The Process of Making Changes to the Immigration Rules
As many readers will be aware, on 04 December 2023, the Home Secretary James Cleverly announced that the financial threshold for family visas would change to £38,700. Then on 21 December 2023, following much criticism of a policy that will mean only 40% of people will be able to afford to have family members join them in the UK, the Government altered its plans, announcing that the threshold would first be raised to £29,000. This change came into force on 11 April 2024; those who already have family visas, or who submitted their online applications before this date, will continue to have their applications and extension applications assessed against the old threshold of £18,600. The Government plans to raise the financial threshold to around £34,500 at an unspecified time later in 2024, and to around £38,700 “by early 2025”.
The plans to raise the family visa financial threshold above the UK’s median salary may have caused you to question where the Home Secretary’s power to make these changes comes from, and what scrutiny or control Parliament, or anyone else, has over the changes. This post outlines the process by which the Immigration Rules are changed, and the opportunity (or lack thereof) for scrutiny at each stage, using the family visa changes as a case study.
What Are the Immigration Rules?
In the UK, some immigration law is set out in Acts of Parliament. These laws begin as Bills that are debated in the House of Commons and the House of Lords, and are then given Royal Assent by the Monarch. So, for example, the Safety of Rwanda (Asylum and Immigration) Bill, which received Royal Assent on 25 April 2024 and is now known as the Safety of Rwanda (Asylum and Immigration) Act 2024, is a law of this kind. Other parts of immigration law are set out in statutory instruments. However, much of UK immigration decision-making is made based on the ‘Immigration Rules’ and the accompanying policy guidance. For example, the rules on sponsoring a partner to come to the UK, including the new financial thresholds, are set out in Appendix FM of the Immigration Rules. The Immigration Rules have been described by the Law Commission as a ‘unique form’ of legal text, ‘a hybrid of administrative policy and legal rules’ (Law Commission Consultation Paper, para 3.3).
The Power to Make the Immigration Rules
The source of the Government’s power to make the Immigration Rules is the Immigration Act 1971. Historically, the Home Secretary’s powers in the administration and control of immigration fell within the royal prerogative. This means they were part of the powers the common law recognised as belonging to the Crown, rather than having their source in statute. The Supreme Court explained in Alvi [2012] UKSC 33 that the royal prerogative in this area has been superseded by the 1971 Act, so the source of the Secretary of State’s powers in this area is now the 1971 Act itself (Alvi [31]). This means the Secretary of State’s powers are delimited by the 1971 Act. The Secretary of State must exercise their powers in accordance with the 1971 Act, which sets out certain requirements regarding the procedure for making the Immigration Rules.
The Immigration Act 1971 does not explicitly empower the Secretary of State to make the Immigration Rules (Law Commission Consultation Paper, para 3.4). Rather, section 1(2) of the Act provides that those without the right of abode ‘may live, work and settle’ in the UK, ‘subject to such regulation and control… as is imposed by this Act’. Section 1(4) then refers to ‘the rules laid down by the Secretary of State’ to be followed in the administration of the Act. It states that the rules shall include provision for admitting persons for particular purposes, such as for employment or as dependants.
It is through ‘Statements of Changes in Immigration Rules’, that additions or amendments to the Immigration Rules are laid before Parliament and subsequently take effect. Section 3(2) of the Immigration Act 1971 sets out that 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’ as to the practice to be followed in the administration of the 1971 Act. The changes to the family visa financial thresholds were set out in Statement of changes HC 590 on 14 March 2024.
Parliamentary Scrutiny: The Negative Resolution Procedure
Under Section 3(2) of the Immigration Act 1971, Parliament oversees the Secretary of State’s regulation of immigration control via a negative resolution procedure. It provides that, if a statement of changes laid before Parliament is disapproved by a resolution of either the House of Lords or the House of Commons within 40 days, the Secretary of State has 40 days to lay a new statement of changes. However, Parliament cannot amend statements of changes by this procedure (Alvi [36]), and a disapproved statement of changes remains effective until the Secretary of State introduces a further statement of changes (Law Commission Consultation Paper, fn 438).
Parliament’s ability to scrutinise statements of changes via this procedure is limited, as demonstrated by the events following the laying of Statement of changes HC 590.
No requirement for a vote
Firstly, the Government is not required to make time for a vote on a statement of changes in the House of Commons, even if MPs table motions against the changes. For instance, in the case of the new financial thresholds, MP Alison Thewliss of the SNP tabled motions for a vote to disapprove the statement of changes, but time has not been made for a vote. A Westminster Hall debate on the financial thresholds for family visas was held on 23 April 2024, but this did not involve a vote.
Secondary Legislation Scrutiny Committee
In practice it is the Secondary Legislation Scrutiny Committee in the House of Lords that carries out a closer examination of proposed changes (Alvi [35]). However, although the Committee is able to criticise statements of changes, it is rare that this leads to a statement of changes being disapproved by vote in Parliament (Law Commission Consultation Paper, para 12.9).
The Committee produces reports scrutinising the Immigration Rules, available online here. The committee’s 20th report of Session 2023-24 draws special attention to Statement of changes HC 590. The Committee criticised the Home Office’s failure to explain how its proposed policy aims produced the specific threshold of £38,700 (para 12); its failure to publish a full impact assessment (paras 15-18), the lack of consultation on the measure (paras 19 – 21) and the lack of an equalities impact assessment (paras 22 to 26). It also suggested that Parliament may wish to consider the potential that a large increase in Article 8 claims will follow the changes (para 26).
Impact Assessment
In particular, the Committee noted that Parliament’s ability to scrutinise statements of changes depends on awareness of the potential impact of the changes. The explanatory memorandum to Statement of changes HC 590 stated that a full impact assessment of the changes had been prepared. However, this has not yet been made available. The Secondary Legislation Scrutiny Committee made the following comment:
“This Statement of Changes is a yet further example of the Home Office failing to provide adequate information to Parliament to allow informed scrutiny; in this case, a clear-cut failure to publish an Impact Assessment, including for significant measures laid more than five weeks ago.
We have criticised the Home Office’s explanatory material with such frequency that we are concerned there may be a systemic or cultural issue that is preventing the Home Office from getting it right. […] In the meantime, the House may wish to consider further questions to the Minister about the impact of recent changes to immigration rules.”
The Secondary Legislation Scrutiny Committee’s report was published on 27 March 2024. A month has passed, and still the impact assessment referred to in the explanatory memorandum accompanying Statement of changes HC 590 has not been released.
Timing and Consultation
The explanatory memorandum issued with Statement of changes HC 590 stated that the change to the financial thresholds ‘had not been the subject of a formal public consultation, as this would be disproportionate given the nature of the changes’. That consultation would have been ‘disproportionate’ seems hard to believe regarding a change that means that around 50% of UK employees are now unable to rely on their salary to sponsor a partner’s visa. It is also surely difficult to assess whether consultation would be disproportionate, when the Government has not published an impact assessment of the changes. The Secondary Legislation Scrutiny Committee stated: ‘We do not believe that the Home Office can fully understand the effects of its policies if it does not consult those who will be impacted’.
Ability to consult on changes is obviously affected by the amount of time between a policy announcement or laying of a statement of changes, and the change coming into force. This was highlighted by the closing of the Ukraine Family Scheme on 19 February 2024, on the same day that the change was announced and the relevant statement of changes published. The Scrutiny Committee noted in its sixteenth report that closing the Ukraine scheme with immediate effect breached the convention that a negative instrument should be laid in Parliament at least 21 days before it comes into effect. The Home Office stated that it closed the scheme with immediate effect in order to avoid a surge in applications. The Scrutiny Committee criticised this reasoning, questioning how the Home Office could predict both a surge in applications, whilst also claiming that the number of people affected by the change would be small.
Conclusion on Parliamentary Scrutiny
It is clear that Parliament is not being given adequate time and information to properly scrutinise changes to the Immigration Rules. In Alvi, Lord Dyson stated that ‘the whole point of section 3(2) is to give Parliament a degree of control over the practice to be followed by the Secretary of State in the administration of the 1971 Act for regulating immigration control’. The Home Office’s failure to provide Parliament with adequate information concerning the impact of the proposed changes to the financial thresholds for family visas, and its failure to carry out a formal consultation process, raises questions as to whether Parliament had any real opportunity for oversight over the Home Secretary’s proposed changes in this case. Further, while the increasing length and complexity of the Immigration Rules since 1971 has been widely noted, the decision in Alvi suggests this cannot be used as an excuse to frustrate the purposes of s 3(2) of the 1971 Act.
Of course, part of the problem is that, in the current political context, few politicians seem willing to question restrictions on immigration. Alison Thewliss’s motions that Statement of changes HC 590 should be disapproved have received only 9 and 11 signatories, none of which have come from members of the Conservative or Labour party.
Other Routes for Challenging the Immigration Rules
Given legal, political, and practical limits on parliamentary scrutiny of proposed statements of changes, other options for challenging the Immigration Rules should be considered. The Government’s decision to raise the family visa financial thresholds in stages following the response to its policy announcement on 4th December demonstrates the impact media scrutiny can have. Furthermore, legal challenges to the changed financial thresholds are expected, as discussed in our earlier post, and those who cannot meet the minimum income requirement based on their employment have other options including relying on their Art 8 ECHR rights, as outlined here.
Contact our Immigration Barristers
For expert advice on the minimum income requirement for family visas, or help with another UK visa application or immigration appeal, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
