Munir & Anor, R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

The appeals concern two families who entered the United Kingdom as visitors, overstayed, and later sought indefinite leave to remain. Their applications were refused after the Secretary of State withdrew a long-standing discretionary policy known as “DP5/96”, which had previously guided case-workers when deciding whether to remove families with children who had lived in the UK for seven years or more.

Both families instituted judicial review proceedings.

• The first claim was allowed by Judge Bidder, who held that it was irrational and unfair to deny the family the benefit of DP5/96 after they had met the seven-year residence threshold before its withdrawal.
• The second claim was refused by Judge Holgate because the children had not met the seven-year threshold when the policy was withdrawn.

On appeal, the Court of Appeal allowed the Respondent’s appeal in the first case and dismissed the second family’s appeal, concluding that the withdrawal of DP5/96 was neither irrational nor unfair. A new argument was then advanced: that DP5/96, and its withdrawal, amounted to “immigration rules” within section 3(2) of the Immigration Act 1971 and therefore should have been laid before Parliament. The Supreme Court (constituted by Judge Dyson and four concurring Justices) delivered the present judgment on that issue.

Legal Issues Presented

1. Does a concessionary policy such as DP5/96, or its withdrawal, constitute a “statement of the rules … as to the practice to be followed” within the meaning of section 3(2) of the Immigration Act 1971, thereby obliging the Secretary of State to lay it before Parliament?
2. Is the power to create or withdraw such policies derived from the royal prerogative or from the statutory scheme of the 1971 Act?

Arguments of the Parties

Appellants' Arguments

• DP5/96 laid down criteria that, in practice, determined when enforcement action would not be taken. It therefore amounted to a rule of practice that had to be laid before Parliament under section 3(2).
• Withdrawing DP5/96 without parliamentary scrutiny was unlawful; families who had already accrued seven years’ residence were entitled to rely on it.

Respondent's Arguments

• All concessionary policies are issued under the royal prerogative; section 3(2) has no application.
• Even if section 3(2) were engaged, DP5/96 was too flexible to amount to a binding rule; it merely guided case-workers to consider individual circumstances.
• If the withdrawal were unlawful, so was the original policy because it had never been laid before Parliament—an untenable result.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Source of Rule-Making Power. The Court held that the Immigration Act 1971 is a comprehensive statutory code for immigration control. Section 33(5) preserves the prerogative only for enemy aliens, implying that, for everyone else, the power to create rules and grant leave stems from statute, not from the prerogative.

2. Statutory Duty to Lay Rules. Although the Act does not expressly say the Secretary of State “must” issue rules, sections 1(4) and 3(2) are read together as imposing that duty. Parliament intended oversight through the laying process; that purpose would be defeated if the minister could simply choose not to promulgate rules.

3. Nature of DP5/96. The policy expressly required each case to be decided on its merits and listed only factors “likely” to be relevant. It did not guarantee a particular outcome, nor did it direct that the existing rules be disapplied in every qualifying case.

4. Test for Engagement of Section 3(2). A concessionary statement is an “immigration rule” only if it rigidly prescribes how discretion will be exercised. The greater the flexibility, the less likely it is caught by section 3(2).

5. Application of Test. DP5/96 was considered “amply flexible”; therefore it was not a statement of practice requiring parliamentary laying. Consequently, its withdrawal likewise did not require laying.

6. Effect on the Appeals. Because DP5/96 was never an immigration rule within the statutory sense, neither family could invoke section 3(2) to challenge its withdrawal. The High Court decision in the first claim was therefore wrong, and the Court of Appeal’s disposal of both claims was correct.

Holding and Implications

HOLDING: The appeals are DISMISSED.

Implications: The Supreme Court clarifies that:

• The power to make and change immigration rules is derived from the Immigration Act 1971, not the royal prerogative (save for the limited enemy-alien context).
• Only rigid, prescriptive statements constitute “immigration rules” that must be laid before Parliament. Flexible concessionary policies, such as DP5/96, fall outside section 3(2).
• Ministers may withdraw such policies without parliamentary procedure, though their exercise remains subject to general public-law principles of fairness and rationality.

The decision has immediate effect on the parties—both families receive discretionary leave already offered—but sets no new procedural requirement for future concessionary policies. It provides authoritative guidance on when parliamentary oversight is triggered under the 1971 Act.