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JCWI: A note on the cap judgment and its implications

22 Dec 2010: JCWI outlines the the implications of Lord Justice Sullivan's and Justice Burton's ruling that the coalition government's temporary immigration cap on non-EU migrants had been unlawfully introduced.

The following document is a publication of the Joint Council for the Welfare of Immigrants (JCWI), outlining the implications of Lord Justice Sullivan's and Justice Burton's ruling that the temporary limit imposed on skilled migrants from outside the EU is unlawful:

A note on the cap judgment and its implications

What did the judgment say?

In summary the judgment given by the High Court on Friday 17 December 2010 held that the Secretary of State for the Home Department had acted unlawfully in purporting to impose an interim cap on out-of-country Tier 1(General) applicants and on the number of Certificate of Sponsorships' (COS) issued to licenced UK employers. Specifically the Secretary of State failed to lay the numerical limits for Tier 1 (General) and for Tier 2 (General) before Parliament as required by the Immigration Act 1971. The quantum of the limits were held to be part of the Rules themselves. We don't yet have a written judgment, and won't until early next year.

What has happened since the judgment?

At Friday's hearing the Home Secretary was granted a certificate to apply directly to the Supreme Court for permission to appeal. The High Court also gave the Secretary of State permission to appeal to the Court of Appeal in case the Supreme Court refuses permission to appeal.

In a ministerial statement brought to our attention via ILPA the Immigration Minister indicated that the Government would consider the written judgment once it is received in January 2011, and make a decision on whether to appeal against the judgment or not.

In the light of the above, he could not clarify what the Government's position would be in relation to those employers who have had their COS allocation reduced or reduced to zero.

A New set of limits

Ignoring Parliamentary convention and indeed the spirit of the judgment (Parliament should be given an opportunity to consider Rule changes in a Parliamentary democracy), the Government has now laid a new Statement of Changes of Immigration Rules before Parliament on 21.12.10 in response to Friday's Judgement.

The Statement of Changes closes Tier 1 (General) for overseas applicants (the limit was reached on 07.12.10) with effect from the 23.12.10 - until that time there is no limit in force for Tier 1 (General) so there is a small window for applications. It also lays before Parliament the limits that will apply for Tier 2 (General) from 21 December 2010 until 05 April 2010 ("10,382"). This has immediate effect.

What is the position with regards to applicants who were previously refused under the interim cap?

The interim cap was held to be unlawful for the reasons identified above. Those applicants who were refused an extension of stay or entry under it should write to the Home Office, providing evidence that they fulfilled the relevant requirements at the date of decision, and that as the interim cap was held to be unlawful, leave should be granted exceptionally on this basis to them.

We note that the Immigration Minister will not presently comment on the position of those refused leave on the basis of the interim cap. This is because the Government is considering pursuing an appeal, and our uncertain as to how they intend to deal with the matter until they have had the written judgment.

You can read The Immigration Minister's statement here

The Statement of Changes to the Rules can be found here

And you can watch the Immigration Minister in action here (forward to 15:32:30)