The UK Border Agency has been accused of inconsistency in their approach towards Guernsey work permits. The issue came out after numerous applications for Indefinite Leave to Remain, where applicants relied on the time spent in the Bailiwick of Guernsey in order to show 5 years continuous residence in the UK.
Numerous applicants obtained their work permits to work in Guernsey and subsequently moved to the United Kingdom, having first obtained permission to work in the UK. According to the Immigration Rules an applicant must have accumulated 5 years of continuous residence in the UK in order to be eligible for Indefinite Leave to Remain. Some applicants switched into a different category after arrival in the UK, for example into a Highly Skilled Migrant Programme, others obtained work permits for employers in the UK. The Immigration Rules further prescribe that 5 years of continuous residence in the UK must have been spent in a combination of any of the categories under specific Immigration Rules.
Some of the decisions of the UK Border Agency concentrate on the fact that a work permit in Guernsey was not under the immigration rules, and therefore time spent there cannot be counted towards 5 years continuous residence in the UK. We stress the word “some” because not all decisions have been negative. Mulberry Finch has represented many clients in similar situations and has been successful in obtaining approvals. From our experience it is clear that this is a challenging area of the law and applicants should seek professional help. In many cases the arguments can be run as the basis of a judicial review challenge.
Mulberry Finch have had success arguing that Guernsey refusals constitute an error of law. This is because the Immigration Act 1971 in Schedule 4 entitled “Integration with United Kingdom Law of Immigration Law of Islands” provides that leave to enter or remain granted in any of the Islands will be treated as given under this Act.
“The Island” is then interpreted in the Act as the Channel Islands and Isle of Man. Bailiwick of Guernsey is part of the Channel Islands.
The Immigration Act 1971 is the basis of immigration law, providing the framework for immigration control. It creates an authority for immigration control and it gives the Secretary of State the authority to issue “statements of the rules as to the practice to be followed in the administration of this Act” (s. 3(2)). Those rules are presented in Parliament, but they are not a legislative measure enacted by the Parliament. They are indeed not even secondary legislation, but an executive prerogative exercised on the basis of s. 3(2) of the Immigration Act 1971 and fall under this act. Currently the rules in force are the Immigration Rules HC 395. Those rules are quoted by the UK Border Agency in their refusal letters as the legal grounds for their decisions.
Work permits granted under the laws of Bailiwick of Guernsey are by virtue of the operation of s.1(1) of the Immigration Act 1971 to be treated as if given under this Act to enter or remain in the UK. The 1971 Act, a law enacted by the Parliament takes precedence before any statements of the Secretary of State, including the Immigration Rules. The1971 Act itself confirms that time spent in Guernsey is to be counted as time spent in the UK. If a literal interpretation of the Immigration Rules gives a different conclusion, it is to be disregarded.
In addition to the above, another Act of Parliament – the British Nationality Act 1981 provides a definition of the United Kingdom in section 50 (1) as including Great Britain, Northern Ireland and the Islands. The same section defines “the Islands” as “the Chanel Island and the Isle of Man”.
The UK Border Agency does not appear to have a clear and published policy on this matter. There is no mention of this issue in their Immigration Directorate Instructions.
It follows that in two major pieces of legislation governing Immigration and Nationality law Parliament has expressed its intention to treat the Channel Islands, which include Bailiwick of Guernsey, as part of the UK. Even if the Home Office policy in this regard was published in their Immigration Directorate Instructions, this would be inconsistent with the existing legislation. The Secretary of State does not have the prerogative to limit the scope of legislation by introducing restricting practice.
