Interestingly, a new case from the Court of Appeal illustrates some of the central points I was trying to make in this article. It arose from the legacy of the EU's data protection regulation, which was cut and pasted into UK law upon Brexit. EU legislators tend to be serious about privacy, scrutiny, clarity and so on and it turned out that the UK government's preferred home-grown approach to immigration law was inadequate when measured against those standards. The case is R (On the Application Of The 3Million) v Secretary of State for the Home Department [2023] EWCA Civ 1474:
"45. ... The rule of law has been recognised by Parliament to be a "constitutional principle": see section 1(a) of the Constitutional Reform Act 2005. The exact requirements of that principle are not always clear, although a magisterial analysis of the concept is to be found in Lord Bingham's book, The Rule of Law (2010). It seems to me that of particular relevance in the present context are three fundamental principles which can be discerned in the jurisprudence, including the judgment of this Court in the first claim for judicial review.
46. The first is the need for "specific" provisions rather than general principles of human rights or administrative law. This requirement of specificity is important in this context to reduce the risk of abuse of broad powers. But it might be said that this first principle could be satisfied by having a non-statutory policy document provided it has a sufficient degree of precision. This leads me to the second fundamental principle in this context.
47. This is that it is necessary in this context for there to be binding rules of law rather than simply policies. This will be true even if in general the policy must be complied with as a matter of public law.
48. At the time of this Court's judgment in the first claim for judicial review, the Court was concerned with the EU GDPR, which referred to "the legislature". This explains the references to "the legislature" in the judgment of Warby LJ, for example at para 50. The UK GDPR refers instead to "the Secretary of State". At first sight this might be thought to indicate that the Secretary of State is free to enact the safeguards required in any form that he chooses. That, however, would be inconsistent with the express language of Article 23(3), which makes it clear that the Secretary of State may exercise the power in Article 23(1) "only by making regulations under section 16 of the 2018 Act."
49. Furthermore, section 16(3) provides that regulations under that section are subject to the affirmative resolution procedure. This leads me to the third fundamental principle in this context, the importance of the role of Parliament.
50. Taken together, these provisions make it clear that Parliament has an important role to play in this context. They provide for democratic scrutiny by Parliament of the measures which the Executive invites it to approve. If it were open to the Executive to acquire powers in this context without setting out the safeguards in a document which also has to be approved by Parliament, that would risk undermining both the effective democratic scrutiny of the measure and the rule of law. If, for example, the safeguards could simply be contained in a policy document such as the IEPD, those safeguards could be amended or even abrogated subsequently without the need for the Executive to return to Parliament for its approval."
Lord Justice Singh goes on to say that none of this need lead to "undesirable rigidity", which is certainly something to be avoided in immigration law.
Imagine this approach being applied to immigration "law", such as it is. We'd have a set of rules that provide for specifics rather than general human rights or administrative law fall-backs, criteria would be set out in binding rules rather than fleeting policy documents and parliament would play a greater role, ensuring proper scrutiny and safeguards.
Interestingly, a new case from the Court of Appeal illustrates some of the central points I was trying to make in this article. It arose from the legacy of the EU's data protection regulation, which was cut and pasted into UK law upon Brexit. EU legislators tend to be serious about privacy, scrutiny, clarity and so on and it turned out that the UK government's preferred home-grown approach to immigration law was inadequate when measured against those standards. The case is R (On the Application Of The 3Million) v Secretary of State for the Home Department [2023] EWCA Civ 1474:
"45. ... The rule of law has been recognised by Parliament to be a "constitutional principle": see section 1(a) of the Constitutional Reform Act 2005. The exact requirements of that principle are not always clear, although a magisterial analysis of the concept is to be found in Lord Bingham's book, The Rule of Law (2010). It seems to me that of particular relevance in the present context are three fundamental principles which can be discerned in the jurisprudence, including the judgment of this Court in the first claim for judicial review.
46. The first is the need for "specific" provisions rather than general principles of human rights or administrative law. This requirement of specificity is important in this context to reduce the risk of abuse of broad powers. But it might be said that this first principle could be satisfied by having a non-statutory policy document provided it has a sufficient degree of precision. This leads me to the second fundamental principle in this context.
47. This is that it is necessary in this context for there to be binding rules of law rather than simply policies. This will be true even if in general the policy must be complied with as a matter of public law.
48. At the time of this Court's judgment in the first claim for judicial review, the Court was concerned with the EU GDPR, which referred to "the legislature". This explains the references to "the legislature" in the judgment of Warby LJ, for example at para 50. The UK GDPR refers instead to "the Secretary of State". At first sight this might be thought to indicate that the Secretary of State is free to enact the safeguards required in any form that he chooses. That, however, would be inconsistent with the express language of Article 23(3), which makes it clear that the Secretary of State may exercise the power in Article 23(1) "only by making regulations under section 16 of the 2018 Act."
49. Furthermore, section 16(3) provides that regulations under that section are subject to the affirmative resolution procedure. This leads me to the third fundamental principle in this context, the importance of the role of Parliament.
50. Taken together, these provisions make it clear that Parliament has an important role to play in this context. They provide for democratic scrutiny by Parliament of the measures which the Executive invites it to approve. If it were open to the Executive to acquire powers in this context without setting out the safeguards in a document which also has to be approved by Parliament, that would risk undermining both the effective democratic scrutiny of the measure and the rule of law. If, for example, the safeguards could simply be contained in a policy document such as the IEPD, those safeguards could be amended or even abrogated subsequently without the need for the Executive to return to Parliament for its approval."
https://www.bailii.org/ew/cases/EWCA/Civ/2023/1474.html
Lord Justice Singh goes on to say that none of this need lead to "undesirable rigidity", which is certainly something to be avoided in immigration law.
Imagine this approach being applied to immigration "law", such as it is. We'd have a set of rules that provide for specifics rather than general human rights or administrative law fall-backs, criteria would be set out in binding rules rather than fleeting policy documents and parliament would play a greater role, ensuring proper scrutiny and safeguards.
That's powerful.