by Colin Yeo;
12 ‘Theresa May interview: “We’re going to give illegal migrants a really hostile reception”’, Daily Telegraph, 25 May 2012.
13 ‘Impact Assessment: Tackling Sham Marriage’, Home Office, 11 September 2013.
14 On data-sharing see Gracie Mae Bradley, ‘Care Don’t Share’, Liberty, 2018.
15 Aneurin Bevan, In Place of Fear (London: William Heinemann, 1952).
16 ‘NHS Charges for Overseas Visitors’, House of Commons Library, no. 3015, 11 October 2019.
17 ‘Health tourism: what’s the cost?’, Full Fact, 21 December 2016.
18 Memorandum of understanding between Health and Social Care Information Centre, the Home Office and the Department of Health, 29 January 2019. This has now been withdrawn.
19 ‘NHS hands over patient records to Home Office for immigration crackdown’, The Guardian, 24 January 2017.
20 ‘Home Office scraps scheme that used NHS data to track migrants’, The Guardian, 12 November 2018.
21 ‘We won! DfE are ending the nationality school census!’, Against Borders for Children, 10 April 2018.
22 ‘Immigration Offences: Trends in Legislation and Criminal and Civil Enforcement’, Migration Observatory, 12 October 2016.
23 ‘The Tories Are Risking Decades of Progress in Policing’, Huffington Post, 17 March 2016.
24 ‘Woman reports rape to police – and is arrested on immigration charges’, Politics.co.uk, 28 November 2017.
25 ‘The round-up: rough sleeper immigration raids and charity collaboration’, Corporate Watch, 7 March 2017.
26 R (Gureckis) v Secretary of State for the Home Department [2017] EWHC 3298 (Admin).
27 Diane Taylor and Mattha Busby, ‘Home Office pays religious groups to help deport rough sleepers’, The Guardian, 5 November 2019.
28 David Cameron speech, 10 October 2011, available at: https://www.gov.uk/government/speeches/prime-ministers-speech-on-immigration
29 Quoted in ‘An Inspection of the Intelligence Functions of Border Force and Immigration Enforcement’, Independent Chief Inspector of Borders and Immigration, July 2016.
30 ‘The new border guards: MP tip-offs to the Home Office escalate’, Politics.co.uk, 23 September 2019.
31 Paul Daly, ‘The “hostile environment” and the overenforcement of immigration law’, Administrative Law Matters, 23 April 2018.
32 ‘David Cameron: The prime mover behind Britain’s hostile environment, who escaped the blame’, The Independent, 8 June 2019.
33 Wendy Williams, ‘Windrush Lessons Learned Review’, 19 March 2020, p. 210.
34 ‘Evaluation of the Right to Rent scheme’, Home Office, 20 October 2015.
35 David Cameron speech, 21 May 2015, available at: https://www.gov.uk/government/speeches/pm-speech-on-immigration
36 ‘Passport Please: The impact of the Right to Rent checks on migrants and ethnic minorities in England’, Joint Council for the Welfare of Immigrants, February 2017.
37 R (on the Application of Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin).
38 Quoted in ‘The Go Home Office: how the department of Windrush could harm EU nationals next’, Prospect, 7 October 2019.
39 ‘Home Office “go home” texts sent to people with right to remain’, Daily Telegraph, 18 October 2018.
40 ‘Inspection report of hostile environment measures’, Independent Chief Inspector of Borders and Immigration, October 2016.
41 As will be discussed in Chapter 12, before the British Nationality Act 1981 there was no such thing as a ‘British citizen’, and as such, only those known as ‘citizens of the United Kingdom and the colonies’.
42 Fiona Bawdon, ‘Chasing Status: if not British then what am I?’, Legal Action Group, October 2014. The names were changed for the purposes of the report, which is available at: https://www.lag.org.uk/about-us/policy/campaigns/chasing-status
43 ‘Tighter immigration laws catching out long-term legal migrants – report’, The Guardian, 15 October 2014.
44 See Amelia Gentleman, The Windrush Betrayal: Exposing the Hostile Environment (London: Guardian Faber, 2019) for the full account.
45 ‘“Shameful”: widespread outrage over man denied NHS cancer care’, The Guardian, 12 March 2018.
46 See Gentleman, The Windrush Betrayal.
47 Michael Gove, Boris Johnson, Priti Patel and Gisela Stuart, ‘Restoring public trust in immigration policy – a points-based non-discriminatory immigration system’, Vote Leave, 1 June 2016.
48 ‘Unsettled Status? Which EU Citizens are at Risk of Failing to Secure their Rights after Brexit?’, Migration Observatory, 12 April 2018.
49 ‘Asylum seeker denied cancer treatment by Home Office dies’, The Guardian, 19 September 2019.
50 See for example ‘Thousands of asylum seekers and migrants wrongly denied NHS healthcare’, The Independent, 16 April 2017, and ‘Pregnant women without legal status “too afraid to seek NHS care”’, The Guardian, 20 March 2017.
51 ‘Briefing: what is the hostile environment, where does it comes from, who does it affect?’, Free Movement, 1 May 2018.
52 ‘Inspection report of hostile environment measures’, Independent Chief Inspector of Borders and Immigration, October 2016.
53 ‘An inspection of the “Right to Rent” scheme’, Independent Chief Inspector of Borders and Immigration, March 2018.
54 Williams, ‘Windrush Lessons Learned Review’, pp. 241–2.
55 ‘Inspection report of hostile environment measures’, Independent Chief Inspector of Borders and Immigration, October 2016.
CHAPTER 4
COMPLEXITY AND COST: NO WAY TO RUN A WHELK STORE
‘The history fills me with such despair at the manner in which the system operates that the preservation of my equanimity probably demands that I should ignore it, but I steel myself to give a summary at least … I ask, rhetorically, is this the way to run a whelk store?’
Lord Justice Ward1
The byzantine complexity of the UK’s immigration law has become legendary. It is good for business for immigration lawyers like me; not only migrants but also their families, employers, universities and landlords all now need our help. Yet it is a terrible way to run a country and it can lead to slight and innocent mistakes that may cause dire consequences. Even lawyers and judges – those of us who are the most initiated in the ways of the law – have repeatedly struggled to understand and interpret sloppily drafted and continually amended laws, leading to widespread calls for reform.
One of the greatest judges of modern times and senior law lord Tom Bingham wrote that one of the fundamental principles of the rule of law is that it ‘must be accessible and so far as possible intelligible, clear and predictable’.2 The reasons for this should be self-evident. Just as it is impossible to play a sport fairly without knowing the rules, so too it is impossible to live life fairly without knowing the law, or at least being able to find out what it is should you wish to do so. But immigration law is anything but accessible, intelligible, clear and predictable. Nicholas Easterman put it characteristically bluntly in a set of decidedly unofficial comments at a Bar Council event in 2017. ‘Immigration law is a total nightmare,’ said the full-time immigration judge. ‘I don’t suppose the judges know any more about it than the appellants who come before them.’3
HOW MUCH IMMIGRATION LAW IS THERE?
First of all, immigration law is voluminous. There is a lot of it. It consists of several layers and each layer is packed with various different laws, each doing different things. Indeed, the sheer weight of paper required to print it all out would make immigration law inherently hard to get to grips with to begin with, even if it was all beautifully and clearly drafted. Which it is not – as we shall see in a moment.
At the top of the pile there is a lot of relevant international law. The Refugee Convention, the European Convention on Human Rights, trafficking and statelessness conventions, EU law and various intern
ational trade agreements all have an impact on the rights of migrants. All of these international legal instruments have been interpreted in various different court cases around the world and it is possible that any number of these might potentially have relevance elsewhere, because judges in different counties like to try to follow the same approach as one another for laws that apply in different jurisdictions.
Next, there are the Acts of Parliament, or what lawyers call primary legislation at a national level. There are a lot of these as well, with Acts of Parliament from 1971, 1988, 1999, 2002, 2004, 2006, 2007, 2008, 2009, 2014 and 2016 all still being relevant today. There are also other bits of legislation that are not mainly concerned with immigration, but which nevertheless have an impact on immigration cases, like the Crime and Courts Act 2013. All of these pieces of legislation are substantial. The Immigration Act 2016 alone is 234 pages long, featuring nine parts, ninety-six different sections and fifteen schedules. The Immigration Act 2014 is 137 pages long, with seven parts, seventy-seven sections and nine schedules. The Borders, Citizenship and Immigration Act 2009 is fifty-five pages long, has four parts, fifty-nine sections and, mercifully, just one schedule. But you get the picture. There is a lot of law.
That is barely the start of it, though. Below the primary legislation lies secondary legislation. This consists of regulations, rules, orders and statutory instruments, all of which are drawn up by civil servants and made law by ministerial fiat under powers delegated to ministers by the main Acts of Parliament. In 2018 alone, there were seventeen pieces of full secondary legislation with the word ‘immigration’ in the title, from the Immigration (Health Charge) (Amendment) Order 2018 to the Immigration (Provision of Physical Data) (Amendment) (EU Exit) Regulations 2018. This was fairly typical, if a little on the low side, as there had been eighteen such statutory instruments in 2017, twenty-three in 2016 and twenty-five in 2015. And this does not include changes to the main set of rules governing entitlement to a visa, known simply as the Immigration Rules. The current set of these rules was introduced in 1994 and at that time ran to some eighty pages. Today, the same document weighs in at over 1,000 pages. In fact, a 2018 study by journalists at The Guardian found that there had been 5,700 changes since 2010 and that the rules had more than doubled in size in that time.4
It gets worse, of course. The Immigration Rules do not contain all or indeed most of the policy that is to be implemented by officials on the ground. The policy is separately set out in – if I may say so – rather dense and diffuse guidance on the Home Office website. There are thousands upon thousands of pages of it. There are the ‘Immigration Directorate Instructions’, the ‘Immigration Enforcement General Instructions’, the ‘Nationality Guidance’, the ‘Modernised Guidance’ and plenty more. Some of it sets out legal and procedural rights. For example, it is far from unknown for immigration officials to cut a few corners when making the arrangements to remove a migrant on a particular flight; I have myself had to make weekend telephone calls to High Court judges for injunctions preventing such removals. The process officials are supposed to follow if there is a legal challenge is set out in a part of the ‘Immigration Enforcement General Instructions’ called ‘Returns Preparation’, in a section called ‘Judicial Reviews and Injunctions’, at the time of writing in its nineteenth version. That document is sixty pages long, if you can find it.
AS AMENDED
As well as there being an awful lot of immigration law, and perhaps because of this, it is also sometimes virtually impossible to find the current, latest version of any given regulation. Lord Neuberger, former president of the Supreme Court, told 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.5
The problem is caused partly by repeated amendment, re-amendment and further amendment of those amendments for all these Acts of Parliament, statutory instruments and sets of rules. This is a particular problem in immigration law because politicians have passed so much of it, seemingly in the belief that this will somehow reassure rather than alarm the public. All of the various Immigration Acts not only set out new free-standing provisions of their own but also amend the provisions in previous Acts of Parliament. It is like trying to match an old black-and-white infant school photo with a live adult; the original versions of the Acts are almost unrecognisable compared to the modern, more mature iterations.
The original Acts of Parliament are readily available online at the website legislation.gov.uk. But this is no use at all in immigration law. It is essential to be able to access the current, amended versions of the law and these are not always available – or at least not reliably. Lord Neuberger, in his 2017 speech, went on to say that the government’s updating service was ‘lamentable’ and that 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’. Things have improved somewhat since 2017 but there has always been a delay in adding new changes, and at the time of writing key sets of regulations remain out of date on the government website, meaning there is no practical way for citizens or migrants to work out what the law affecting them actually says. As a practising lawyer, it is vital that my advice is accurate and correct; my clients would rightly be rather unimpressed if I made a legal mistake. I personally feel unable to trust the government website, instead making use of an expensive private service from one of the major legal publishing houses.
BEYOND MORTAL COMPREHENSION
Even if you can work out which of the myriad laws is the right one to look at, and you are then able to find the latest amended version, good luck working out what it means. Specialist lawyers and judges alike struggle to make sense of the many provisions of immigration law. They are badly written, the words are ambiguous, different laws contradict one another and the structure is sometimes nonsensical. And, most bafflingly of all, some of the most important sections of the Immigration Rules are set out in a non-sequential structure. Let me try to explain how preposterous this is; but for me to do so, you need to step into my world for a moment.
Let us take look at Appendix FM of the Immigration Rules, which sets out the visa requirements for the family members of British citizens. It is arguably the single most important part of the Immigration Rules and it is vital that the guidelines are clear. But it is here of all places that the civil servants drafting the rules decided to abandon a practice dating back at the very least to the Ten Commandments. Numerical sequencing was good enough for God but not for the Home Office, apparently. The appendix begins not with paragraph number one but with GEN.1.1. Logically enough, this is followed by GEN.1.2 and so on. But then, after GEN.3.2, we reach paragraph EC-P.1.1. The next paragraph is not EC-P.1.2 but rather S-EC.1.1. and continues in sequence all the way up to S-EC.3.2. After that comes E-ECP.1.1 and so on, through an interminable jumble of letters apparently generated by a toddler hitting a keyboard repeatedly and at random: R-LTRP, S-LTR, E-LTRP and more. This is all incomprehensible enough, you might think. But the real problem comes when you notice that one paragraph often cross references another. R-LTRP.1.1 says, amongst many, many other things, that one of the requirements for limited leave to remain in the UK as a partner is that ‘the applicant meets the requirements of paragraphs E-LTRP.1.2-1.12. and E-LTRP.2.1-2.2’. But how will you find out what these other paragraphs say when there is no numerical or alphabetical sequence? Is it forwards or backwards from where you are now? One has to swim directionless through the alphabet soup until serendipity strikes.
Even if you can decipher this up-ended Scrabble board, it turns out that the rules in Appendix FM are secretly supplemented by equally important and mandatory requ
irements elsewhere. It is a system that puts Kafka to shame. Immigration lawyers know this from experience, and if they look hard enough, because paragraph GEN.1.4. sort of hints at it. The chances of a first-time reader spotting and understanding this, though, are basically zero. To put it as simply as possible, Paragraph E-ECP.3.1 of Appendix FM says that an applicant ‘must provide specified evidence, from the sources listed in paragraph E-ECP.3.2., of a specified gross annual income of at least £18,600’. But, unless you read the whole, interminable document from the start, how are you supposed to know that the words ‘specified evidence’ are in fact an oblique reference to a completely different appendix, Appendix FM-SE, where a whole new set of mandatory requirements are imposed? This includes the rule that the earnings must date back for a continuous period of at least six months and that only certain documents in a certain format can be used as evidence. Electronic bank statements can only be used, for example, if ‘accompanied by a letter from the bank on its headed stationery confirming that the documents are authentic or which bear the official stamp of the issuing bank on every page’. Many bank branches, however, refuse to provide such a letter or stamp because it is an unusual request and they are concerned that once out of their sight the documents could be tampered with.
You don’t just need to take my word for it. The judges are also unimpressed. I keep a little collection of judicial bon mots complaining about how awful immigration law is and will share with you just a few examples. If we start at the top and work down, Lord Sumption, considered by some the finest legal mind of his generation and appointed directly as one of the twelve judges of the United Kingdom’s Supreme Court, has said that the Immigration Act 1971 ‘has not aged well’ and is ‘ill-adapted to the mounting scale and complexity of the problems associated with immigration control’.6 Other judges have hit upon various metaphors to try to convey the complexity they are faced with in immigration cases. Lord Justice Jackson in one case suggested that the ‘provisions have now achieved a degree of complexity which even the Byzantine emperors would have envied’.7 In another he compared immigration law to ‘an impenetrable jungle of intertwined statutory provisions and judicial decisions’.8 Lord Justice Beatson plumped to use the urban environment for his description: ‘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.’9 Similarly, Lord Justice Underhill has said that he has ‘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’.10 In a later case his metaphor was more graphic: ‘The web of Rules and Guidance has become so tangled’, he wrote, ‘that even the spider has difficulty controlling it.’11