Immigration: when is a rule not a rule?

Recent case law has established that, in certain contexts, changes to the secretary of state's immigration policy cannot be made through supplementary guidance and instead must be contained in the Immigration Rules themselves. Those advancing applications for leave to remain in accordance with the Immigration Rules may therefore be able to argue that a particular change that has disadvantaged them is not effective.

The Immigration Rules occupy a peculiar status in public law in that they fall somewhere between being subordinate legislation on the one hand and a statement of policy on the other. In Pankina v Secretary of State for the Home Department [2010] EWCA Civ 719, the Court of Appeal said 'the time has come to recognise that'¦ the rules made by home secretaries for regulating immigration have ceased to be policy and have acquired a status akin to that of law'.

In Agubata v Secretary of State for the Home Department [2012] EWCA Civ 140, the Court of Appeal ruled that the secretary of state's guidance for tier 4 students ought to be applied flexibly and in light of the full circumstances of the case, holding: 'There is a clear distinction to be drawn between mandatory requirements contained in statutory rules and policy guidance. The latter should be applied in a flexible and common sense manner so that a statement that sponsorship can be provided by X and Y should not be interpreted as meaning that sponsorship cannot be provided by Z.

Plainly, if an applicant's case falls squarely within the guidance then the application will be granted but it does not follow that if the applicant's case falls outside the guidance it will necessarily and for that reason only have to be refused.'

'Spectrum' of changes

The consequence of the new recognition of the unique status of the Immigration Rules was that changes to the rules could not be made by the medium of policy guidance documents that had not themselves been subject to the procedure for parliamentary scrutiny which the rules are subject to. However, changes in this complex area are constantly required and it is obviously more convenient for the secretary of state to make changes by amending supplementary guidance documents instead of amending the rules themselves. The principle established in Pankina is therefore of broad general importance. This principle is not unlimited, however. There has been a string of cases following Pankina that have attempted to define the scope of the prohibition on changes being introduced by policy guidance.

The case of R (Castro) v Secretary of State for the Home Department [2012] EWHC 281 (Admin) concluded that there was a 'spectrum' of changes '“ the key question being whether the change 'was a change that operated to change (and change materially) 'a substantive criterion for entry''. What is at the other end of the spectrum is not entirely clear; it has been suggested that such changes are to be contrasted with 'minor' alterations in practice.

Another formulation, provided by Singh J in R (Ahmed) v Secretary of State for the Home Department [2011] EWHC 2855 (Admin), is the suggestion that the distinction is to be drawn between substantive requirements on the one hand and the means of proving that such requirements are met on the other. In practice, it is thus not altogether straightforward to predict which changes will fall on which side of the line.

Watchful eye

The main lesson for practitioners is that it is necessary to maintain constant vigilance regarding changes to the rules and/or policy guidance applying in immigration matters. Where there is a beneficial entitlement then no time should be lost in submitting an application in the correct, up-to-date form and with the correct supporting information to take advantage of it. This is one major service that solicitors can perform for their clients because without professional representation it is hard to see, as Longmore LJ observed in Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773, 'how any individual whom the rules affect can discover what the policy of the secretary of state actually is at any particular time'.

If a change has occurred and the application has been refused as a result, then careful thought needs to be given as to how the matter should be approached. Frequently by the time a fresh application is submitted there has been some other change so that it too is refused. Or it may become too late to challenge the initial refusal. Thus consideration needs to be given at an early stage as to whether the refusal may be susceptible to judicial review on Pankina grounds. The dividing line is not altogether clear. What must be found in essence is a 'substantive' change, 'materially' affecting the client's entitlement to remain in this country.

Ironically, the law in this area is itself in a process of rapid and almost constant change. The Supreme Court will be considering the correctness of Pankina in April and practitioners should therefore monitor developments accordingly.