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Aston Brooke Victory Legal Challenge: Home Secretary’s Immigration Cap deemed “unlawful” by a landmark decision by the High Court 
17 December 2010
The High Court has today made a landmark decision and has declared that the interim limits set by the Secretary of State are unlawful. The High Court came to the conclusion that she failed in her duty to put into practice what she had initially set before Parliament in relation to the publication of the interim limits and the accompanying mechanism and formula to calculate the certificate of sponsorships (CoS) for sponsors.
The judicial review was being heard by Lord Justice Sullivan and Mr Justice Burton. They both agreed that the Secretary of State failed to lawfully publish the interim limit for Tier 1 and failed in her duty to specify in Tier 2 the number of the limit and the number of certificates of sponsorships assigned to sponsors in the rules.
Both High Court judges agreed that the evidence placed before them overwhelmingly showed that the Secretary of State’s action was considered “unlawful”. The judges based their decision on the recent House of Lords decision in Pankina.
The changes introduced were substantive and should have been laid before Parliament. The judge declared:
"In my judgment no interim limits were lawfully published or specified by the secretary of state for either Tier 1 or Tier 2... and there is not, and never has been, a limit on the number of applicants who may be admitted either under Tier 1 or the number of certificates of sponsorship that should be issued to Tier 2 sponsors."
The full judgment was read out at the High Court.
The legal team representing ECCA was Hugh Southey QC, his junior Amanda Weston and Partners Kashif Majeed and Raman Purewal of Aston Brooke Solicitors. The legal team specialises in judicial review cases and their forte is within the remit of immigration law and practice. Hugh Southey QC and his junior are from Tooks chambers of famous Michael Mansfield QC who have made a specialty of taking the government to task.
The judicial review was brought by Aston Brooke Solicitors on behalf of the English Community Care Association (ECCA) which is the largest representative body for care home providers in England. Aston Brooke has been leading in their crusade to seek justice not just for employers in the social care sector but also for overseas migrants.
Mr Majeed stated that the decision was a “huge victory for the care sector which employs a large volume of overseas migrants who were subject to the limits”. He added: “I was always confident of victory and felt that it would have been a great injustice if we lost”.
Mr Purewal reiterated the level of success achieved and stated “the care sector is caring for vulnerable adults of the community and this decision means providers can maintain continuity of care”.
Labour's Shadow Home Secretary, Ed Balls, said: "The Government's immigration policy is in a state of chaos. Their so-called cap may have sounded good before the election but it wasn't properly thought through and didn't get the scrutiny it deserved."
"Not only will it do little to control immigration, it also risks damaging British businesses."
The Immigration Minister, Damian Green said: "I am disappointed with today's verdict. We will study the judgment and will appeal it, if we have grounds.
"We remain firmly committed to reducing net migration and will be introducing a permanent limit on non-European workers next April.
"We will do all in our power to continue to prevent a rush of applications before our more permanent measures are in place."
This flies in the face of Damien Green’s statement where he claimed that he would “rigorously defend” any legal challenge to the immigration cap and was confident that the limits were lawful.
The direct effect of the decision means that sponsored employers within the care sector (and all other sectors) should seek redress from the UK Border Agency on any refused applications for CoS’s as the refusals of CoS’s were based on an “unlawful” imposed limit. The decision will also mean that until the Secretary of State remedies the issue it will be as if there was “never a limit”.
If you wish to know more information on how the judgment affects you please contact us.
17 December BBC News Article: Introduction of immigration cap deemed 'unlawful'
Radio 5 Live Interview with Mr Majeed: Post High Court decision
Channel 4 News: Temorary Immigration Cap Illegal
The Guardian: Immigration cap overturned by High Court Judges
The Independant: Government immigration cap ruled invalid
Yahoo News: Migrant Workers cap ruled invalid