Howard's Haven

16 The reasoning of the most learned Senior Immigration Judges Storey and Perkins in the case of NA is that the annex to the Immigration Rules does not allow any flexibility in the considering of post decision evidence. However, it is submitted that a subordinate piece of legislation does not have the constitutional ability to overrule what is stated in statute. In the celebrated Case of Proclamations (1611) 12 Co Rep 74, it was stated that:

Note, the King by his proclamation of other ways cannot change any part of the common law, or statute law, or the customs of the realm, 11 Hen. 4. 37. Fortescue De Laudibus Angliae Legum, cap. 9. 18 Edw. 5. 35, 36, etc. 31 Hen. 8. Cap. 8. Hic infra: also the King cannot create any offence by his prohibition or proclamation, which was not an offence before, for that was to change the law, and to make an offence which was not; for ubi non est lex, ibi non est transgression: ergo, that which cannot be punished without proclamation, cannot be punished with it. …

…the law of England is divided into three parts, common law, statute law, and custom; but the King’s proclamation is none of them: also malum au test malum in se, aut prohibitum, that which is against the common law is malum in se, malum prohibitum is such an offence as is prohibited by Act of Parliament, and not by proclamation.

Also it was resolved, that the King hath no prerogative, but that which the law of the land allows him.

17 Although the Crown itself no longer makes proclamations in the true sense, royal proclamations are now made by ministers, on behalf of the Crown, in the form of secondary and subordinate legislation. It follows that, therefore, the Secretary of State for the Home Department has no power, according to our constitutional principle, to override what section 85(4) of the 2002 explicitly allows, namely that post decision evidence, insofar as relevant, can be considered by the Court in the disposition of an appeal.