On 18 July the Supreme Court delivered its judgment in the case of Alvi. It set out that any requirement which, if not satisfied by the migrant, would lead to an application for leave to enter or remain being refused is a ‘rule’ within the meaning of section 3(2) of the 1971 Immigration Act and must therefore be agreed by Parliament.
Following this judgment, statements of changes to the Immigration Rules were laid before Parliament on 19 July (coming into force on 20 July) and 5 September (coming into force on 6 September). These changes to the Immigration Rules incorporate requirements into the rules that applicants had previously been required to meet but which were contained in guidance or other documents rather than the rules themselves.
The statement of changes to the Immigration Rules laid on 19 July 2012 was preceded by a written ministerial statement on 18 July 2012 delivered in the House of Lords by Lord Henley which stated that ‘guidance on decided cases, where an applicant has been refused on the basis of failure to meet a requirement that they believe should have been in the rules but was not, will be issued soon’.
We have now published the Alvi judgment guidance.
The following is a summary of the approach we will take:
Any application outstanding at the time the changes to the rules made on 19 July and 5 September came into force will be decided on the basis of the rules in force at the time of decision.
The UK Border Agency will not reconsider cases which were decided before the judgment where the time for bringing an appeal or judicial review has expired.
Any case which is currently subject to appeal or judicial review proceedings, or in which the time for bringing an appeal or judicial review has not yet expired, will be considered in line with the judgment on the individual circumstances of the case.