One of the fundamental principles of the rule of law is that the law “must be accessible and so far as possible intelligible, clear and predictable” (Tom Bingham, The Rule of Law, 2010). The reasons for this should be self evident. Just as it is impossible to play a sport fairly without knowing the rules, so it is impossible to live life fairly without knowing the law, or at least being able to find out what it is.
Immigration law is anything but accessible, intelligible, clear and predictable.
Accessibility: what does immigration law say?
The first issue with immigration law is finding out what it says.
Lord Neuberger, outgoing President of the Supreme Court, said to the Australian Bar Association in July 2017
One access aspect of the rule of law which is sometimes overlooked is access to the law itself, in other words access to statutes, secondary legislation and case law. It is of course a fundamental requirement of the rule of law that laws are clearly expressed and easily accessible. To put the point simply, people should know, or at least be able to find out, what the law is.
The problem is caused partly by repeated re-amendment of the underlying legislative provisions of immigration law, which are now scattered around Acts of Parliament from 1971, 1988, 1999, 2002, 2004, 2006, 2007, 2008, 2009, 2014 and 2016 all of which not only set out free standing provisions of their own but which also amend previous legislation. The older Acts have been amended and re-amended repeatedly.
The original versions are readily available at legislation.gov.uk. This is no use at all in immigration law, though. It is essential to be able to access the current, amended version. This is not available at all, or at least not reliably.
Lord Neuberger went on to say that this is a “lamentable” state of affairs:
the updating service to deal with amendments and repeals is little short of lamentable, with amendments and repeals sometimes not being recorded more than six years after the event. It should not cost much for the UK government to ensure that its legislation website is kept up-to-date, so that current legislation is freely available to everyone.
And that is before we start looking at the secondary legislation.
Migrants, lawyers and judges are now faced by rules and regulations which are, uniquely, set out in a non-sequential fashion. This breaking a legal drafting convention that can be traced to at least the Ten Commandments. These rules are so difficult to comprehend that it is hard even to describe their complexity. It is easiest to give a commonplace example.
Appendix FM of the Immigration Rules applies to family members; it is arguably the single most important section of the rules for which it is arguably most important that the rules are clear.
If a spouse or partner is applying for leave to remain in the UK, some of the rules are set out at, for example, section R-LTRP. These rules cross reference requirements set out in section E-LTRP and EX.1. How does one find these sections? The paragraphs are not set out in any numerical or alphabetical sequence. One has to swim through the alphabet soup until serendipity strikes.
Intelligible, clear and predictable: what does immigration law mean?
Even if you can find out what immigration law says about a given immigration scenario, is it possible to understand what the law means? For members of the public the answer is increasingly “no” and even lawyers and judges struggle to make sense of many provisions of immigration law.
This is a problem. First Parliamentary Counsel Richard Heaton recognised that complexity was a growing issue in modern law making in 2013:
Excessive complexity hinders economic activity, creating burdens for individuals, businesses and communities. It obstructs good government. It undermines the rule of law.
In an ever expanding series of cases senior judges have condemned the complexity of UK immigration law. For example, in the case of Pokhriyal v Secretary of State for the Home Department  EWCA Civ 1568, Jackson LJ stated that the “provisions have now achieved a degree of complexity which even the Byzantine emperors would have envied”.
Here’s a collection of other quotes through which you can cycle at leisure:
In Patel v Secretary of State for the Home Department Lord Carnwath begins by making similar point:
The search for a suitable metaphor characterises many judicial comments of this genre. In Sapkota v Secretary of State for the Home Department EWCA Civ 1320 Jackson LJ opts for the jungle:
I regret that that this area of immigration law has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions, with the result that reasonable differences of opinion (such as that between Aikens LJ and Arden LJ) are now perfectly possible. There is an acute need for simplification so that both immigrants and immigration officers may have a clearer understanding of their responsibilities and rights.
In Secretary of State for the Home Department v Khan EWCA Civ 137 Beatson LJ likened the growth of the Immigration Rules to that of a shanty town:
It is a feature of the Rules that they are constantly changing as the Secretary of State’s policy changes or because, in the words of counsel representing her in another case, she “has had to play ‘catch-up’ to address problems that had manifested themselves in the practical operation of the system” (R (Global Vision College Ltd) v Secretary of State for the Home Department  EWCA Civ 659 at ) or revealed by previous decisions. The architecture of the Rules is not the grand design of Lutyens’ Delhi or Haussmann’s Paris, but more that of the organic growth responding to the needs of the moment that is a feature of some shanty towns.
The comments of Elias LJ in R (on the application of Iqbal) v The Secretary of State for the Home Department EWCA Civ 838 are a classic of this genre:
I cannot, however, leave this judgment without observing how abstruse the law has become in this area. That is always a weakness but particularly so when so many immigrants are litigants in person with precious little, if any, understanding of English law. It is telling that in this case the Secretary of State had changed her view as to the proper interpretation of section 3C, an important provision which affects the legal rights of immigrants in numerous ways. Also it is difficult to identify precisely which laws were in force at any particular time. We were told that the website will now reveal an up to date set of rules, and that is an important and welcome development. But without analysing the relevant changes, it can be hard to discern which rules were in place at an earlier stage when particular disputed decisions were taken. The overriding impression given is that the rules are changed in a piecemeal way to deal with particular problems as and when they arise. But firefighting is not the way to produce a rational or consistent set of rules; and the process does not sit easily with the rule of law, and in particular the principle that litigants should be able to discover the laws applicable to their circumstances. There is an overwhelming need for a rationalisation and simplification of this area of law.
In Hossain & Ors v Secretary of State for the Home Department EWCA Civ 207 Beatson LJ follows a similar theme at paragraph 30:
The detail, the number of documents that have to be consulted, the number of changes in rules and policy guidance, and the difficulty advisers face in ascertaining which previous version of the rule or guidance applies and obtaining it are real obstacles to achieving predictable consistency and restoring public trust in the system, particularly in an area of law that lay people and people whose first language is not English need to understand.
Never mind litigants, how about the lawyers and judges? In Singh v Secretary of State for the Home Department  EWCA Civ 74 Underhill LJ said:
I fully recognise that the Immigration Rules, which have to deal with a wide variety of circumstances and may have as regards some issues to make very detailed provision, will never be “easy, plain and short” (to use the language of the law reformers of the Commonwealth period); and it is no doubt unrealistic to hope that every provision will be understandable by lay-people, let alone would-be immigrants. But the aim should be that the Rules should be readily understandable by ordinary lawyers and other advisers. That is not the case at present. I hope that the Secretary of State may give consideration as to how their drafting and presentation may be made more accessible.
Never mind the public, litigants, lawyers and judges, what about the Secretary of State, who actually makes the rules? In Mirza v Secretary of State for the Home Department  UKSC 63 in the Supreme Court, Lord Carnwath gave the leading judgment and said:
I have found this a troubling case. It is particularly disturbing that the Secretary of State herself has been unable to maintain a consistent view of the meaning of the relevant rules and regulations. The public, and particularly those directly affected by immigration control, are entitled to expect the legislative scheme to be underpinned by a coherent view of their meaning and the policy behind them. I agree with the concluding comments of Elias LJ (para 49) on this aspect, and the “overwhelming need” for rationalisation and simplification.
See also SI (India) v Secretary of State for the Home Department EWCA Civ 1255 and the comments of Rafferty LJ when trying to construe a decision letter made under Tier 1 (Post Study Work):
As the Senior President of Tribunals said on 16th November 2016 in evidence to the Constitution Committee of the House of Lords and repeated in dialogue during this hearing a decision letter which to the extent we read here lacks clarity and reasoning cannot withstand scrutiny by this court. It is inappropriate to expect an applicant who may not enjoy publicly funded legal representation to construe such poor drafting. Nor should the administration of justice oblige a tribunal to expend public time and money itself attempting that task. Decision letters should set out with clarity a) the facts determinative of the application, b) why the applicant’s evidence has been rejected and c) the reasons for coming to the conclusion reached.
In Khan v Secretary of State for the Home Department EWCA Civ 424 Underhill LJ expressed his sympathy for the plight of an applicant seeking to comprehend their own position:
I have great sympathy for applicants trying to find their way through the maze of immigration and asylum procedure (quite apart from the shameful complexities of the substantive law), which is all the more difficult if they are unrepresented; and I accordingly see the force of the point that an applicant ought not to be blamed for taking at face value the Secretary of State’s statement that he has no right of appeal.
It is not just in reported cases that judges have criticised the complexity of immigration law. Giving oral evidence to the Constitution Committee of the House of Lords in December 2016, Sir Ernest Ryder, the Senior President of Tribunals, explains the pace of change and the layering of complexity in immigration law:
We have had eight immigration Acts in 12 years, three EU directives and approximately—my apologies for being approximate—30 statutory instruments. The Immigration Rules themselves have been amended 97 times over the same period, which is approximately eight times a year, and are four times larger, and in a smaller typeface, than they were 10 years ago.
The Immigration Rules no longer contain all or indeed most of the policy that is to be implemented, which is of course their primary purpose. The policy is separately provided in—if I may say so—rather dense and unconsolidated guidance that one can access through the Home Office website, but that generally does not show you the previously existing guidance on the same topic, or how the guidance has changed. If you are an unwitting litigant whose first language is not English and you have no recourse to public funding, because this is an immigration case, not an asylum case, your chances of accessing any of that material and putting it together in a coherent way are negligible.
Finding, cross referencing and understanding the legal requirements is all hard enough. When the requirements are identified and understood they are sometimes incredibly arcane.
Only evidence in a certain format will be accepted for some types of application, for example. There are huge appendices to the Immigration Rules setting out “Specified Evidence” for certain types of evidence. Confusingly, these sometimes introduce additional substantive requirements not set out in the main rules.
Take a look at Appendix FM-SE for family members, for example. The main rules in Appendix FM make clear that the minimum earnings rule of £18,600 applies for spouses. It is only in the detail of Appendix FM-SE that it transpires it must be earned for a minimum period of six months for employees and up to two years for the self employed, though.
Or that if you have an online bank account, you may need to get each printed page stamped by a bank, but the bank may well refuse to do so. If a photograph is wrong, for example because of too much smile or an incorrect background, the entire application can be rejected, the (huge) fee forfeited and the applicant suddenly rendered an overstayer.
The complexity of the requirements combined with the high cost of getting it wrong — both in terms of the application fee routinely being over £1,000 and the risk of becoming an overstayer — mean that it is highly advisable to use a good lawyer. It should not be like that.
Causes and solutions
As Judge Julian Phillips said in his evidence to the House of Lords Constitution Committee:
It is very easy for us to say that we should simplify and consolidate. It is not so easy to do it.
There was a Simplification Bill drawn up between 2007 and 2009 intended to simplify and consolidate the legal framework for immigration law. The effort was eventually abandoned. There were all sorts of significant problems with the proposals, not least because the exercise was used by the government of the day as an opportunity to reduce rights and enhance executive powers. But at least effort was made.
It would be possible to resurrect this effort or to refer the matter to the Law Commission for further work. It would take time to do so, of course, but waiting longer and doing nothing hardly moves things forward and rushing would make things even worse. Even if this could eventually be achieved, though, it does not deal with the stream of secondary legislation spewing forth from the Home Office so frequently. It is often this secondary legislation that causes the most significant practical problems.
Adherence to Denis Healey’s Law of Holes (when in a hole, stop digging) would be a welcome start. Politicians could stop introducing new immigration legislation. If changes have to be made, they could be subject to proper consultation and scrutiny. Rather than new rules and forms amounting to a long shopping list of Home Office demands, the minimum necessary requirements could be identified. If resources were allocated, work could fairly easily be undertaken to simplify, consolidate and amend existing rules and regulations, potentially just a bit at a time. Sequential numbering would be a good start, for example in Appendix FM and Appendix V.
The introduction of the Points Based System in 2008 marked a turning point. The detail of the requirements for entry to the UK became almost unknowable. Brexit offers an opportunity for a reset of immigration policy and law, although it seems doubtful that the Government will be in any fit state to use it.
The trend towards tortuousness began as a result of haste and incompetence. I suspect the continued layering of new complexity on old has come to be opportunistically embraced. The net migration target drives UK immigration policy and the Government does not even want migrants to be able to understand and therefore abide by immigration law. The opacity and complexity of the rules serves as a useful barrier to many migrants and acts as a useful financial filter, as it is only those who can afford a good lawyer who can successfully navigate those rules.
The point has been reached where the decision to continue to make immigration law more complex rather than more simple has become a tool to drive down net migration.