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
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:
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 breaks a legal drafting convention that can be traced to at least the Ten Commandments. The 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 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 directionless 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:
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”.[…]
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:
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:
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.