As reported yesterday by Immigration Matters the High Court in London confirmed the expected further hammer blow to Home Secretary Theresa May’s troubled plans for a interim cap on UK immigration.
Two senior judges today ruled that the temporary limit imposed from 28 June on skilled migrants from outside the European Union is unlawful due to the fact that government ministers failed to obtain proper Parliamentary approval before it was implemented and imposed on employers and migrants.
The judgment by Lord Justice Sullivan and Justice Burton followed Judicial Review legal challenges to the cap on Tier 1 and Tier 2 migration by the Joint Council for the Welfare of Immigrants (JCWI) and the English Community Care Association (ECCA).
The interim cap was hurriedly introduced by the UK Border Agency this summer to prevent a rush applications by non-EU skilled migrants. At the time Home Secretary Theresa May said the temporary cap was intended as an interim measure while the coalition Government agreed on a permanent cap to be introduced next April.
JCWI Chief Executive Habib Rahman, who brought the case on behalf of Tier 1 highly skilled migrants, said the judgment was a “victory for democracy and the rule of law”.
“It shows that the Home Secretary cannot simply sideline parliament and the requirements it has imposed to check her powers. It also has important implications for migrants in the UK who were affected by the imposition of an unlawful limit.”
The Immigration Minister Damian Green has said he is disappointed with the ruling. “We will study the judgment and will appeal it, if we have grounds.
“We will do all in our power to continue to prevent a rush of applications before our more permanent measures are in place.”
The temporary cap was designed to cut by 1,300 the number of skilled workers coming to Britain under tiers one and two of the points-based immigration system. It aimed for a 5% cut, bringing the total down to 18,700.
Liberal Democrat and coalition Business Secretary, Vince Cable, publicly voiced concerns in September that the temporary cap had done “a lot of damage to British industry”.
The limit on skilled migrants is part of a package including deep cuts in the number of overseas students. They are designed to scale back annual net migration to Britain from the “hundreds of thousands to the tens of thousands”, according to the government.
The Court of Appeal had already ruled in the summer that the Home Secretary acted unlawfully when retrospective changes were made to the former highly skilled migrant scheme (HSMP) without proper parliamentary approval.
In that ruling Lord Justice Sedley said ministers could not abandon a constitutional principle that had stood for four centuries as a pillar of democracy. “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.”
Home Office ministers announced their intention to introduce the temporary cap to Parliament but failed to detail how it would operate or the actual limit on skilled and highly skilled migrants until it came into force. Details were then posted on the Home Office website but not presented to parliament.
The ECCA, which represents thousands of care homes in the UK, were concerned that the cap was having a detrimental effect on recruitment in the care sector.
Around 30 Filipino migrant care workers, who make up a large proportion of skilled care workers in the industry, attended the hearing but were prevented from displaying a “Save our Senior Carers” banner in court.
The ruling gives some hope to employers stripped of their allocation of Certificates of Employment (CoS) which they issue to migrant workers, many of whom are here on Tier 4 student visas and are allowed to switch immigration categories whilst in the UK. The government has already announced plans to change this rule and force students to return home before applying for any change of immigration category.
Hundreds of care home employers have been appealing to the UK Border Agency to re-issue CoS certificates for desperately needed Senior Carers since the interim cap was introduced with less than two weeks warning.
One of the reasons now being given for refusing to issue the CoS was because the salary was below £20000, a fact put before the two judges during the hearing. The minimum salary for Senior Carers, which are on the government’s official shortage occupations list, was set by the Home Office under the previous Work Permit scheme.
The judgment, which largely turned on the earlier Pankina case, blocks Home Secretary Theresa May’s interim cap on migration, but only until the changes can be put before Parliament and on to the statute books or a widely expected appeal is lodged.
The permanent cap, limiting Tier 2 visas to around 21,000 workers, will be implemented next April.
In response to the judgment, Immigration Minister Damian Green said:
‘Today’s judgment will have no impact on the permanent limit on non-European workers the government will introduce next April.
‘This ruling is about process, not policy – the policy of having a limit has not been found to be unlawful.
‘The court’s ruling rests on a technicality. We will set this right in the next few days to ensure we can continue to operate an interim limit.
‘We remain firmly committed to reducing net migration to the tens of thousands, and will continue to do everything in our power to prevent a rush of applications before our more permanent measures are in place.’
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