Chapter 1

1.2.1 Twenty-first century

The UK Border Agency came into being in April 2008.

On 14th July 2008 the government released a partial draft of its Immigration and Citizenship Bill which was intended to replace all existing immigration statutes. The majority of the Bill’s 214 clauses dealt with enforcement – detention, offences, civil penalties, expulsion and so on. Many of its provisions consolidated existing measures, but there were some new concepts. On 11th November 2008 the Home Affairs Committee suspended its scrutiny of the Bill, as the Committee felt unable to continue until the whole Bill had been published. The Bill was shelved, and a completed Bill is promised for October/November 2009.

In the meantime the elements of the Bill which dealt with the new idea of a progression towards citizenship, in place of existing nationality laws, were republished in a Borders, Citizenship and Immigration Bill which received Royal Assent in July 2009. The Act includes provisions for functions to be transferred from HM Revenue & Customs to officials of the UK Border Agency, thus progressing the creation of the single border agency which deals with immigration, policing and customs. The Act includes miscellaneous other provisions related to immigration which are referred to in updates to other chapters where relevant.

1.3.1 Prerogative origins?

In Odelola v SSHD [2009] UKHL 25 the House of Lords referred to the prerogative as the source of the power of the Secretary of State to control immigration. It remains to be seen what response there will be to this surprising development. In support of this view, they pointed out that the first immigration rules predate the Immigration Act 1971.

1.3.1.1. A modern equivalent?

In a very important judgment, the Grand Chamber of the ECtHR added a phrase to that with which the Court often begins its judgements, referred to in this section of the textbook in the context of Abdulaziz, Cabales and Balkandali. The Court said:

It is the Court's settled case-law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens. Saadi v Italy Application no. 37201/06 28th February 2008, para.124.

By including the words ‘including those arising from the Convention’, the Court makes it clear that immigration powers are subject to human rights, not the other way round.

1.3.3 The Immigration Rules

The nature of the immigration rules was discussed in Odelola v SSHD [2009] UKHL 25. The House of Lords confirms that the immigration rules are not subordinate legislation, but are in a unique category of their own. They regarded s. 3(2) not as a duty to make immigration rules, but as a procedural duty to lay them before Parliament. The power to make immigration rules they say derives from the prerogative.

1.3.4 Policies and concessions

DP 3/96 was revoked on 24th April 2008 (Hansard HC Column 110WS). DP 5/96 was formally withdrawn on 9th December 2008.

The Operational Guidance Manual has been renamed ‘Enforcement Instructions and Guidance’.

Lord Justice Sedley in ZH (Bangladesh) v SSHD [2009] EWCA Civ 8 made some remarks about the legal and evidential status of the Home Office’s Immigration Directorate Instructions. He described the IDIs as directions about the implementation of the rules (para 26) and said that Home Office officials should not depart from the IDIs without good reason. If they did depart from them in a particular case, they should be ready to explain the divergence to the AIT (para 33). This reflected the legal obligation of the government not to act inconsistently with its own policy unless there was a good reason for doing so (British Oxygen v Board of Trade [1971] AC 610, ZH para 33). On the other hand, the IDIs did not have the force of law. They were not an aid to construction of the immigration rules, but sat ‘within the four corners of the rule’ to which they related (para 32).

1.3.5 Tribunal decisions

Baroness Hale in SSHD v AH (Sudan) [2007] UKHL 49 para 30 expressed the view that higher courts should respect the decisions of expert tribunals, not of course if they are actually wrong in law, but not being over-assiduous to find fault with the way a tribunal had expressed itself: ‘Their decisions should be respected unless it is quite clear that they have misdirected themselves in law.’ Carnwath LJ in The Queen on the Application of A and others [2007] EWHC 142 (Admin) said that Baroness Hale’s words should not be taken to imply a new restriction in the court’s jurisdiction to decide points of law on appeal from the AIT.

Reading list:

Clayton, G. (2008) ‘Transparent and trusted’: the immigration rules in 2009?’ Immigration Law Digest, Vol. 14 no. 2 Summer 2008.
Harvey, Alison (2008) The Draft (Partial) Immigration and Citizenship Bill and Related Documents Journal of Immigration Asylum and Nationality Law Vo. 22 no.4 pp. 322-332
Quayum, Mahmud and Chatwin, Mick , ‘The Demise of the Commonwealth’ Journal of Immigration Asylum and Nationality Law vol. 23. no. 1 pp.51-59

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