Interim Cap on Tier 1 and Tier 2 is Unlawful

Two senior judges have ruled that the interim cap on applications under Tiers 1 and 2 of the Points Based System was unlawful.

The interim cap, which was intended to be the precursor to the permanent cap which is to be imposed next April (2011) was meant to have been in force since last summer.

Following this judgment it appears that the cap hasn't been "in force" at all.

The High Court issued its judgment on 17th December 2010. Though the judgment is not yet available – it appears that the cap was found to be unlawful as the measure was not subjected to Parliamentary scrutiny.

This was the very same reason why in July this year the Court of Appeal decided that the system of putting the requirements for entry clearance and for leave to remain in "policy guidance" to which the Immigration Rules referred – but which was not included in the Rules – was unlawful.

It follows from the 17th December judgment that there isn't any interim cap on either Tier 1 or Tier 2 applications. The implications are likely to be substantial since many Tier 1 applications for entry clearance have been refused because the monthly quota of visas had allegedly been reached – and Tier 2 Sponsors have been prevented from issuing Certificates of Sponsorship beyond their allocations.

As we reported in "Challenge to immigration cap" the UKBA brought in these measures by HC 59 and HC 96. The challenge which has now succeeded had begun in October.

This is a serious set back to the UKBA's points based system and once more demonstrates the hazards of seeking to make laws without appropriate Parliamentary scrutiny.

More information will feature on our website www.gherson.com when the judgment becomes available.

For professional legal advice on immigration or work permit in the UK, contact the Gherson team.