Those applicants who were on the brink of submitting have been left in limbo, significantly disadvantaged by the closure itself and the legitimate expectation they held that any such closure would involve adequate notice.
So, what are the main legal issues resulting from the closure of the visa route?
The decision to change the Immigration Rules with immediate effect may be considered unlawful for three reasons:
- The evasion of meaningful parliamentary review;
- The failure to adhere to the standard convention of 21 days’ notice; and
- The proportionality of the decision itself.
As such, there is a lawful basis for applicants to challenge the SSHD’s decision through the process of judicial review.
Evasion of meaningful parliamentary review
The Immigration Act 1971 authorises the SSHD to regulate immigration. However, section 1(4) and 3(2) of the 1971 Act require the SSHD to exercise her powers in accordance with the Immigration Rules (“the Rules”) laid before Parliament.
The Supreme Court confirmed in the case of Hesham Ali [2016] UKSC 60 that the point of the Rules “is to give Parliament some control over the practice to be followed by the [SSHD]” in regulating immigration. Changes to the Rules are laid before Parliament. As discussed in R (Alvi) [2012] UKSC 33 and R (Munir) [2012] UKSC 32 Parliament exercise their control through a negative resolution procedure.
As Parliament was in recess when the changes were laid, there was little opportunity for it to express its disapproval prior to their taking effect. This contradicts the complementary relationship outlined in Alvi, Munir and Hesham Ali of Parliament and the SSHD in determining the Rules.
Failure to adhere to 21 days’ notice
Usual practice dictates that any changes to the Rules come into force no sooner than 21 days after they are laid before Parliament. This ensures that they are adequately debated, and enables potential affected applicants the opportunity to prepare. This practice is followed in the vast number of changes laid before Parliament and is a matter of procedural fairness (Pathan [2020] UKSC 41). Potential Investor applicants therefore have a legitimate expectation that this notice period would be adhered to as per previous repeated practice (GCHQ [1985] AC 374).
As discussed in Mandalia [2015] UKSC 59 and R (Nadarajah) [2005] EWCA 1363, where a public authority adopts a certain practice, the law requires this practice to be followed unless there is good reason not to. Here, the justification provided is to prevent the movement of illicitly obtained wealth into the UK, as well as general national security concerns. However, a justification of the immediate closure of the route to all nationalities has not been given.
Embedded within the Rules is the ability of the SSHD to refuse applications if she has reasonable grounds to suspect that the source of funds were in any way linked to the proceeds of crime or unlawfulness (paragraph 245EB (e), 245ED(g) and 245EF(f)). Given the inaccessibility of the Tier 1 (Investor) route to the general public, the UK issues around 100 – 200 visas each year. This means that the Home Office has the capacity to scrutinise each applicant in greater depth should any doubts arise.
Closing the route with immediate effect to all applicants undermines the stringent legal due diligence that law firms and banks undertake, as well as the responsibility of the Home Office to adequately scrutinise each application, to make the Tier 1 (Investor) visa viable and, largely, untainted.
Proportionality of the decision
The decision is disproportionate, reactionary and grossly unfair to the vast majority of sincere applicants who are unconnected to jurisdictions of any security concerns. The months, if not years, of preparation by engaging lawyers and financial advisors, liquidating assets, selling property, opening UK bank accounts, and enrolling children in UK schools, appear to have become futile.
Rather than providing a decent alternative, the SSHD has instantly shut out credible applicants with legitimate sources of funds, creating a huge financial, social and emotional burden on them. The SSHD has vaguely noted changes to the Innovator route, however these are not due until autumn 2022.
Conclusion
Whilst there is no doubt that the visa should not enable money laundering or illicit spending, the SSHD had an array of other methods at her disposal to reform the system. What made the UK so attractive for potential investors was, what appeared to be, a stable economy and rule of law. By undermining that system of lawful operation, the SSHD has acted in a way that will have repercussions far beyond the lives of potential applicants. A country which makes rash, panicked decisions, without notice or proper protocol, is not one that will be able to entice future investors at a time when they are needed most. As a result, there is now a lawful basis for the judicial review of the SSHD’s actions.
Our Citizenship and Immigration team are on-hand to answer any queries that you may have regarding the closure of the Tier 1 (Investor) visa and are looking at legal challenges to the process used to close the visa category without notice.
