A recently reported decision from the Court of Appeal (“Hossain”) concerned the now-abolished Tier 1 Post-Study Work visa scheme. The unfortunate main appellant Mr Hossain had fallen foul of the detail of the Immigration Rules when he made his application and his appeal to the Court of Appeal was unsuccessful. The Court said that the rules meant what they said and that Mr Hossain (or indeed his lawyers) could not succeed by trying to find an elaborate route around them.
It is, as the Court remarked, a well-established principle of the points-based system (of which the Tier 1 Post-Study Work visa scheme used to be a part) that the rules are generally cut-and-dried, and either an applicant meets the requirements or he doesn’t.
But, in passing, the Court criticised the complexity and frequently-changing character of the Immigration Rules and it alluded to a previous Court of Appeal decision (“Pokhriyal”) in which Lord Justice Jackson had caused some amusement by saying that “provisions have now achieved a degree of complexity which even the Byzantine emperors would have envied”.
As the Court (specifically Lord Justice Beatson) said in the Hossain case, not only are the points-based system UK Immigration Rules very detailed, complex and frequently-changing, but the policy guidance published by the Home Office also changes frequently. It is, he says, very difficult for applicants and their lawyers to keep up.
As he put it: “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.”
He is certainly not wrong about this. As soon as the points-based system was introduced in 2008 it was evident that, whatever else it was going to be, it was going to be complicated, and it has become progressively more complicated as time has gone by. Immigration practitioners (and applicants who are not represented) typically have to wade through pages and pages of rules and guidance to try and work out what they need to do and what they need to submit with the application. The language is dense and complex, frequently cross-references itself, and occasionally cannot be rendered into any clear meaning.
This “Byzantine” character, as Jackson LJ put it, inevitably makes the possibility of error and failure far higher than it was previously, simply because the rules are so difficult to understand. We are not sure what the solution to this problem is; whenever the Home Secretary and her officials try to “improve” anything it just gets more complicated and, so far, she has been impervious to various criticisms from the courts about this. Whereas the higher courts can strike down Immigration Rules if they consider them to be irrational, it seems highly unlikely that they will ever strike them down because they are fiendishly complex.