Alvi and The Immigration Rules

We write about the Supreme Court Judgment on 18th July (see our earlier article here LINK) in the case of R(Alvi) v Secretary of State for the Home Department, in whichthe Court found that “any UK immigration requirement which, if not satisfied by the migrant, would lead to an application for leave to remain or enter being refused, is a ‘rule’ within the meaning of Section 3(2) of 1971 Immigration Act.”

Following the decision in Alvi, the UKBA issued a Statement of Changes on 20 July 2012. The Statement encompassed immigration requirements in place since 1994, which until that point were only to be found in UKBA guidance notes.

The effect of Alvi is that any proposed changes or introductions by UKBA must be reviewed and sanctioned by Parliament before being incorporated into the Immigration Rules – the Statement of 20 July serves as an illustration of UKBA’s observance of the Court’s ruling.

Unfortunately whilst the July Statement, implemented UKBA guidance into the Immigration Rules there were some omissions.  As a result, the Border Agency issued a further Statement on 5 September 2012. The changes contained therein were applicable the following day.

The key aspect of the specific post “Alvi” guidance issued to UKBA caseworkers is that applications pending will be determined by “applying the Immigration Rules, as amended on 20 July and 6 September 2012, in force on the date the application is decided”.

In cases decided pre-20 July, in which there is now an appeal or judicial review pending, the guidance advises caseworkers that if there is evidence that applicants met the rules as they were prior to the July changes, then the decision to refuse should be withdrawn and the application reconsidered.

Applications which were refused and which are now appeal or judicial review time barred will not be reconsidered.