A Parliament that uses sovereignty to retrospectively destroy the rights of law abiding migrants has abused that sovereignty, contends
EDDIE ONYEKA
The reverberations arising from the Church of England’s apology for its historic complicity in the transatlantic slave trade continues to resonate across the world. In acknowledging its role in what it described as a “shameful past,” the Church expressed profound remorse for a “vile and disgusting sin” and committed itself to “acts of repentance, remembrance, reconciliation and renewal.”
Yet, as one national institution seeks to confront the moral burden of history, the British government is on the verge of committing the egregious moral wrong of taking away the accrued rights and expectations of thousands of migrants by changing the rules in the middle of the game.
Skilled workers in the United Kingdom- and thousands of them are Nigerians- currently have a five- year route to settlement.
The Government has announced a new immigration policy that would dramatically extend the qualifying periods for settlement for skilled workers from five years to 10 or 15 and intends to apply this law retrospectively to those already on the five- year route. If enacted, this law would represent a profound departure from the long-established principles of constitutional law, legal certainty, rule of law, human rights, rule against retrospectivity, fairness, and responsible governance. If passed, lawful migrants who had planned their lives on the five- year route would go through a harrowing period of “indefinite uncertainty” before they are able, if ever, to apply for settlement. If passed, this law may open a floodgate for potentially endless shifts of the goalposts in the middle of the immigration journey thereby rendering any legitimate expectation of eventual arrival to the settlement destination a pipe dream. It would mean that the government can, at any time, renege from its obligations under an existing law by simply enacting a countermanding law. There will surely be a concomitant uncertainty whether the extended period would not be further extended in line with shifting political winds. There is no assurance that the settlement scheme would not be abolished entirely and applied retrospectively against migrants who are already on the way. After all, some opposition parties are already calling for the abolition of the scheme in its entirety. The extended period is not all. The conditions under which the migrant must live during this period paints a picture that does not elevate human dignity. He is tied to the same employer and loses his status if he changes employment or is dismissed. He cannot change his role. He cannot negotiate his salary. He loses his status if his employer loses their sponsorship licence. He cannot work for more than 20 hours a week in a supplementary employment. He has only 60 days to secure a new sponsorship if he needs to switch employment. Having served the entire stipulated period, he is still not free. He cannot apply for settlement unless he provides a letter from the same employer to confirm that they are still willing to employ him for the foreseeable future. The threat to remove him from the UK comes from all angles and he is restrained from exercising his full humanity. And what about the immigration costs which run into tens of thousands of pounds, and leaving him in a state of perpetual indebtedness?
The living realities of many skilled workers raise profound questions about whether the immigration framework creates conditions that may, in certain circumstances, approach the legal concepts of servitude or forced labour. Many families arrive at the point of employment having sold off all assets back home to raise money and already crushed beneath a mountain of debt. Working, paying taxes, having no benefits, on a low wage, facing all the vagaries of the often discriminatory work place, the migrant is in a straitjacket, having as his only hope the expectation that he will be able to regain his life and liberty after five years. And now, that hope is under a threat.
The idea to change the rules in the middle of the game is against the doctrine of legitimate expectation. It holds that where a public authority makes a clear and unambiguous representation to an identifiable group who rely on it to their detriment, it is an abuse of power to resile from that representation without compelling justification. The High Court had strongly affirmed this principle
in HSMP Forum Ltd v SSHD [2008] EWHC 664 (Admin), where it held that retrospective application of new settlement rules to those who had already made their home in the UK “on a clear understanding of the criteria that would apply to them in the future is, in our view, indisputably retrospective in effect” — and unlawful. The government did not appeal. This is settled law.
The current settlement proposal is analytically indistinguishable from this cited case— and worse. That case altered qualifying criteria; this proposal doubles or trebles the qualifying period itself.
We are aware that the doctrine of legitimate expectation operates against secondary legislation and executive action and may not, as a matter of constitutional law, invalidate an Act of Parliament.
It is instructive that the government is proposing to birth this new policy through an Act of Parliament and not through a secondary legislation (Statement of Changes) as was done in the HSMP case. This approach is calculated and aims to ward off a judicial onslaught. No British court has ever annulled an Act of Parliament. The idea is to clothe the policy with judicial immunity, however repugnant it may be. Whether the government will be successful in its thinking remains to be seen.
The doctrine that Parliament has the right to make or unmake any law whatsoever remains a foundational domestic constitutional principle in England. On the orthodox model, an Act of Parliament cannot be struck down by domestic courts. Courts can make a declaration of incompatibility but this would not affect the validity or continued operation of the provision.
But this orthodoxy has been progressively and authoritatively challenged. In Simms [1999] UKHL 33, Lord Hoffmann established the principle of legality: Parliament must ‘squarely confront’ what it is doing when abrogating fundamental rights. In Thoburn v Sunderland City Council [2002] EWHC 195, Laws LJ identified a category of ‘constitutional statutes’ — including the Human Rights Act 1998 that cannot be impliedly repealed and require the highest scrutiny when conflicting legislation is enacted.
Most significantly, in R (Jackson) v Attorney General [2005] UKHL 56, Lord Steyn stated in terms: ‘The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom… it may become necessary for the courts to assert constitutional limits.’ Lord Hope confirmed: ‘The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.’ These dicta — reinforced in AXA General Insurance v HM Advocate [2011] UKSC 46 — establish that sovereign legislative power is not unconditional: there exists a threshold of fundamental constitutional injustice at which the courts reserve the right to respond.
Lord Steyn in Jackson: ‘The classic account given by Dicey… can now be seen to be out of place in the modern United Kingdom.’ The judiciary has articulated, at the highest level, that parliamentary sovereignty has limits — and has reserved the right to enforce them.
It is known that some of the best legal minds have been called to action to proceed to court if this law is passed and made to be retrospective. The courts may use this occasion to define more clearly the constitutional limits of Parliamentary powers and the extent to which the government can lawfully frustrate legitimate expectations created by its own policies.
The question is not whether Parliament can change immigration rules. It plainly can. The question is whether it can do so retrospectively, and in all the circumstances of the present case. The rule against retrospectivity is primarily a common law principle of statutory interpretation and rooted in the broader ideas of fairness, rule of law, legal certainty, legitimate expectations and the protection of accrued rights. There are strong indications that Parliament may proceed with the law regardless of any push back. Immigrants have become convenient scapegoats in the unfolding struggle for political power in the UK. The need to appease a section of the British population and to ward off the onslaught of opposition political parties may be an overriding factor to the ruling party. A Parliament that uses sovereignty to retrospectively destroy the rights of hundreds of thousands of law abiding migrants has not exercised sovereignty. It has abused it. And the courts must have the courage to respond to abuse.
The government may be aware that the proposed changes would, almost certainly, be struck down as unlawful by the courts if they are introduced by the Secretary of State through Statement of Changes as happened in the HSMP case. This is why it has decided to introduce them through an Act of Parliament. No court has ever struck down an Act of Parliament. But obiter dicta of respected senior judges have suggested that there are red lines.
It seems that a landmark case of great constitutional significance is in the making. All eyes would surely be on the judiciary.
Onyeka is a Regulated Immigration Consultant.
