UK Supreme Court rules in favor of Alvi

[transpondia-2011]

The Supreme Court has dismissed the Home Office appeal in Alvi UKSC 33, upholding the earlier Court of Appeal judgment in Pankina. This means that substantive requirements in immigration control must be laid before Parliament in the form of proper Immigration rules under s.3(2) of the Immigration Act 1971. Attempting to import or incorporate requirements in documents such as ‘policy guidance’ outside the proper rules is unlawful. This will have huge implications for the awful new immigration rules on family members.


http://www.supremecourt.gov.uk/current-cases/

http://www.supremecourt.gov.uk/docs/UKS ... 182_ps.pdf

Alvi, R (on the application of) v Secretary of State for the Home Department [2012] UKSC 33 (18 July 2012)

[peppekalle]

What happens to the recent immigration rules then?especially the one demanding the income to be 18000 or more to sponsor wife or husband.
http://www.freemovement.org.uk/2012/07/ ... s-of-alvi/

[transpondia-2011]

What happens to the recent immigration rules then?especially the one demanding the income to be 18000 or more to sponsor wife or husband.
http://www.freemovement.org.uk/2012/07/ ... s-of-alvi/

The threshold will still be around, but the specified documents in HC 194 are now totally screwed.

GUESS: This will likely leave a six to eight week window during which post 9 July applications will have to be considered under the old rules. People in a position to benefit from such a window will be profoundly lucky. Note I wrote 'likely'. The notion of a window is my GUESS based upon what happened following the Pankina decision where they created a window for people.

[peppekalle]

I came across this http://thinkinglegally.wordpress.com/20 ... statement/
She will present the new rules to the house of lords by Thursday

[transpondia-2011]

I came across this http://thinkinglegally.wordpress.com/20 ... statement/
She will present the new rules to the house of lords by Thursday

This means that the window of opportunity for those who were refused under the new rules to be considered under the old rules could possibly be LESS THAN two weeks.

My own notion of this so-called 'window' reflects back on the carve out they did when the court made its Pankina decision. In that situation, they only let people benefit if they had applied; and there was no quarter given to those who did not apply because they were discouraged by the new rules.

If this turns out to be the case, then we're left with a very small population of applicants who were refused and now get a second chance based solely upon a judicial anomally.

If on the other hand, SSHD cannot get the motion passed on Friday, then she'll have to wait until the Commons comes back into session. In that case, the window will be ENORMOUS, but still available only to those who were refused. And a refusal can only result where there has been an application.

So should a couple apply now out of pure speculation that they will be caught up in a judicial anomally and succeed? I'll leave that one to the 'experts' here...

[transpondia-2011]

A few more notes of yesterday's decision and today's upcoming Ministerial Statement are here...

http://www.facebook.com/Transpondia

[Gerryboy]

@ transpondia-2011

What happens if, hypothetically speaking, one applied pre July and was unable to meet the settlement requirements but subsequently granted 10 years' temporary leave under "exceptional circumstances"?

Can such a person appeal that decision within that "window of opportunity" and have his/her case looked at based on the old rules, which could then "qualify" him/her for Discretionary Leave of 6 years under Article 8 ECHR instead?

[transpondia-2011]

The only ways that the old discretionary leave comes into scope are...

if the person has ALREADY been granted the first 3 years DL and then applies for the 2nd 3 year leg. In that case they get the 2nd 3 year DL

if the person's appeal was ALLOWED on Article 8 grounds before 9 July, then they get the 3 year DL which can be renewed for the 2nd 3 years under the old rules

some scenarios that occur under HP

All the other scenarios lead to the 10 year route. This includes appeals that were allowed under the rules. All total there are about 6 scenarios not counting HP that have to be considered before knowing which transition provision is appropriate; most of the existing threads assume there is only a single scenario. I know there is a lot of mis-information on the forum about this, and I emphatically recommend consulting a knowledgeable professionial.

Having said all that, let's turn to your question and the answer is I don't know, and doubt anybody else does either. Nobody reckoned on having a 'window of opportunity', and especially as it affects DL. So you'll have to wait and see...

[chweetgurl]

Also

http://www.immigrationmatters.co.uk/sup ... fusal.html

[Gerryboy]

@ transpondia-2011

Thanks for your honest answer!!!

Some people would have mumbled on and come up with disjointed answers, confusing us the more.

Guess we remain stuck in "legal limbo" seeing how the HO is moving at snail's pace in issuing visas anyway, what with the imminent strike by it's staff (any update on that?).

[transpondia-2011]

Hopefully by the end of today, everybody will know whether the 'window' will be a long one, like 6 weeks; or a short one, like 10 days.

People who snuck their application in yesterday might turn out to be the lucky ones...

[transpondia-2011]

And from the Command Paper laid yesterday, CM 8423, this fragment...

The Government regrets that for these changes it has not been possible to comply with the convention that changes should be laid before Parliament no less than 21 days before they will come into force, but invites the Committee to note that these changes have no operational impact on applicants, sponsors or caseworkers. The changes only incorporate existing requirements, currently set out in guidance or lists external to the
Immigration Rules, into the Rules themselves to protect against further legal challenge.

So minimally 21 days are knocked out of any rollback opportunity...

[TLCLM]

And from the Command Paper laid yesterday, CM 8423, this fragment...

The Government regrets that for these changes it has not been possible to comply with the convention that changes should be laid before Parliament no less than 21 days before they will come into force, but invites the Committee to note that these changes have no operational impact on applicants, sponsors or caseworkers. The changes only incorporate existing requirements, currently set out in guidance or lists external to the
Immigration Rules, into the Rules themselves to protect against further legal challenge.

So minimally 21 days are knocked out of any rollback opportunity...

HI THERE - WHAT DOES THIS MEAN? AS LONG AS AN APPLICATION WAS SUBMITTED 21 DAYS AFTER JULY 9TH THE OLD RULES APPLY?

[Greenie]

I don't agree with the notion that Alvi provides a window of opportunity for applications to be considered under the old rules. Given that the new income thresholds were incorporated into the rules from 9th July, it is only the specified ways in which the threshold can be new, e.g. - employment with same employer for 6 months or income over a 12 months period, that will not be effective during the 'window' e.g. If an applicant applied showing an income of 18600 but he had earned this amount for less than a year and worked for his current employer for less than 6 months then such an application made before the rules were changed again following alvi should be successful (assuming other requirements were met)

[transpondia-2011]

I am in rare agreement with Greenie on this one.

The very most that someone can expect from the Alvi decision is relief from the evidence specified in the guidance. And only for a short period, if at all.

There will be no near-term relief for the income threshold itself. Although I am given to understand the Tribunal and UKBA have agreed one JR so far to serve as one of the needed test cases on the threshold. The first hearing is set for October.

[Greenie]

What happens to the recent immigration rules then?especially the one demanding the income to be 18000 or more to sponsor wife or husband.
http://www.freemovement.org.uk/2012/07/ ... s-of-alvi/

The threshold will still be around, but the specified documents in HC 194 are now totally screwed.

GUESS: This will likely leave a six to eight week window during which post 9 July applications will have to be considered under the old rules. People in a position to benefit from such a window will be profoundly lucky. Note I wrote 'likely'. The notion of a window is my GUESS based upon what happened following the Pankina decision where they created a window for people.

if you are in agreement then why did you 'guess' otherwise if your post.

And i am intrigued-please do point out the other instances in which you have disagreed with advice i have given?

[transpondia-2011]

They have today issued a statement, which contains this extract...

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.

Which gives the apparent window of 9 July to 19 July. People who are affected should consult a legal professional asap...

[transpondia-2011]

Alvi guidance here...

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

[transpondia-2011]

This UT decision on maintenance has been published. Worth a read...

http://www.ait.gov.uk/Public/Upload/j25 ... lombia.doc

[Rashid]

This UT decision on maintenance has been published. Worth a read...

http://www.ait.gov.uk/Public/Upload/j25 ... lombia.doc

Hi,
In light of 'Pankina' and 'Alvi' case, can anybody advise whether 90/180 days regarding absences is a part of immigration rules approved by Parliament and also, in case it is now, was it a Parliament approved rule back in 2007/08?
Thanks