Love Knows No Borders: Home Office defeated in landmark case

Sometimes, the battles for a fairer and more transparent immigration regime are not fought on the streets or in Parliament, but in the courtroom. We were reminded of the power of the courts by yesterday’s landmark defeat of the Home Office in the Supreme Court. The decision in the case of Alvi [2012] UKSC 33 struck down the Home Office’s efforts to introduce major changes to immigration requirements – many of which we have been highlighting in this blog series.

The Home Office has attempted to strategically avoid Parliamentary debate by making these changes in policy guidance and instructions, rather than in immigration rules laid before Parliament. For years now, the Home Office has been able to sneak around Parliament by tinkering with policy guidance. And these are serious changes, not minor amendments.

[h4]What does this mean?[/h4]

This decision means that many of the changes made under the points-based system (PBS) of skilled migration, family migration rules, and visitor’s visas could be illegal because they were never directly approved by Parliament. The Home Office has issued a statement that the situation for applicants under the visitor, PBS and family route has not changed, and the evidence will now simply be specified in the rules instead of the guidance. Although the House of Commons is currently on recess, Theresa May plans to lay a statement of changes in front of the House of Lords today, to come into force tomorrow, July 20, in order to ‘safeguard their lawful operation’.

The Home Office has not made clear what the situation will be for those who were refused under the illegal rules, but it could open the door for thousands of challenges from applicants who were refused, dating as far back as 2008. The Guardian quoted immigration lawyers, who even claim that the decision represents ‘the wholesale collapse of the legal framework of immigration policy in the UK’.

[h4]Implications of the decision are still uncertain[/h4]

Whatever the implications of this decision, it makes one point very clear: many of the recent changes to family migration, which we have covered in our blog series, were never subject to proper parliamentary scrutiny. This includes those related to the income threshold of £18,600, for example: that only the income of the British sponsor be taken into account, that this income level must have already been maintained for six months, and that no third party sponsorship is permitted. The highest court of this country has deemed these changes unlawful. Now, Theresa May has made an emergency move to usher them into law by quick approval from the House of Lords.

When criminals do something unlawful, they must typically suffer the consequences. When the Home Office does something unlawful, they employ ‘emergency measures’ to make the illegal legal. In all likelihood, they will do so within the span of a day. Immigration debates are rarely so Kafkaesque.

[h4]Is this the state of British democracy?[/h4]

My issue with all this is that there has still not been a proper debate in Parliament about some of the most controversial elements of the rule changes on family migration. They were initially laid before parliament on June 13 under the negative resolution procedure, which meant that they did not have to be formally ratified by Parliament. So, in one of the world’s proudest democracies, there has never actually been a proper debate on a series of legislative and rule changes that will tear apart as many as 15,000 families.

The Supreme Court decision is an encouraging development; immigration rules should be put to parliamentary and public scrutiny. However, if and when the House of Lords passes the rule changes into law, their decision to do so will be no more transparent or representative of the people it affects than the ‘back door’ policies of the Home Office in the first place. The decision will be rushed, because it constitutes an ‘emergency’ – and dissenters will be ignored yet again.

[h4]We deserve better[/h4]

We at the Forum believe that British citizens deserve better than this. British families deserve better than this. The hundreds of concerned individuals who attended last week’s meeting in parliament deserve better than this.

Sometimes, when we get caught up in the politics of immigration, we forget that migrations are cultural events rich in meaning for individuals, families, social groups, communities and nations. Reading the British press, one could often forget that migrants are, in fact, people too. We must remember that migration is ultimately a human experience. In turn, the British Government should, at the very least, have the humanity to listen to those affected, and debate the issues in the policy guidance and instructions fairly in Parliament.

Yesterday’s court decision is a step in the right direction, but today we are already seeing the Government trying to sidestep justice once more.

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