09 Mar, 2023 10:23 PM

Complexity of the Immigration Rules: Rule of Law - A Brief Analysis

Immigration Rules:

In the UK, the Immigration Rules regulate the entry into and stay in the UK of people who are subject to immigration control. The Immigration Rules are spread over different documents and are regularly updated.The Immigration Act 1971 (“the 1971 Act”), laid down the basic foundation of the existing Immigration Rules -section 3 of the 1971 Actprovides regulation of entry into and stay in the United Kingdom. Section 3(c) sets out the restrictions which may be applied to those who enter the UK:they may have restrictions put on their work or their studies;they may have conditions laid down on where they can live;they may be required to register with the police or to report to an immigration officer;they will usually be required to maintain themselves without “recourse to public funds”.

The Secretary of State for the Home Department has overall responsibility for administering the immigration system. Section 3 (2) of the 1971 Act provides:"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances;…”. Also, pursuant to paragraph 1 (3) of Schedule 2 of the 1971 Act, the Secretary of State issues instructions known as Immigration Directorate's Instructions ("IDIs") to immigration officials to guide them in their application of the rules.

How complex the Immigration Rules?

The Immigration Rules have become increasingly lengthy, complex and often difficult to follow by lawyers and judges. For example, the Immigration Rules HC395, which were introduced in 1994 and ran to 80 pages. Today the same document, after repeated amendments to immigration legislation, weighs in at over 1,000 pages.The Law Commission Simplification of the Immigration Rules: Report (HC14 Law Com No 388) noted that “it is widely acknowledged that the Rules have become overly complex and unworkable. They have quadrupled in length in the last ten years. They have been comprehensively criticised for being poorly drafted, including by senior judges.” One commentator recently described the complexity of the Rules by saying: “The rules are so difficult to comprehend that it is hard even to describe their complexity….”

It should be noted that more often than not, the complexities within the Immigration Rulesthat found to be existed arises from the point-based immigration system (PBS)which was introduced in phasebetween 2008 and 2010 to regulate immigration tothe United Kingdom from outside the European Economic Area (EEA); the changes to the rules since 2012 such as Appendix FM to the Immigration Rules and the attempted codification of Article 8 of the European Convention on Human Rights (the right to family and private life) within the Rule in line with the Supreme Court’s decision in Alvi v Secretary of State for the Home Department [2012] 1 WLR 2208.

For example, before the New Student Route was introduced earlier this year - which replaced the Tier 4 Student Visa, Paragraph 245ZX of the Immigration Rules sets the requirements for leave to remain as a Tier 4 (General) Student. Appendix A to the Immigration Rules set out the attributes which Tier 4 (general) students must possess requiring that they must have a minimum of 30 points under paragraphs 113 to 120 of Appendix A.Paragraph 115 of Appendix A provides that such a student scores 30 points for obtaining a confirmation of acceptance for studies ("CAS"). Paragraph 115A of Appendix A required the student to provide a valid CAS reference number to UKBA, not the CAS and it is the sponsor college which prepares the CAS and submits it electronically to UKBA - these requirements sound complicated indeed!

Chapter 08: Appendix FM sets out Rules for family members which applies to applications made after 9 July 2012. Under Chapter 08: appendix FM family members (immigration directorate instructions), contains 14 different guidance documents - which included Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-year routes and exceptional circumstances for 10-year routes, which often difficult to follow for lawyers - let alone migrants themselves. Also, some of the rules under Appendix FM sets out under section R-LTRP and these rules cross reference requirements set out in section E-LTRP and EX.1 (a) and (b). Moreover, the paragraphs are not set out in any numerical or alphabetical sequence. How does someone find and follow these sections from the Home Office different guidance documents?

In the case of Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568,two foreign students [(Tier 4 (general) student under the Points Based System ("PBS")] whose leave to remain in the UK has expired; they challenged the Secretary of State's decisions, it was upheld by the First-tier Tribunal and the Upper Tribunal, that their proposed further courses do not constitute academic progression from their previous studies. In that case Lord Justice Jackson at [paragraph 4] condemned the complexity in the following term: The rules governing the PBS are set out in the Immigration Rules and the appendices to those rules. These provisions have now achieved a degree of complexity which even the Byzantine Emperors would have envied.

Finally, I would like to refer Paragraph 276B of the Rules which sets out requirements for people who have 10 years of continuous lawful residence and eligibility to apply for indefinite leave to remain (“ILR”). Paragraph 276A addressed the situations where a person overstays - this is deemed unlawful residence and could potentially break a period of continuous lawful residence. However, Paragraph 39E of the rules provides exceptions to overstaying as“cure” for anyperiods of overstaying.

In the case of Hoque & Ors v SSHD [2020] EWCA Civ 1357, the Court of Appeal consideredthe correct interpretation of paragraph 276B of the Rules and in particular the two circumstances in which periods of overstaying may be disregarded under 276B(v). Lord Justice Underhill [at para.  ..] it was held that: “It is unfortunately not uncommon for tribunals and courts to have to grapple with provisions of the Immigration Rules which are confusingly drafted, but it is our job to try to ascertain what the drafter intended to achieve and give effect to it so far as possible………”

Rule of law and access to justice:

It is a basic principle of the rule of law that applicants should understand the requirements they need to fulfil. The law “must be accessible and so far as possible intelligible, clear and predictable” [T Bingham, The Rule of Law (2010) p 37]. Access to justice under common law is an important cornerstone under rule of law but access to justice is denied if migrants is unable to access the court to represent their case. In the case ofR ((1) FB (Afghanistan) (2) Medical Justice) v Secretary of State for the Home Department [2020] EWCA Civ 1338], Lord Justice Hickinbottom was held [at para 91] that:

The importance of the rule of law, and the role of access to justice in maintaining the rule of law, was recently considered by Lord Reed JSC (with whom the rest of the Supreme Court agreed) in R (UNISON) v Lord Chancellor [2017] UKSC 51[2017] 3 WLR 409 at [68]:

"At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade…".

Also, the public law principles stipulate that public bodies to act lawfully, rationally, fairly and in compliance with the Human Rights Act 1998. The public bodies, i.e., central and local government or a court and tribunal exercise their statutory powers and duties in accordance with the laws for the purpose of good administration. The underlying complexity of the Immigration Rules is against the rule of law and is arguably against the public law principles.Simplified and more easily accessible Rules offer increased legal certainty and transparency for applicants. On the other hand, the complexity within the Immigration Rules, often leads to an unlawful or legally flawed decisions as its risk lengthy litigation, administrative reviews, appeals and judicial reviews with unnecessary costs implications for both the applicants and the Home Office. “A simpler and more accessible immigration system builds trust, increases public confidence and brings reputational benefit to the UK internationally” [Law Com No 388, HC14].

Finally, in the recent case of Robinson v Secretary of State for the Home Department [2019] UKSC 11 in the Supreme Court, Lord Lloyd-Jones said: “As will be apparent from this judgment, the structure of both primary and secondary legislation in this field has reached such a degree of complexity that there is an urgent need to make the law and procedure clear and comprehensible.”

Therefore, it is import to have a simplified and easily accessible Immigration Rules and Immigration Directorate Instructions for lawyers, judges and migrants to follow. In this regard, the Law Commission Simplification of the Immigration Rules: Report published on 13 January 2020 is the right way forward.

Khaled Noor is a Barrister-at-Law (N/P) and Solicitor. He is the principal solicitor of Blackstones Solicitors specialising immigration, family and property laws.

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