Dyson agreed that “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)” of the 1971 Act and therefore needed to be laid before Parliament (per Lord Hope at [57]; as did provisions regarding the period of leave granted and any conditions attached, this being specifically required by s 3(2)). Elsewhere, Lord Dyson added that the “key requirement” was that the Rules “should include all those provisions which set out criteria which are or may be determinative of an application for leave to enter or remain.”
However, as the Law Commission noted, determining when something is a rule within the meaning of section 3(2) is often not straightforward, as illustrated by Lord Dyson and Lord Hope’s disagreement about how to characterise the provision at issue in Alvi (Consultation paper, para 3.36).
In R (Munir) v Secretary of State for the Home Department [2012] UKSC 32 (decided at the same time as Alvi), the Supreme Court confirmed that the Immigration Act 1971 provides the Home Secretary with a residual power to grant leave even where the requirements of the Rules are not met. This meant that the Home Secretary was entitled to issue ‘concessionary policies’, and, as long as they provided that a particular rule may be relaxed in certain circumstances rather than that it would always be relaxed, they did not need to be laid before Parliament under section 3(2) of the 1971 Act (at [17]-[18]).
An example of this is the Home Office’s policy on granting ‘Restricted Leave’ to certain failed asylum seekers, which was held to be sufficiently flexible so as to fall outside the scope of section 3(2) in MS & Anor v The Secretary of State for the Home Department [2017] EWCA Civ 1190. Other examples include the Home Office’s policies on granting Discretionary Leave and Leave Outside the Rules.
5. Influence of Home Office Guidance
Since the correct approach to interpreting the Rules (see above) is to focus on the natural and ordinary meaning of the language used, guidance documents generally have no role to play in this assessment (Mahad, per Lord Brown at [10]).
However, while it is never permissible for the Home Secretary to rely on guidance to convince a court or tribunal to interpret a provision of the Rules more harshly, where the wording of the Rules is ambiguous and guidance adopts an interpretation favourable to applicants, this fact may exceptionally be taken into account: Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 at [42]-[43] (per Jackson LJ).
Where the Home Office adopts a policy – for example, when leave may be granted despite an applicant not meeting all requirements, or how caseworkers should proceed where mandatory documents to support an application are missing – this generates legal effects according to established public law principles. These include that decision-makers cannot depart from a policy unless there are good reasons for doing so (R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2011] UKSC 12 at [26] (Lord Dyson), and that, where there is disagreement as to the proper interpretation of a policy, the courts decide for themselves what the policy means, rather than merely assessing whether the Secretary of State has adopted a reasonable reading (Mandalia v Secretary of State for the Home Department [2015] UKSC 59 at [31] (Lord Wilson). However, the question of how a policy applies to the facts of a particular case remains subject to reasonableness review only (R (Begum) v Secretary of State for the Home Department [2021] UKSC 7 at [44] (Lord Reed)).
These principles thus provide scope for applicants or appellants to rely on guidance in a number of circumstances, while preventing the Home Secretary from toughening up the Rules without making changes to them directly and following the required procedure.
6. Conclusion: Navigating the Complexity of the Immigration Rules
This article considered the nature of the UK Immigration Rules, the approach taken to their interpretation by the courts, and the role that policy guidance plays in the UK immigration system.
Following the Law Commission’s 2020 report on simplifying the Immigration Rules, the government committed to fully or partially implementing all of its recommendations. However, despite the government’s efforts to consolidate and reorganise the Rules over time, complexity remains a feature of the UK Immigration Rules.
For expert advice and assistance about making a UK immigration application, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
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