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Sources of immigration law Part 2

As well as primary legislation referred to in part one of ‘sources of immigration law’ there are many pieces of secondary legislation which have relevance. The most obvious relevant piece of secondary legislation of the Immigration Rules.

Immigration Act of 1971

The Immigration Act 1971 gives the Secretary of State the power to present statements of the Immigration Rules or statements of changes to the Immigration Rules before Parliament concerning the practice to be followed in the administration of the Immigration Act 1971 for regulating entry and stay in the UK. A process called negative resolution is used. This means that when Rules or changes to the Rules are put before Parliament if Parliament remains silent on the issues, the Rules are approved. The current version of Immigration Rules is contained in HC 395, which has been subject to numerous changes. The Secretary of State is not bound to apply the Immigration Rules in all cases and retains a residual discretion to disapply them.

Immigration Rules are divided into parts and have sometimes very confusing appendices! HC395 came into force in 2004 and have been amended since extremely frequently. The Home Office website provides a consolidated version of the rules and changes since 2004.

Home Office Policy documents

As well as Immigration Rules there are Home Office policy documents. The Home Office policy documents come in numerous forms. The Home Office are working at replacing older guidance with ‘modernised guidance’. There is also guidance that is area specific such as points-based system guidance, European casework instructions, nationality guidance and so on. PBS guidance is particularly important as it relates to sponsors rather than migrants. 

This guidance is binding and must be followed by sponsors.

Case law

Immigration law was also created and interpreted by case law and there is a huge body of case law in this area. In the UK most cases are heard in the Immigration and Asylum chamber, either in the First-Tier tribunal or the Upper Tier Tribunal. Cases heard in the First-Tier Tribunal are never reported and are not binding on other courts. Upper Tier Tribunal cases may be reported and would, therefore, be binding on other decision-makers in the Upper Tribunal and the First-Tier Tribunal. If the decisions are unreported then they may only be relied upon by advocates if a proper application is made in the Tribunal and the Tribunal is satisfied that the point relied upon cannot be made by other reported decisions. In this instance, a Judge may allow unreported decisions to be relied upon.

Administrative Court

Cases, particularly judicial reviews, are sometimes heard in the Administrative Court, a division of the High Court, although judicial reviews are not binding in other courts, they can still be used to influence decision-making in other courts.  

For now, at least, directives from Europe which have been enacted into national law are still binding. A good example of this is the Immigration (European Economic Area) Regulations 2016 which supposedly interpret the Directive 2004/38. Where national law, in this instance the Regulations, are more restrictive than the directive, the directive should take precedence. You should bear in mind when relying on this is that there has been a lot of case law since 2004 and the directive has not been amended. The directive must be therefore viewed through this lens.

The Convention relating to the status of refugees and the 1967 protocol are the main sources of refugee law. These should be read with the UNHCR Handbook, the ‘Qualification Directive’ 2011/95/EU and the Immigration Rules as they relate to asylum, for the starting point for research into refugee law.

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