Change outlook towards framing immigration rules: JCWI suggests

`Immigration Rules matter. They determine who can come into the country’

23rd December 2010: The outlook towards framing immigration rules needs to be changed —this is what Joint Council for the Welfare of Immigrants has to say after emerging victorious in the judicial battle against interim limit.
Soon after the High Court verdict against the temporary cap, JCWI has asserted the immigration rules are still framed the way they were in First World War, when broad powers unconstrained by Parliamentary control were given to the executive to deal with the German spies.

The JCWI asserts: `It is worth recalling that Immigration Rules matter. They determine who can come into the country and remain here, and on what terms.

`They have significant implications not only for migrants and host communities, but for the operation of the welfare state and the many businesses and universities who all to some extent rely upon such labour. So too at the macro-level do they have implications for the economy as a whole.

`Despite the importance of the Rules, and  their ever- growing significance for different sections of society in an increasingly globalised world, the nature of Immigration Rule making has largely remained steeped in its First World War origins. During the First World War the Executive maintained broad powers unconstrained by Parliamentary control on the grounds that this was necessary to deal with German spies’.

JCWI adds: `The High Court’s judgment in relation to our joint challenge along with the English Community Care Association is a welcome development.

`It confirms once again that the Government cannot altogether simply sideline Parliament’s role in scrutinising its Immigration Rules – in this case the numerical limits it sought to impose as part of the interim cap scheme.

`It also of course has significant implications for the migrants who were affected by the imposition on an unlawful interim cap.

`In essence the Court found that the Government had acted unlawfully because it had failed as obliged by section 3(2) of the Immigration Act 1971 to tell Parliament what its rule changes were though the medium of formally laying those changes before it. 

`Up until last Thursday the Government had been arguing that its powers to set numerical limits for the interim cap were altogether exempt from this requirement. Their disingenuous argument was in essence that the numerical limits themselves (as opposed to the introduction of the limits) were not material changes, and not therefore technically part of the changes to the Immigration Rules.

`Mercifully the Court rejected this line of argument. To have done otherwise would have been tantamount to giving the Home Secretary a near unilateral power, unconstrained by law, and indeed Parliament, to set any limit in relation to the cap.

`The implication that would flow from this is that the Home Secretary would have been given a power to set the limit from anywhere from zero to 100,000. It short, such a judgement would have been entirely at odds with any understanding of parliamentary democracy.

`It can’t have escaped the attention of most  that in response to Friday’s ruling the Government has now decided to lay its Statement of Changes before Parliament. These changes now bring the quantum of the limit into the Rules.

`For tier 2 the numerical limit for certificates of sponsorship for tier 2 employers is 10, 832 and has immediate effect, and tier 1 (General) for overseas applicants is closed with effect from 23rd December 2010. Whilst the laying of these rules is not consistent with Parliamentary convention which requires 21 days notice, it certainly not unlawful, so what can we glean from this?
`In essence this should serve to highlight the serious shortcomings in the way we actually make Immigration Rules. The problems are two-fold. Firstly unlike statutory Bills, or some secondary legislation that is subject to the affirmative resolution procedure, the numerical limits and other changes to the Immigration Rules do not actually require express approval from Parliament before they come into effect – they are subject instead  to the negative resolution procedure.

`As such as is the case here they may not even be debated, scrutinised or considered at all before they come into effect.

`A second problem can be exemplified through this case. Assuming the numerical limits relating to Tier 2 (General) were subsequently debated and disapproved by Parliament, the effect of the Immigration Act 1971 would be that the offending quantum contained in the rule itself would still in fact remain in force.

`It would in fact remain valid until such time as new rules were placed before Parliament. This is because Parliament has no power under section 3(2) of the Immigration Act 1971 to actually annul the Rules themselves- only the Statement of Changes’.

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