Judicial Humour - Complex Points-Based System - Byztantine Emperors

08 January 2017

Judges in the higher courts very occasionally indulge in humour. When it happens it is highly prized because of its rarity value.

A few years ago Lord Justice Jackson, sitting in the Court of Appeal in a case called "Pokhriyal", said: "Both appellants came to the UK as Tier 4 (general) students under the Points Based System ("PBS"). 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."

We have not been able to ascertain whether the Byzantine Emperors ever did publish any immigration rules or points-based system, but LJ Jackson’s sardonic observations were to the point, and this subject has been the subject of comments by a number of senior judges over the last few years.

In a later case called "Hossain", also at the Court of Appeal, Lord Justice Beatson - with less humour but more specifics - said of the points-based system: "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."

This no doubt rings very true with many immigration practitioners. As LJ Beatson indicated, the complexity and sometimes obscurely phrased character of the points-based system is often challenging for lawyers, let alone the "lay people".

In yet another, very recent, Court of Appeal case about the points-based system called "SI India", published in December 2016, Lady Justice Rafferty laconically explained such a situation. Perhaps she was not intending to be amusing, but anyone who has ever struggled with Home Office decision letters may find themselves sniggering. She said: "In our view a reader of the decision letter would struggle to understand [the relevant parts of the decision].... Three judges and one barrister certainly did. That is enough to dispose of this appeal, which we allow."

Why is the points-based system (ie Tiers 1, 2 and 5 working/investment visas and Tier 4 study visas) so complicated? When it was introduced a few years ago it was, because of its supposedly highly prescriptive nature, already very dense, and it replaced rules and provisions which were far simpler. But since then the complexity has grown in a sort of organic way, in an attempt to deal with unanticipated problems: the Home Office discovered that the points-based system’s "tick box" approach was not as prescriptive as it needed to be and did not always work very well in practice, and consequently more rules had to be added. The connotations of the word "organic" seem to be generally good, but not necessarily in this case.

The Tier 4 Student route, as criticised by LJ Jackson, is a very interesting - if that is the right word - instance. Ancient immigration practitioners (and possibly some ancient students) will remember the old Paragraph 57, a delightfully short, pithy immigration rule, taking up no more than two-thirds of a page, which explained the requirements for non-EEA students to come and study in the UK. Of course, litigation arose from this rule - as it always does - but life was relatively simple.

But these days applicants and lawyers have to engage with voluminous Tier 4 Student immigration rules, spreading over many pages, and then they find themselves cross-referenced to the relevant parts of the Appendices, which have to be accessed in a different place within the rules and which must be obeyed just as much as the actual rules themselves, on pain of visa refusal. And if the reader becomes disenchanted with reading the rules and appendices they can always turn to the 97-page Tier 4 Policy Guidance, a mighty Home Office publication.

And in the Tier 1 Entrepreneur scheme the Home Office has now achieved - to thoroughly mix the metaphors - a kind of Byzantine Nirvana of self-immolating complexity, where the immigration practitioner on occasion has to carefully navigate their client between the Scylla and Charybdis of the requirements of one rule that seem to contradict the requirements of another rule.

And the outlook is not encouraging. Despite the judicial criticism, Home Secretaries on the whole seem to like the points-based system, because they believe that it provides a good method of managing immigration; although they wobble on the subject occasionally, particularly as to whether Europeans might at some point in the future become subject to it. But at any rate it is safe to say that the points-based system is here to stay for the foreseeable future, and we will all have to put up with it.

It is also safe to suggest that anybody thinking of applying for a visa under the points-based system might want to consider obtaining professional assistance from a lawyer and, bearing in mind all the above, might also want to ensure that such a lawyer has good experience in the relevant area.

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