Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719

Case Nos: 1.C5/2009/2655, 2.C5/2009/1943, 3.C5/2009/1882,4.C5/2009/2068, 5.C5/2009/1849, 6.C5/2009/1843[2010] EWCA Civ 719
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[4]IA/08933/2009, 5. IA/04254/2009, 6. IA/01188/2009 Royal Courts of Justice Strand, London, WC2A 2LL Date: 23/06/2010 Before : LORD JUSTICE SEDLEY LORD JUSTICE RIMER and LORD JUSTICE SULLIVAN - - - - - - - - - - - - - - - - - - - - - Between : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -[1]Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the Appellant Mr Michael Fordham QC and Mr Shahram Taghavi (instructed bySimons Muirhead & Burton) for the Respondent[2]Mr Louis Lourdes (instructed by PG Solicitors) for the Appellant Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the Respondent[3]Mr Zane Malik (instructed by Malik Law Chambers) for the Appellant Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the Respondent[4]Mr Zane Malik (instructed by Malik Law Chambers) for the Appellant Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the Respondent[5]Mr Raza Husain QC and Mr Ronan Toal (instructed by Thompson & Co) for the Appellant Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the Respondent[6]Ms Margaret Phelan (instructed by Thompson & Co) for the Appellant Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the Respondent Hearing dates: 25 and 26 May 2010 - - - - - - - - - - - - - - - - - - - - - Judgment

Lord Justice Sedley :

[1]Although the issue which each of these appeals raises looks on its face marginal almost to the point of triviality, it is an issue of constitutional importance and of real difficulty. The issue is whether the executive, in rules which are required, subject to parliamentary oversight, to set out how it proposes to exercise its statutory functions, can lawfully reserve to itself the power to add to or modify those rules. It raises questions about the constitutional status of the immigration rules and about their relation to departmental policy and human rights.

How the issue arises

[2]All the individuals before the court (I will call them applicants, since one is a respondent and the others are appellants) are graduates of approved United Kingdom tertiary institutions who now wish to remain and work here. The immigration rules have for a long time recognised that, subject to proper controls, such individuals can be an asset to this country. The amendments to the rules promulgated as HC 321 and laid before Parliament on 6 February 2008 introduced a points-based system for assessing their eligibility. This was amended by HC 607, laid before Parliament on 9 June 2008, so as to make the provision that was operative at the time when the present applicants sought leave to remain as Tier 1 migrants, a class created “to encourage international graduates who have studied in the UK to stay on and do skilled or highly skilled work” (rule 245V).[3]By rule 245Z such applicants must meet a series of requirements, one of which is to have a minimum of 10 points under paragraphs 1 and 2 of Appendix C. Paragraph 2 of Appendix C as amended requires the applicant to have “the level of funds shown in the table below” and to provide “the specified documents”. The table contains a single figure, £800, to which it allocates a single value of 10 points (why a table is necessary for this purpose is an enigma we are not required to solve).[4]The “specified documents”, according to rule 245AA, are “documents specified by the Secretary of State in the Points Based System Policy Guidance as being specified documents for the route under which the applicant is applying”. Failure to produce these will, the rule says, mean failure to meet the requirement to which they relate.[5]In the policy guidance issued in June 2008 the material class of specified documents is “personal bank or building society statements covering the three-month period immediately before the application” and showing among other things “that there are sufficient funds present in the account (the balance must always be at least … £800 ….)”. In November 2008 this provision was reorganised so as to transfer the continuity requirement from a parenthesis in the description of the specified document to a bullet point under an introductory cross-heading preceding the cross-head “Documents we require”. It now read:
“Applicants … must have at least £800 of personal savings which must have been held for at least three months prior to the date of application.”
[6]The change emphasises what the applicants’ counsel submit is the reality of this part of the policy guidance: that it goes well beyond simply specifying the means of proving eligibility and introduces a substantive further criterion which did not form part of the statement of rules laid before Parliament. It is moreover at this hurdle alone that all but one of the applicants, who are otherwise qualified for leave to remain, fell. Their bank statements showed the requisite sums of £800, but not for three unbroken months preceding their applications.

The constitutional problem

[7]The objection to the use of policy guidance to erect the three-month hurdle lies initially in the primary legislation now governing immigration control, the Immigration Act 1971; but from there it travels into constitutional territory which is still not fully explored.[8]We have been provided by the parties with a section of the printed case prepared by Treasury counsel for the House of Lords in Odelola v Home Secretary [2009] UKHL 25, which sets out and documents the forms of provision made since the first Aliens Act was passed in 1905 for the administration of the prerogative power of immigration control. From an immigration officer’s discretionary (but appealable) judgment under the 1905 Act as to whether an immigrant was undesirable, the system had moved by 1920 to a requirement that aliens must fulfil requirements prescribed in instructions given to immigration officers by the Home Secretary. This model was reproduced in the Aliens Order 1953 and again in the Commonwealth Immigrants Acts 1962 and 1968.[9]It was the Immigration Appeals Act 1969 which introduced a judicialised system of adjudicators, with appeal to an Immigration Appeal Tribunal, for reviewing decisions adverse to Commonwealth citizens – that is to say, persons who had, or had had, certain rights vis-à-vis the Crown. Such appeals would succeed if the challenged decision or action was “not in accordance with the law or with any immigration rules applicable to the case” (s.8(1): my reason for italicising the word “or” can be seen in §16 below). The 1969 Act went on to do two things which, in retrospect, can be seen to have consciously initiated a division between what had become immigration rules and policy simpliciter. S.24(1) defined immigration rules as “rules made by the Secretary of State for the administration of [control on and after entry], being rules which have been published and laid before Parliament”. S.8(2) provided that for appeal purposes “no decision or action which is in accordance with immigration rules shall be treated as having involved the exercise of a discretion by the Secretary of State by reason only of the fact that he has been requested … to depart, or to authorise an officer to depart, from the rules and has refused to do so”.[10]In other words, immigration rules had now by law shed the primary characteristic of policy – flexibility – and were required to have at least tacit parliamentary approval. I will come below to the constitutional significance of this. Its immediate result was that the prior existence of a system of departmental rules and instructions, with a status distinct from that of ordinary policy, enabled s.1(4) of the 1971 Act to begin with the definite article: The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.[11]Having made this provision for the content of the rules, the Act went on in s.3(2) to provide for their formal submission to parliamentary scrutiny: The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality). If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid). Completing the circle, “immigration rules” were defined in s.33(1) as “the rules for the time being laid down as mentioned in section 3(2) above”. Thus care was taken to preserve immigration rules as an established category. In other words, although the 1969 Act was repealed and replaced by the 1971 Act, the rules by then had a life of their own.[12]The constitutional hybridity of the immigration rules has been commented on on several occasions by the courts. Most recently, in Odelola v Home Secretary [2009] UKHL 25, Lord Hope (§6) said:
“The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under s.84(1) of the Nationality, Immigration and Asylum Act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules.”
[13]The present cases make it necessary to go somewhat further. So far as this court knows, the provision made in the 1971 Act for what have become known as the Immigration Rules is not merely unusual but unique. This is perhaps less surprising when one recalls that the same Act made two other dramatic constitutional innovations, both unprecedented in peacetime: by s.3(8), in relation to issues of nationality, it reversed the principle of habeas corpus that it is for the state to justify any deprivation of liberty; and by §2(2) and (3) of Sch. 3 it introduced administrative detention of persons subject to deportation.[14]The legal system is today familiar with statutory codes which are not law but can be adduced in evidence, and with ministerial policies to which regard must be had in taking a lawful decision. The nature and status of these is generally clear from the legislative framework in which they operate, and the courts have ultimate control of their legality. Likewise the nature and status of delegated legislation is ordinarily discernible from the primary empowering legislation; here too a material transgression of the primary powers will generally result in invalidity. Importantly, whether this has occurred is a matter for the courts, even where Parliament has approved the measure by affirmative resolution, because while the establishment of delegated powers depends on primary legislation, their due exercise is a question of law. As Laws J pointed out in R v Secretary of State for Social Security, ex parte Sutherland [1996] EWHC 208 (Admin), §19, “where the executive has been allowed by the legislature to make law, it must abide strictly by the terms of its delegated authority”.[15]The rules made from time to time by the Home Secretary as to the practice to be followed in administering immigration control do not fit any of these models. In origin, and although described in the 1971 Act as “rules…as to … practice”, they represent policy – that is to say, the principles upon which departmental officials, acting in the minister’s name, will deal with matters which they have to decide and which are not determined or constrained by law. Policy has not formed part of the classical analysis of state powers (neither Anson’s Law and Custom of the Constitution norDicey’s Law of the Constitution contains an index entry for it), but it has come in recent years to be recognised as a significant part of the constitutional framework: see British Oxygen v Board of Trade [1971] AC 610, per Lord Reid. It offers, as I suggested in R v Secretary of State for Education, ex p Begbie [1999] 1 WLR 1115, 1132, virtues of flexibility which rules lack and virtues of consistency which discretion lacks. Indeed, without policies to guide the exercise of particular powers and discretions, modern departments of state would be repeatedly challenged at law for inconsistency or arbitrariness.[16]But the immigration rules are today different from and more than policy. On appeal to the tribunal they acquire the force of law: the first ground of appeal under s.84(1) of the 2002 Act is that the Home Office decision “is not in accordance with immigration rules”. The ineluctable effect is that departmental decision-makers too are required to abandon any idea of listening, as Lord Reid said they must, to any commonsense or special reason for applying policy flexibly and to stick in every case to the letter of the rules. And that is what one sees in practice. Indeed the parliamentary drafter has been drawn into the stealthy elevation of the rules to a status of quasi-law: s.86(3)(a) of the 2002 Act speaks of “the law (including immigration rules)”.[17]There is no point in lamenting that things are not as they used to be or that constitutional lawyers no longer know where they are. In the United Kingdom, as the late Professor J.A.G.Griffith memorably said, the constitution is what happens. But to acknowledge, as the courts have done more than once, that the immigration rules are sui generis tells one nothing about what the genus is. In my judgment the time has come to recognise that, by a combination of legislative recognition and executive practice, the rules made by Home Secretaries for regulating immigration have ceased to be policy and have acquired a status akin to that of law. Because they derive from no empowering primary legislation, they cannot be subordinate legislation or therefore open to conventional ultra vires challenges. But as an exercise of public power, which they undoubtedly are, they can be no more immune to challenge for abuse of power or for violation of human rights than any other exercise of the prerogative power, including prerogative Orders in Council: see R v CICB, ex p Lain [1967] 2QB 864; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61; [2007] EWCA Civ 498.[18]I do not consider, in this situation, that the statutory requirement that immigration rules be subjected to parliamentary scrutiny is accidental or gratuitous. Almost exactly 400 years ago the Case of Proclamations (1611) 12 Co. Rep. 74 established that the monarch had no power to legislate domestically in his own right:
“The King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm.,”
Coke noted, citing Fortescue. His report continues:
“In the same term it was resolved by the two Chief Justices, Chief Baron and Baron Altham, upon conference betwixt the Lords of the Privy Council and them, that the King by his proclamation cannot create any offence which was not an offence before, for then he may alter the law of the land by his proclamation in a high point … [T]he law of England is divided into three parts, common law, statute law and custom, but the King’s proclamation is none of them… Also it was resolved, that the King hath no prerogative, but that which the law of the land allows him.”
[19]The exercise of the Monarch’s prerogative has passed since 1689 – or perhaps more precisely, as Anson suggests, since 1714 – to ministers of the Crown. It is they who are now constitutionally forbidden to make law except with the express authority of Parliament: hence their need for statutory power to make delegated legislation. As Lord Parker of Waddington said in The Zamora [1916] AC 77, 90:
“The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by the Courts of law in this country is out of harmony with the principles of our Constitution.”
[20]If therefore the 1971 Immigration Bill was going to follow the 1969 Act in making the Home Secretary’s rules of practice a code to be followed and a source of legal rights, some form of parliamentary authority for the rules was constitutionally necessary. Surprisingly, the drafter’s notes on clauses in the National Archives, are silent on the reason for clause 3(2): they say simply “The Secretary of State is to lay before Parliament ‘immigration rules’ governing the administration of the control”. The Parliamentary debates on the Bill, while much fuller, are directed to the form of parliamentary scrutiny and shed no more light on why scrutiny was needed.[21]But in my judgment there was a potent constitutional reason, whether it was overtly acknowledged or not, for Parliament’s insisting in 1969 and again in 1971 that the Home Secretary’s rules of practice must be open to a negative resolution: the rules were being elevated to a status akin to that of law and made the source of justiciable rights - something which, in the domestic sphere (as distinct from the administration of its overseas possessions), the Crown as executive has no power to do. It can make law only with the authority of Parliament. It follows that only that which enjoys or secures Parliament’s authority, in the present instance by the absence of a negative resolution within 40 days after laying, is entitled to the quasi-legal status of immigration rules.[22]The three-month test did not form part of the rules so laid. The first question is whether, this being so, it was of any legal effect.

The questions

[23]Counsel, to whom we are indebted for having together presented an economical and orderly set of documents and arguments, have agreed that the questions for the court are these:(a) has not itself been laid before Parliament(b) is not itself a rule of law but a departmental policy(c) is able to be altered after the rule has been laid before Parliament? (a) are the facts to be tested as at the date of the decision or of the appeal? (b) at whatever point the facts are to be tested, is the policy to be applied as a policy or as a rule? (c) in applying it, does ECHR art.8 have any application?(d) If not, does art.8 have any independent application?

Discussion

[24]There is no absolute rule against the incorporation by reference of material into a measure which has legal effect, even when the measure is required to be laid before Parliament. In R v Secretary of State for Social Services, ex p Camden LBC [1987] 1 WLR 819 this court (Slade, Parker and Mustill LJJ) held that there was no legal flaw in a statutory instrument which fixed the amount of benefits by reference to a directory separately published by the Secretary of State. The directory had not been laid before Parliament with the draft instrument but was already in existence and able to be referred to. Slade LJ, giving the leading judgment, adopted what had been said at first instance by Macpherson J. Referring to the acceptance of the practice by successive Joint Committees on statutory instruments,

the judge had said:

“Provided the reference is to an existing document and there is no question of ‘sub-delegation’ … there is no objection to the practice in the Committees’ eyes…. As Mr Beloff points out, the control of such a tendency is in the hands of Parliament and not the courts. The courts must look to see whether in the instant case the reference offends against the provisions of the enabling statute, and in particular whether the outside document is in truth simply a part of the regulations …”
[25]It is as well to deal at once with the reliance of Lisa Giovannetti, counsel for the Home Secretary, on a section of the judgment of Slade LJ (at 827 F-G) endorsing part of this passage. Slade LJ pointed out that if Parliament did not approve of this way of doing things, or of what the directory contained, “the remedy lay in its own hands”. If this meant that the sole remedy was parliamentary disapproval, I would respectfully disagree; but it is clear in the context of their respective judgments that both Macpherson J and Slade LJ were saying no more than that Parliament could if it wished refuse to accept legislation by reference. The question of what the eventual regulations as a matter of law contained was agreed on all hands to be one for the court.[26]For the rest, Ms Giovannetti does not suggest that the Camden case applies by extension to the present appeals. For my part I accept that it establishes (at least in this court) that a measure which has to be laid before Parliament is not vitiated if, rather than being self-contained, it derives part of its content from an extant and accessible outside source. I accept too that this has a direct bearing on the statement of immigration rules which, under s.3(2) of the 1971 Act, likewise has to be laid before Parliament. It means that the answer to question (1)(a), taken alone, is that the bare fact that a measure laid before Parliament is not self-contained does not render it ineffective.[27]Indeed Michael Fordham QC, for Ms Pankina, has drawn attention to places where plainly legitimate reference is made in the rules to outside sources: for example, by rule 6 a private education institution must offer courses recognised by an appropriate accreditation body. One can add Appendix C itself, which perfectly reasonably relies on bank statements and the like. So the objection is not to rules which rely on outside sources for evidence of compliance. It is to rules which purport to supplement themselves by further rules derived from an extraneous source, whether that source is the rule-maker him- or herself or a third party. While it may be that a policy can unobjectionably do this, the applicants’ case is that, save in what one can call the Camden situation, immigration rules cannot.[28]The reason lies in questions (1)(b) and (c). A policy is precisely not a rule: it is required by law to be applied without rigidity, and to be used and adapted in the interests of fairness and good sense. To take the present case, the policy guidance standing alone would not only permit but require a decision-maker to consider whether, say, a week’s dip below the £800 balance during the three-month period mattered. This would in turn require attention to be given to the object of the policy, which is to gauge, by what is accepted on all sides to be a very imprecise rule of thumb, whether the applicant will be able to support him- or herself without recourse to public funds. If that object was sensibly met, the law might well require the policy to be applied with sufficient flexibility to admit the applicant, or would at least require consideration to be given to doing so. But if the requirement is a rule – and it is the Home Secretary’s case that by incorporation it becomes a rule – then there is no discretion and no judgment to be exercised.[29]This in itself would in my opinion require the three-month criterion to form part of the rules laid before Parliament if it was to be effective. But the objection goes deeper. Albeit the first version of the policy guidance was brought into being within the 40 days allowed by s.3(2) for the Parliamentary procedure, it has been open to change at any time. It is this, rather than the fact that it has in the event been changed, which, in answer to question (1)(c), is in my view critical. It means that a discrete element of the rules is placed beyond Parliament’s scrutiny and left to the unfettered judgment of the rule-maker.[30]It may be objected that this is pettifogging: all that the three-month provision in the policy guidance is doing is firming up a requirement in the rules. But Ms Giovannetti, with her customary candour, has taken no such point. Instead she has recognised that, if her argument is sound, it means that the Home Secretary may lawfully lay before Parliament a rule which says simply that graduates may be given leave to remain in accordance with such policy as the Home Secretary may from time to time adopt, and that so long as Parliament passes no negative resolution the relevant policies will become rules and, on appeal, law. Indeed it can only be in order to insist on such a principle that the Home Secretary did not long ago take the simple step of amending Appendix C to include the three-month test.[31]In support of her stance Ms Giovannetti relies on the very fact that the rules are not a statutory instrument. Whereas (see Erskine May p. 671 ff) the validity of a statutory instrument which is not duly laid will depend on the terms of the empowering statute, nothing in the Immigration Act 1971 either empowers or controls the making of rules. They are a matter entirely for the Home Secretary. Once made they constitute the practice to be followed in the Home Office. Section 3(2), Ms Giovannetti submits, simply requires them to be brought to Parliament’s attention and to be changed and re-laid if within 40 days the House by resolution disapproves them.[32]For my part I would accept that neither failure to lay rules within the allotted time nor disapproval by negative resolution invalidates them: see R v Home Secretary, ex parte Hosenball [1977] 1 WLR 766, 785, per Geoffrey Lane LJ. It may be that the Home Secretary is compellable by mandatory order to do what the Act requires, or even preventable by prohibitory order from acting on rules which have not been submitted to scrutiny. But meanwhile the rules remain what they are: a statement of how the Home Secretary is for the time being regulating immigration under the Act.[33]But the operation of the rules qua rules is one thing; what they contain as a matter of law is another. In my judgment the statutory recognition of rules which are to have the character and, on appeal, the force of law requires such rules to be certain. That does not shut out extraneous forms of evidence of compliance, so long as these are themselves specified, but it does in my judgment shut out criteria affecting individuals’ status and entitlements which – coming back now to the questions in paragraph 23 above - (a) have not themselves been tendered for parliamentary scrutiny, and (c) even if ascertainable at that point of time, may be changed without fresh scrutiny. As to (b), while the fact that the criterion absorbed into the rules comes from a policy document makes nonsense of the notion of policy, this is not critical: the vice would be the same if the reference in the rules were to a categorical criterion in some external but impermanent or undetermined source.[34]I recognise that it is possible to construct a scenario in which gaps appear in the scheme described in the last paragraph and in paragraph 20 above. For example, if immigration rules continue to be the Home Secretary’s rules of practice regardless of what happens in Parliament, then why should even a deliberate failure to lay them in proper form before Parliament (or to withdraw and amend them if a negative resolution is passed) impact on their validity? And why then should the rules not continue to operate notwithstanding their adoption of criteria from changeable external sources? Moreover, there are rules which appear to reserve discretions to the Home Secretary: for highly skilled migrants, for example, rule 135H stipulates that leave to remain “is to be refused” if the criteria are not met, but where the criteria are met, rule 135GA only says that leave “may be granted”. It may be asked whether the latter, if it stands alone, has the character of a true rule and, if it does, whether orthodox rules of statutory construction should be applied to it.[35]Such potential anomalies are going to be an inevitable by-product of this kind of hybrid provision which conforms to no previously understood model. But the law, faced with it, cannot simply abandon a constitutional principle which for four centuries has stood as a pillar of the separation of powers in what is today a democracy under the rule of law. The answer has to be that ministers are to be expected to do what is required of them: Parliament will expect the Home Secretary to lay before it any rules by which he or she proposes to manage immigration; the courts will expect such rules, like any other source of law, to be those and only those which have Parliament’s approval; and appellate tribunals will expect to find in the rules the certainty which rules must have if they are to function as law. If for some reason this model breaks down, the courts or the legislature will have to decide how to fix it.[36]The Home Secretary’s appeal in Ms Pankina’s case is from a decision of the AIT (SIJ Freeman, who wrote the determination, and SIJ Spencer). Given their limited powers, the Tribunal were unable to decide the major issues which have been canvassed above, but they did deal with clarity and, in my view, correctly with the timescale of promulgation. The question which they posed was “exactly what Parliament did approve when HC607 was laid before it, amending appendix C (first added by HC 321) to the principal Immigration Rules (HC395)”. Their answer was that, in contrast to the Camden case, there was at that date no pre-existing policy guidance to the effect that the £800 balance must have been continuously in the applicant’s account for three months ending with the date of application. Ms Pankina had had that sum in her account both at the date of her application and at the date of her appeal hearing, and that was sufficient to meet the rule. Ms Giovannetti now relies on the fact that the guidance had been issued before the end of the 40-day period which was allowed for negative resolutions. If the appeal turned on this I would agree with the AIT. The s.3(2) procedure is not there, in my judgment, to give the Home Secretary 40 days within which to lay an acceptable set of rules before the House: it is there to give the House 40 days in which to express disapproval, if so minded, of what the Home Secretary has laid before it. But, as the AIT anticipated, this court has been in a position to consider the issues in much larger perspective than was available to the Tribunal.

Conclusion on the constitutional issue

[37]The three-month criterion formed no part of the rules applicable to these cases. The only relevant criterion was the requirement in Appendix C that they should have £800 at the time of application. Because one appellant, Ms Malekia, at no stage had the requisite £800, and also in case I should be mistaken on the constitutional issue, I turn to the remaining issues.

The date at which the facts are to be tested

[38]If, contrary to my clear view, the material policy guidance forms part of the Appendix C criteria, question 2(a) asks at what date compliance is to be judged. In the present cases, this means the date of application or the date of appeal. The £800 in the bank accounts of some of the applicants had not been there continuously for the three months preceding their applications but had been there for three continuous months by the time their appeals came up.[39]Although argument has been directed to large issues of principle arising out of the phraseology of the legislation, the answer has in my judgment to be found in the provisions themselves. The rule as framed makes it clear that it is to the Home Office that the necessary proof must be submitted. The argument that a fresh opportunity arises on appeal is based on s.85(4) of the 2002 Act, which provides that on such an appeal the tribunal “may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision”. There are many instances of rule-based issues which need to be appraised as they stand at the moment of the appeal hearing, but the question whether at the date of the application the specified funds had been in the applicant’s bank account for three continuous months cannot intelligibly be answered by evidence that they had not, albeit they now have been.

Policy or rule?

[40]Again on the assumption that incorporation of criteria derived from policy is permissible, it seems to me that Ms Giovannetti must be right in her submission, in answer to question 2(b), that a policy criterion incorporated into the rules acquires, by a kind of osmosis, the character of a rule. I would add that this is in my opinion yet another reason why such incorporation ought not to be permissible.

ECHR article 8

[41]More difficult are the final questions, 2(c) and (d) - whether and how art.8 may have a bearing on Tier 1 claims. The initial submission of all the applicants’ counsel was that, if all else failed, the Home Secretary and, if need be, the tribunal must give independent consideration to whether removal was proportionate in the light of whatever family and private life the applicant had meanwhile established here.[42]The applicant Irfan Ali succeeded before an immigration judge (IJ Morgan) on this ground, but the decision was overset on reconsideration. Ms Giovannetti submits that the entire exercise was off limits: the rules are the sole test of eligibility, she submits, and art. 8 cannot be used to modify them. As the Home Office put it in seeking and obtaining an order for reconsideration, “the rules are black letter law”. The contention might be stronger if the Home Secretary had not purported to reserve to herself a margin of discretion in relation to those applicants who comply with the rules: is art.8 to be ignored there as well? But her real difficulty lies in s.6 of the Human Rights Act 1998, which by subsection (1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.[43]For the most part this obligation has been respected by the inclusion in the immigration rules themselves of requirements either corresponding to or reproducing those Convention rights which the rules bring into play. But insofar as this has not been done – and it has not been done in relation to Tier 1 migrants – are the rules ringfenced by s.6(2)? This provides: Subsection (1) does not apply to an act if–(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. order, rules, regulations, scheme, warrant, byelaw or other instrument made under primary legislation (except to the extent to which it operates to bring one or more provisions of that legislation into force or amends any primary legislation);[44]The immigration rules, notwithstanding the status they have by now acquired, are none of these. They are rules, but – as discussed earlier in this judgment - by deliberate choice they are not made under primary legislation. This, no doubt, is why Ms Giovannetti has not sought to block the argument at the threshold by reliance on s.6(2); but it also means that there is no obstacle in principle to the contention that in applying the rules the Home Secretary must respect Convention rights whether or not the rules explicitly introduce them.[45]There appears to me, in this situation, to be no escape from the proposition that in exercising her powers, whether within or outside the rules of practice for the time being in force, the Home Secretary must have regard and give effect to applicants’ Convention rights. This will mean in most cases evaluating the extent and quality of their family and private life in the United Kingdom and the implications, both for them and for the United Kingdom, of truncating their careers here.[46]That in turn will require consideration of the significance of the criteria by which their eligibility has been gauged and found wanting. It is one thing to expect an applicant to have the necessary academic and linguistic qualifications: here a miss is likely to be as good as a mile. It is another for an applicant to fall marginally or momentarily short of a financial criterion which in itself has no meaning: its significance is as a rough and ready measure of the applicant’s ability to continue to live without reliance on public funds. Having £800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1 entry. If the Home Secretary wishes the rules to be blackletter law, she needs to achieve this by an established legislative route.[47]So long as the rules are what the Immigration Act 1971 says they are, they must in my judgment be operated in conformity with s.6 of the Human Rights Act. This means that I would answer question 2(c) affirmatively, and that question 2(d) becomes academic.

The six appeals

[48]How then does the law set out above impact on the cases of the six applicants before the court?[49]In Ms Pankina’s case the AIT was right, for the reasons set out above, to allow her appeal. Her documents, which showed that she had £800 in the bank at the time of her application, proved as much as was lawfully required of her. The Home Secretary’s appeal against the AIT’s decision fails.[50]Of the remaining appellants, all but Ms Malekia had provided suitable evidence that they had £800 in the bank at the time of application. Each had therefore done as much as was lawfully required to secure his 10 points and is entitled to succeed on his appeal. There is no need to consider their potential article 8 claims.[51]Ms Malekia had at no relevant time as much as £800 in her bank account. She lost on this ground, and the elimination of the three-month requirement cannot help her. But there remains her article 8 claim. This was expressly excluded, however, from the order for reconsideration made by the High Court, with the result that it played no part in the reconsideration determination made by SIJ Storey and SIJ Perkins and forms no part of the appeal before this court.[52]It was, however, adjudicated on initially by IJ Ross, who concluded his determination with a consideration of this issue. He was plainly not unsympathetic to Ms Maleckia, who had qualified here as a nurse, but he noted her evidence that she lived here alone and no relative here closer than a cousin. Her mother lives in Tanzania. He made what was even so the surprising finding that this appellant had no private life here (he said nothing about family life). But he then went on to consider whether, if this was wrong, the impact of removal would be sufficient to engage article 8, and concluded that it would not.[53]I am bound to say that one would have expected a finding, on these facts, that while the family life limb of art 8 was not engaged, the private life limb was, but not to an extent sufficient to outweigh the requirements of immigration control. If I thought that an art 8 claim could succeed in Ms Maleckia’s case I would want to know whether the Home Secretary was prepared to reconsider the claim; but I see no prospect of its success and would therefore dismiss Ms Maleckia’s appeal.[54]I agree.[55]I also agree.

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