Ooi & Ors, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 3221 (Admin)

[2007] EWHC 3221 (Admin)CO/4747/2006 and CO/8328/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 18th December 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OFClaimantCHONG MEUI OOIClaimantPOH ANN LIMClaimantSIEW LEONG CHONGClaimantWAI CHANClaimantGANG ZHOUClaimantCHI HOON KIMClaimantv
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr R de Mello and Mr Danny Bazini (instructed by Messrs Harvey Son & Filby, London N3 1LQ) appeared for ClaimantsMr Jonathan Moffett (instructed by Treasury Solicitor, London) appeared for Defendant
JUDGMENT
[1]MR JUSTICE MITTING: By this claim five claimants challenge by judicial review (for which I gave permission yesterday) the lawfulness of two sets of changes to the Immigration Rules which came into effect on 3rd April 2006 and 2nd April 2007 respectively, and of decisions made by the Secretary of State in relation to the claimants under and in connection with them.[2]The claimants are men of Chinese extraction. Three are from Malaysia, one from Hong Kong and one from the People's Republic of China. All are chefs. All obtained work permits in 2002: four for 60 months from the date of entry to the United Kingdom; and one, the third claimant, Siew Leong Chong, for 54 months.[3]The first three claimants, Chong Meui Ooi, Poh Ann Lim, Siew Leong Chong, are married. The last two, Wai Chan and Gang Zhou, are not. They arrived in the United Kingdom on the following dates: the first claimant on 15th June 2002; the second claimant on 21st July 2002; the third claimant on 17th June 2002; the fourth claimant on 13th May 2002; and the fifth claimant on 23rd July 2002. Each was granted leave to enter until the expiry of his work permit, in the case of the fifth claimant a few days later.[4]Each has worked continuously in the United Kingdom since entry as a chef for a UK-based employer. All but the third claimant have obtained indefinite leave to remain. The third claimant has not. For reasons particular to his case, which have no bearing on the issues which I have to decide, his leave to enter expired on 16th December 2006. On 14th December 2006 his employer asked for his work permit to be extended for 18 months. His place of work was visited by a Home Office official, who discovered that his employer had no need for an employee to work in the capacity for which the third claimant was permitted to work, second chef, because there was no head chef. Accordingly on 20th December 2006, the application for an extension was rejected. On 12th January 2007 the employer requested a review of that decision. On 16th May 2007 the decision to refuse the extension was upheld. A further request for reconsideration remains undetermined. The third claimant's position therefore remains precarious.[5]All five claimants applied for indefinite leave to remain, to be granted with effect from the fourth anniversary of their arrival in the United Kingdom, at various dates in 2006. Each application was made shortly before or shortly after that date. Each was refused within six weeks of the application.[6]Four of the claimants (all but the third claimant) made new applications in 2007. They were required to and did, in the case of the first and fifth claimants at the first attempt, and in the case of the second and fourth claimants at the third and fourth attempts respectively, demonstrate sufficient knowledge of English and of life in the UK, "the knowledge requirement".[7]The third claimant has not made a new application and so has not yet been required to demonstrate that knowledge.[8]All five claimants challenge the lawfulness of the refusal of indefinite leave to remain in 2006, and in particular of the change in the Immigration Rules which led to it, and four of the claimants challenge the lawfulness of the knowledge requirement generally and in its application to their cases. Changes to the Immigration Rules[9]The right of abode in the United Kingdom is governed by section 1 of the Immigration Act 1971, the relevant provisions of which state:
"1(1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person. (2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; ... (4) 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."
[10]Provision for entry of those without the right of abode is contained in section 3, the relevant provisions of which provide:
"3(1) Except as otherwise provided by or under this Act, where a person is not a British citizen - (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of or made under this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given limited leave to enter or remain in the United Kingdom, it may be given subject to all or any of the following conditions, namely— (i) a condition restricting his employment or occupation in the United Kingdom (ii) a condition requiring him to maintain and accommodate himself, and any dependants of his, without recourse to public funds and (iii) a condition requiring him to register with the police. (2) 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)."
[11]Provision is then made for the rules to be approved by the negative resolution procedure.[12]Subsection (3) provides:
"(3) In the case of a limited leave to enter or remain in the United Kingdom - (a) a person's leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply; ..."
[13]The undefined phrase "by permission" in section 1(2) hints at the ultimate source of the power to control the entry of those without the right of abode: the prerogative power of the Crown, which is expressly preserved by section 33(5). But it is common ground, correctly in my view, that the Immigration Rules are made "under" section 3(2) and that the source of the power to make the rules is to be found in that section. Any rule not authorised by it would be ultravires.[14]Their legal status was explained by Sedley LJ in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139, in paragraph 29:
"29. In constitutional terms, it seems to me, the Immigration Rules are the product of a mandate set out in s.3(2) of the Immigration Act 1971 to secure Parliamentary approval of the principles according to which the Home Secretary intends for the time being to exercise the statutory and prerogative powers which govern admission to the United Kingdom. There is nothing in the Act which gives them the force of law, save in relation to appeals against their exercise. For the rest, their only statutory dimension is that they are made open to debate and negative resolution in Parliament."
[15]A person without a right of abode under section 1(1) may be granted indefinite leave to remain under the Immigration Rules, or citizenship by naturalisation under section 6 of the British Nationality Act 1981. Conditions must be fulfilled in each case. The main differences between citizenship and indefinite leave to remain are that a citizen may vote in Parliamentary elections, whereas a person with indefinite leave to remain cannot; that a citizen may not be deported but a person with indefinite leave to remain may be if the Secretary of State deems his deportation to be conducive to the public good under section 3(5), or following a recommendation of a criminal court on conviction for an offence under section 6; and that a person with indefinite leave to remain loses his right of abode if he is absent from the United Kingdom for a continuous period of two years, whereas a citizen does not. Subject to those significant differences, both confer the right of permanent settlement in the United Kingdom.[16]The grant of indefinite leave to remain for a work permit holder is governed by paragraph 134 of the Immigration Rules. Before 3rd April 2006, it provided:
"134. Indefinite leave to remain may be granted, on application, to a person admitted as a work permit holder provided: (i) he has spent a continuous period of 4 years in the United Kingdom in this capacity; and (ii) he has met the requirements of paragraph 131 ... throughout the 4 year period; and (iii) he is still required for the employment in question, as certified by his employer."
[17]Paragraph 131 provided:
"131.

(v) "

[18]The relevant parts of paragraph 128 provide:
"128. The requirements to be met by a person coming to the United Kingdom to seek or take employment (unless he is otherwise eligible for admission for employment under these Rules or is eligible for admission as a seaman under contract to join a ship due to leave British waters) are that he ... (ii) is not of an age which puts him outside the limits for employment; and (iii) is capable of undertaking the employment specified in the work permit; and (iv) does not intend to take employment except as specified in his work permit; and (v) is able to maintain and accommodate himself and any dependants adequately without recourse to public funds."
[19]Thus anyone who had been permitted to enter the United Kingdom following the grant of a work permit and who fulfilled those conditions could apply for indefinite to leave to remain after four years continuous residence in the United Kingdom as a work permit holder. This was stated in the conditions on the back of the work permit itself, condition 11 of which was:
"11. An overseas national who has spent a continuous period of 4 years in approved employment and is still required for the employment in question may apply for the removal of the conditions attached to their stay. ..."
[20]Such a person could reasonably expect his application to succeed. The Secretary of State was required by paragraph 135 of the Immigration Rules to refuse to grant indefinite leave to remain if not satisfied that the applicant fulfilled the requirements of paragraph 134, but not otherwise.[21]On 7th February 2005 an announcement was made to Parliament of the Government's intention to increase the qualifying period for indefinite leave to remain from four years to five years. One of the reasons given by the Home Office in a document published contemporaneously entitled "Controlling our borders: Making migration work for Britain — Five Year Strategy for asylum and immigration", in paragraph 39, was to align UK practice with the European norm. There was and is no legal requirement on the United Kingdom to do so because it has opted out of EU-wide measures to control immigration.[22]On 13th March 2006 the Secretary of State laid before Parliament a statement of proposed changes to the Immigration Rules to take effect on 3rd April 2006. In slightly amended form, a fresh statement of changes was laid before Parliament on 30th March 2006. They were not disapproved by Parliament and so came into effect on 3rd April 2006. The new rules provided:
"134. Indefinite leave to remain may be granted, on application, to a person admitted as a work permit holder provided: (i) he has spent a continuous period of 5 years in the United Kingdom in this capacity; and (ii) he has met the requirements of paragraph 128 (i) to (v) throughout the 5 year period; and (iii) he is still required for the employment in question, as certified by his employer."
[23]Paragraph 128 provides:
"128. The requirements to be met by a person coming to the United Kingdom to seek or take employment (unless he is otherwise eligible for admission for employment under these Rules ...) are that he: (i) holds a valid Home Office work permit; and (ii) is not of an age which puts him outside the limits for employment; and (iii) is capable of undertaking the employment specified in the work permit; and (iv) does not intend to take up employment except as specified in his work permit; and (v) is able to maintain and accommodate himself and any dependants adequately without recourse to public funds; ..."
[24]There were no transitional provisions, but the Home Office processed applications for indefinite leave to remain from persons who had resided continuously in the United Kingdom as work permit holders and fulfilled the requirements of old paragraph 134 as at 2nd April 2006, and who submitted an application before 3rd April 2006, under the old rules.[25]The absence of transitional provisions was deliberate. It was thought that the disadvantage to work permit holders would be limited, and that implementation of a desirable measure should not be postponed for the period necessary to avoid all disadvantage to work permit holders already resident in the United Kingdom; in other words, until 3rd April 2011.[26]As at 2nd April 2006 none of the claimants had resided in the United Kingdom as work permit holders for four years. Each fell short by a few months. Accordingly, when they submitted applications for indefinite leave to remain, the Secretary of State was bound (by paragraph 135) to reject them under the amended Rules unless, by the exercise of prerogative power, he could have done so.[27]According to Christopher Hedges, a policy manager in the Borders and Immigration Agency, who has signed the principal witness statement on which the Secretary of State relies, the Secretary of State intended to introduce the knowledge requirement at the same time but was prevented from doing so by practical difficulties: the time required to put in place the necessary tests.[28]The introduction of the knowledge requirement was accordingly postponed until 2007. Its genesis was the Cantle report of December 2001, produced following rioting with a racial element in northern England in the summer of 2001. The authors emphasised the need for universal acceptance of the English language as a means of fostering community cohesion. A sufficient knowledge of English has been a requirement for naturalisation since the British Nationality Act 1948, section 10(1) and Schedule 2, paragraph 1(1)(c); now the British Nationality Act 1981, section 6, Schedule 1(1)(c).[29]Research has demonstrated that a knowledge of English has a strong positive effect on the prospects of obtaining well-paid employment. The conclusion of the Commission on Cohesion and Integration in its interim report of February 2007 was that:
"... not speaking English is a barrier to integration and cohesion."
[30]Knowledge not only of language but also of history and institutions is thought to be essential to successful integration as well: see the European Council press release of 19th November 2004.[31]Accordingly, it was decided to introduce not only a requirement for knowledge of the English language, but also of life in the United Kingdom. An intention to introduce such a requirement was stated in February 2005 in paragraph 39 of the "Controlling our borders" document.[32]With effect from 1st November 2005, such a requirement was introduced for naturalisation by the insertion into the British Nationality Act 1981 of Schedule 1, paragraph 1(1)(c) (a).[33]A Home Office paper of July 2006, "Fair, effective, transparent and trusted – Rebuilding confidence in our immigration system" announced that the language requirement would be introduced by April 2007.[34]A statement of changes to the Immigration Rules was laid before Parliament on 19th March 2007. They were not disapproved and came into effect on 2nd April 2007.[35]Paragraph 134 now contains an additional subparagraph:
"(iv) he has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application."
[36]New rule 33B explains what that means:
"33B. A person has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom for the purpose of an application for indefinite leave to remain under these rules if - (a) he has attended a course which used teaching materials derived from the document entitled 'Citizenship Materials for ESOL Learners' ... and he has thereby attained a relevant accredited qualification; or (b) he has passed the test known as the 'Life in the UK Test' administered by an educational institution or other person approved for this purpose by the Secretary of State; ..."
Paragraphs 33B(c) to 33F make detailed further provision, including exemptions from those requirements.[37]Thus an applicant for indefinite leave to remain can demonstrate sufficient knowledge of English and of life in the United Kingdom by passing a test or by attending a course and obtaining a "qualification" at entry level as a result.[38]As at May 2007, since 1st November 2005 over 275,000 tests have been taken, with a 68.4 per cent pass rate. This includes tests taken by the same person more than once. It is a per test figure, not a per person figure.[39]Sitting the tests and attending the courses comes at a price: £9.99 for the official handbook required for preparation for the Life in the UK test, £34 for the test, and tuition fees, estimated by Mr Hedges to be between £380 and £762 and by Mr Kong, the solicitor for the claimants, to range from £3,500 to £4,900. The success rate per test of Chinese applicants ranged from 43.6 to 64.6 per cent, whereas for applicants from Anglophone countries it exceeded 90 per cent.[40]Despite the pessimism expressed by the second claimant in the only witness statement made by any claimant, he and the three others who have sat the test have all passed it. Submissions[41]In detailed and wide-ranging submissions, supported by extensive evidence, Mr de Mello, for the claimants, challenges the lawfulness of the rule changes and of decisions made under or in connection with them as they affect the claimants. His challenges can be distilled into six propositions:(1) Both rule changes were ultra vires section 3(2) of the Immigration Act 1971 because they were retrospective in effect.(2) The 2007 rule changes were ultra vires because they were intended to achieve social cohesion, which is not a purpose within the scope of section 3(2).(3) Both rule changes defeated legitimate expectations of a substantive kind of the claimants.(4) The 2007 rule changes are an unlawful act of racial discrimination under section 1(1) or section 1(1A) of the Race Relations Act 1976.(5) The 2007 rule changes infringe each claimant's rights under Articles 14, 8 and Article 1 of the First Protocol of the European Convention on Human Rights.(6) The Secretary of State should have used her prerogative power to exempt the claimants from the requirements of the amended rules. Retrospectivity[42]The law was authoritatively stated by Lord Brightman, giving the opinion of the Privy Council in Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553, at 558F-G:
"Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past."
[43]Mr de Mello points out, uncontroversially, that section 3(2) contains no power to change the law retrospectively in the sense explained by Lord Brightman. He submits that the rule changes impaired an existing right or created a new obligation in regard to events already past.[44]The short and sufficient answer is that they did not do so. As at 2nd April 2006, no claimant had a right to be granted indefinite leave to remain, even if such a right could be said to have existed in relation to someone who had four years' continuous residence as a work permit holder and met the other conditions as at that date. No one had yet achieved four years' residence. The only right which they did have to apply for indefinite leave to remain was not taken away, although it was deprived of purpose by the rule changes.[45]As at 1st April 2007, no claimant had the right to be granted indefinite leave to remain without satisfying the knowledge requirement because none had by then achieved the five years' residence required by the 2006 rule change. Nor did either change create a new obligation in regard to events already past for the same reason. If the claimants had achieved the necessary period of residence on either occasion, a new obligation in regard to events already past would have been created but not otherwise. The new obligation applied to events -- a further period of residence -- which lay in the future as at the date on which it was imposed. Purpose[46]Mr de Mello submits that social harmonisation is a proper purpose of naturalisation laws but not of rules which govern settlement. I do not see why. Section 3(2) requires the Secretary of State to lay before Parliament rules and changes to rules laid down by him as to the practice to be followed for regulating, "the entry into and stay [my emphasis] in the United Kingdom" of persons without a right of abode, and provides that different conditions may be attached in different circumstances.[47]Section 3(3)(a) permits the removal of a limit on the duration of leave granted under the rules laid before Parliament under section 3(2). The power to lay down rules includes the power to lay down rules for the grant of indefinite leave to remain. Nothing in the language of section 3(2), or in the Act read as a whole, suggests that Parliament intended that the rules should be subject to the limitation proposed by Mr de Mello.[48]The ease with which a person granted indefinite leave to remain can accommodate him or herself to life in the United Kingdom when permanently settled here is plainly a matter which the Secretary of State was entitled to take into account when introducing the knowledge requirement in the 2007 changes to the rules. Legitimate expectation[49]There is no doubt that an explicit statement made to a limited number of people by a public authority exercising a statutory function as to how it will discharge that function in relation to them can give rise to a legitimate expectation that it will do so, which can be enforced by the court: R v North and East Devon Health Authority, Ex parte Coughlan [2001] QB 213. But that proposition contains two qualifying elements: one self-evident and one necessary to respect constitutional proprieties.[50]The first is that the expectation must be securely grounded in an explicit or at least unequivocal statement. The second is stated in the judgment of Laws LJ in R v Secretary of State for Educational and Employment, Ex parte Begbie [2000] 1 WLR 1115, at 1130F-1131D:
"As it seems to me the first and third categories explained in the Coughlan case [2000] 2 WLR 622 are not hermetically sealed. The facts of the case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review. In some cases a change of tack by a public authority, though unfair from the applicant's stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear. The local government finance cases, such as Reg v Secretary of State for the Environment, Ex parte Hammersmith and Fulham London Borough Council [1991] 1 AC 521, exemplify this. As Wade and Forsyth observe (Administrative Law, 7th ed. (1994), p. 404): 'Ministers' decisions on important matters of policy are not on that account sacrosanct against the unreasonableness doctrine, though the court must take special care, for constitutional reasons, not to pass judgment on action which is essentially political.' In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players. Here, with respect, lies the importance of the fact in the Coughlan case ... that few individuals were affected by the promise in question. The case's facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the court's condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power. There will of course be a multitude of cases falling within these extremes, or sharing the characteristics of one or other. The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court's supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy"
[51]There was no explicit or unequivocal statement to the claimants. Each was told, by condition 11 endorsed on the work permit, that they could apply for indefinite leave to remain after four years' residence, but no statement was made that their application would be granted or that no change might be made to the Immigration Rules before that four years was up.[52]If any of the claimants read condition 11, that is the only conclusion which he could legitimately have drawn. If he had had a more extensive knowledge of UK immigration law, he would have realised that the Immigration Rules could be changed in the prescribed manner.[53]Further, the changes reflected Ministerial decisions, not disapproved by Parliament, on important matters of policy which affected very many people and the social cohesion of the United Kingdom as a whole. As a judge I am not a position to judge, save on bare _Wednesbury_ grounds, the questions of general policy which underlie the changes. Judicial reticence is plainly required.[54]For both of those reasons, I conclude that the claimants did not have a substantive legitimate expectation that the Immigration Rules would not be changed so as to affect them adversely in the ways in which these changes are said to have done. Race discrimination[55]The relevant provisions of the Race Relations Act 1976 are to be found in sections 1, 3, 19B, 19D and 78:
"1(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but - (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and (iii) which is to the detriment of that other because he cannot comply with it. (1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but - (a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons, (b) which puts that other at that disadvantage, and (c) which he cannot show to be a proportionate means of achieving a legitimate aim. (1B) The provisions mentioned in subsection (1A) are - ... (c) section 19B, so far as relating to - ... (iv) any form of social advantage; ... (1C) Where, by virtue of subsection (1A), a person discriminates against another, subsection (1)(b) does not apply to him. ... 3(1) In this Act, unless the context otherwise requires - 'racial grounds' means any of the following grounds, namely colour, race, nationality or ethnic or national origins; 'racial group' means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls. ... (4) A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) or (1A) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. 19B(1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination. 19C ... (2) Section 19B does not apply to any act of, or relating to, making, confirming or approving any enactment or Order in Council or any instrument made by a Minister of the Crown under an enactment. ... (4) Section 19B does not apply to any act of, or relating to, imposing a requirement, or giving an express authorisation, of a kind mentioned in section 19D(3) in relation to the carrying out of immigration functions. (5) In this section - 'immigration functions' has the meaning given in section 19D; ... 19D(1) Section 19B does not make it unlawful for a relevant person to discriminate against another person on grounds of nationality or ethnic or national origins in carrying out immigration functions. ... (5) Those enactments are - (a) the Immigration Acts (within the meaning of section 44 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 ... 78 ... 'social protection' and 'social advantage' have the same meaning as in Article 3 of Council Directive 2000/43/EC; ..."
[56]Unhelpfully, though Article 3(f) of Council Directive 2000/43/EC on equal treatment provides that it applies to "social advantages", it does not define them.[57]Article 3(2) does however provide:
"This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, ..."
[58]Recital 25 of Council Directive 2003/109/EC on the status of third country nationals who are long-term residents states:
"In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, these Member States are not participating in the adoption of this Directive and are not bound by or subject to its application."
[59]Mr de Mello submits that the 2007 changes were directly discriminatory and so prohibited by section 1(1A), because the knowledge requirement is not imposed on EEA nationals and citizens of Turkey.[60]The premise is true but also provides the answer. Article 12 of the Treaty of European Union prohibits the imposition of measures such as the knowledge requirement on EEA nationals and citizens of Turkey. Accordingly, the comparison which must be made between the group of which the claimants are part and that group is not "such that the relevant circumstances in the one case are the same or not materially different in the other" as required by section 3(4) of the 1976 Act, so that the claimants cannot demonstrate that the Secretary of State treats others less favourably than them.[61]Self-evidently, the knowledge requirement is imposed on all other applicants for indefinite leave to remain, apart from those specially exempted in respect of whom no comparison is urged. Accordingly, unless the claimants establish that they should be compared with the group of applicants from the EEA or from Turkey, their claim under section 1(1) cannot succeed.[62]Section 1(1A) does not avail the claimants because by virtue of section 19C(2), section 19B, and so section 1(1A) does not apply to:
"... any instrument made by a Minister of the Crown under an enactment."
It is common ground, correctly, that the Immigration Rules are an instrument "under" section 3(2) of the Immigration Act 1971.[63]I am also unpersuaded that a right of abode conferred by indefinite leave to remain is correctly categorised as "any form of social advantage". It is a legal right not a social advantage. In any event, Immigration Rules are outwith the scope of Directive 2000/43/EC, so that the reference for the purpose of interpretation to that Directive cannot avail the claimants.[64]Section 1(1)(b) does not avail the claimants either, because none of them can show that he cannot comply with the knowledge requirement. All four who have attempted the task have succeeded. It is not enough that they may have experienced difficulty or expense in doing so. That gets them within section 1(1)(b)(i), but it does not get them past section 1(1)(b)(iii).[65]Mr de Mello prays in aid a decision of an Industrial Tribunal Bohon-Mitchell v Common Professional Examination Board [1978] IRLR 525. But an examination of the decision demonstrates that it does not assist him.[66]In that case the applicant complained to an Industrial Tribunal that her ability to practice law in the United Kingdom was, by comparison with other groups, unjustly fettered. She had an American non-law degree. The requirements for candidates without a qualifying law degree imposed different obligations according to the country in which the degree had been awarded. Home non-law graduates were required to take six core subjects on a course lasting 12 months; overseas non-law graduates were required to take a diploma in eight subjects in a course lasting 21 months. The applicant fell into the latter category. The respondents contended that she could have put herself in a position comparable to that of a home non-law graduate by studying for and obtaining a UK degree.[67]The Tribunal held, correctly so far as I can tell, that the words "can comply" in section 1(1)(b) of the Race Relations Act 1976 did not mean "could have complied if she had taken different decisions at an earlier date" or might in the future be able to do so. The Tribunal held that the applicant's position had to be judged by reference to the state of affairs as at the date on which the allegedly discriminatory requirement was applied to her. On that basis she was in a position less favourable than that of home law graduates.[68]These claimants by contrast could (and as it happens did) comply with the knowledge requirement as at the date on which it was applied to them, namely when they applied for indefinite leave to remain, and I would add, in the weeks or months following it, by the expenditure of modest effort and money.[69]There was therefore in the case of none of these complainants any direct or indirect race discrimination. Convention rights[70]Articles 8, 14, and Article 1 of the First Protocol provide:
"Article 8 1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
[71]Article 14:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
[72]Article 1 of the First Protocol:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
[73]Mr de Mello submits that the substantive legitimate expectation, which I have found no claimant to possess, that a decision would be made to grant him indefinite leave to remain amounts to a "possession" within Article 1 of the First Protocol. Plainly it does not, and would not do so even if the substantive legitimate expectation existed.[74]The claimants may, and some clearly do, enjoy family life in the United Kingdom. But the change in the rules does not interfere with it. They are not required to leave the United Kingdom. All they are required to do is to wait one more year and satisfy the knowledge requirement, which four out of five have done.[75]In any event, the measure is clearly prescribed by law and proportionate to the legitimate aims identified in Article 8(2), for the reasons which I have already explained.[76]The observations of the House of Commons Joint Committee on Human Rights, printed on 26th July 2007, are relied on by Mr de Mello. They apply to those covered by the Highly Skilled Migrant Programme and in my view are not in point. The Committee concluded that the rights of such migrants under Article 8 would be adversely affected by the introduction of the knowledge requirement. They reached that conclusion in the particular context that that programme requires them to make their principal home in the United Kingdom. Accordingly, putting that home at risk for a further year arguably engaged and even breached their Convention rights.[77]I make no ruling upon that point because I believe it is the subject of another claim and it falls to be considered on its own merits. All that I need observe for present purposes is that it has no bearing on the position of migrants such as these claimants who are not in the highly-skilled category. Prerogative power[78]The claimants' case is that the prerogative power could have been exercised to exempt them from the new rules.[79]Assuming the Secretary of State could have exercised the prerogative power to that end, there is no possible basis for challenging her failure to do so for both of two reasons: first, she has never been asked to do so; secondly, it would plainly not be Wednesbury unreasonable for her not to do so if she were asked, nor could it sensibly be argued that it would be unlawful for her to decline to do so for any other reason. Conclusion[80]For those reasons, these five claims for judicial review are dismissed.[81]MR MOFFETT: My Lord, I am very grateful for that.[82]My Lord, I do have an application for costs. Before I move on to that, could I just deal with three matters arising out of your Lordship's judgment and, perhaps, by way of corrections, as it were --[83]MR JUSTICE MITTING: Thank you. There always are and always need to be.[84]MR MOFFETT: My Lord, the first one is towards the beginning of your Lordship's judgment you referred to differences between indefinite leave to remain and citizenship.

MR JUSTICE MITTING: Yes.

[86]MR MOFFETT: I believe that your Lordship said that one of the differences was that under indefinite leave to remain an individual is not entitled to freely take up employment without the permission of the Home Office.

MR JUSTICE MITTING: Yes.

[88]MR MOFFETT: My Lord, with respect, that is not the case. Indefinite leave to remain does confer upon the individual a right to take up whatever employment he or she sees fit.

MR JUSTICE MITTING: But there is some control over it; is there not?

[90]MR MOFFETT: No, there is not, my Lord.

MR JUSTICE MITTING: I am sorry, it is the limited leave to remain that contains that.

[92]MR MOFFETT: Limited leave, yes. That is right, my Lord.[93]MR JUSTICE MITTING: You are quite right. It is self-employment only.[94]I am sorry, someone with indefinite leave to remain is entitled to self-employment or to --[95]MR MOFFETT: Or to whatever employment they see fit to take up.

MR JUSTICE MITTING: So that is an inappropriate comparison.

[97]MR MOFFETT: Indeed. In those respects citizenship and ILR are the same.[98]MR JUSTICE MITTING: Thank you very much. I will delete that.[99]MR MOFFETT: My Lord, the second point -- perhaps not so much by way of correction, but just to point something out to your Lordship -- your Lordship, when setting out facts and in particular dealing with the ESOL courses, referred to Mr Kong's evidence that a course was estimated as costing between £3,500 and £6,000.

MR JUSTICE MITTING: £3,500 and £4,900.

[101]MR MOFFETT: I beg your pardon, perhaps I did not write the figures down correctly.[102]Your Lordship may recall that Mr Hedges' evidence on behalf of the Home Office was that the cost of courses was estimated as between £380 and £762. I do not ask your Lordship to resolve that dispute, but simply to draw that to your Lordship's attention.

MR JUSTICE MITTING: Thank you.

[104]MR MOFFETT: Finally, if I may say, there was perhaps a slip of the tongue towards the end of your Lordship's judgment --

MR JUSTICE MITTING: Hardly surprising.

[106]MR MOFFETT: It was a long judgment -- dealing with the Race Relations Act, your Lordship said that you were unpersuaded that the right of abode constituted a social advantage. I suspect your Lordship meant to refer to --

MR JUSTICE MITTING: Indefinite leave to remain.

[108]MR MOFFETT: -- in that respect.

MR JUSTICE MITTING: I did.

[110]MR MOFFETT: My Lord, those were the only corrections.[111]MR JUSTICE MITTING: Well, if those are the only errors I have made, I have not done too badly. I am grateful to you for the corrections.[112]MR MOFFETT: My Lord, as I say I am very grateful for your judgment. That being your Lordship's decision, I would ask for the Secretary of State's costs. As I understand it, the claimants are not legally aided in this matter. So I would simply ask for an order to follow the event.[113]MR BAZINI: My Lord, as far as costs are concerned, it clearly is a matter at your discretion. This is a case which has been brought by claimants who plainly were disadvantaged. There can be no question about that. They have suffered a detriment. Clearly, when one looks at the way this thing has dealt with by the Secretary of State, we see that there have been issues on the way, for example, such as their failure to consider transitional arrangements for the KOL tests and so on.[114]So we say there was a certain justification for this matter to be brought and to be dealt with in the proper -- clearly it is a matter for your discretion as to the level of costs in this case.

MR JUSTICE MITTING: Well, they did not apply for a pre-hearing cap or anything of that kind.

[116]MR BAZINI: My Lord, no.[117]MR JUSTICE MITTING: I am afraid I see no reason why they should not pay the costs of unsuccessfully bringing these claims.[118]MR BAZINI: My Lord, so be it.[119]My Lord, the other matter briefly is an application for leave to appeal. We apply for leave generally, but specifically in relation to four points which we say are of some complexity and legal importance.[120]Very, very briefly: firstly in relation to section 1(b)(iii) of the Race Relations Act and the interpretation of the words "which is to the detriment of that other because he cannot comply with it", my Lord, you obviously had a long discussion with Mr de Mello yesterday as to the meaning of those words. We say it is a practical not a theoretical test, and it is something which we say should trouble the Court of Appeal in terms of the exact definition of that phrase.[121]My Lord, the second point is in relation to the definition of social advantage as found in section (1B)(c)(iv). Clearly, we are still none the wiser as to exactly how that should be defined, but we say that it clearly can be defined -- indefinite leave to remain can be a social advantage bearing in mind all the benefits that that brings and the way it changes that person's identity within society. We say that is also a matter of some legal importance that needs to be clarified.[122]In terms of the arguments on the prerogative issue, my Lord, simply we would say that it is actually quite an important issue. It raises very, very complicated -- potentially complicated -- issues, and particularly in relation to section 19, obviously there would be no defence if it could be said that the Secretary of State should be applying his prerogative in situations such as this.[123]Finally, in relation to the Human Rights argument, my Lord indicated that the claimants have family life in the United Kingdom and that these rules do not interfere with it. My Lord, we say Article 8 encompasses not only family life, but encompasses the right to develop that family life. It is quite plain that if you are advised that you have to wait another year for indefinite leave to remain, certain things flow from that. Your ability to develop family life, certainly for that year, in the way that you perhaps had planned for the preceding four years, has been fundamentally altered. So we say the Article 8 is engaged and they have been discriminated under Article 14.[124]My Lord, as I say, we apply for leave generally but those are the points we specifically raise.[125]MR JUSTICE MITTING: I think, like many of the arguments raised in this case, the contentions are of interest, possibly even outside the four walls of this case. But I see no realistic prospect of your succeeding on any of them and, applying that judgment, I therefore refuse permission to appeal. You must apply to the Court of Appeal if you want to take this matter any further.[126]MR BAZINI: My Lord, so be it.[127]MR JUSTICE MITTING: There will be an order that the claimants pay the defendant's costs, to be the subject of a detailed assessment if not agreed.[128]Thank you, Mr Moffett, and my thanks to you, Mr Bazini, and to Mr de Mello. ______________________________

Cited in 2 later judgments