2.2 Delegated or secondary legislation
You will encounter delegated legislation in immigration law. Delegated legislation is not made in Parliament; instead, an Act of Parliament (also referred to as an ‘enabling’ or ‘parent’ Act) delegates clearly defined law-making powers to another person or organisation. It is also known as ‘secondary legislation’ or ‘subordinate legislation’, and the three terms are used interchangeably. (Acts are ‘primary legislation’.) One example of delegated legislation is the Immigration Health Charge Order 2015, which was passed under the authority provide in ss 38 and 74(k) of the Immigration Act 2014.
Delegated legislation exists because Parliament does not have the time or expertise to pass detailed primary legislation on every matter that needs to be regulated by law. It is regarded as having the authority of Parliament because it is made under powers delegated by Parliament. This means that it has the same legal force as its parent Act.
There are two types of secondary legislation: Statutory Instruments (SIs) and by-laws. The five forms of SI (Regulations; Rules; Orders in Council; Orders of Council; and Orders) serve different legislative purposes, Regulations being the most common. The Immigration Rules are a unique form of delegated legislation, and are discussed in the next section.
If the person or organisation that has been delegated with law-making authority goes beyond their defined powers, then the delegated legislation can be challenged.
The delegated legislation you are most likely to encounter in your Level 1 studies of immigration law includes:
- Tribunal Procedure (First-tier Tribunal) Rules 2014
- Immigration Act 2016 (Commencement Order No. 7 and Transitional Provisions) Regulations 2017