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Immigration rules - something of a disgrace - Appendix FM - EEA Regulations

12 September 2018

The Immigration Rules and Regulations are the voluminous bodies of rules that UKVI caseworkers use in their day-to-day decision-making. Not for the first time the senior judiciary have had some harsh words to say about them.

Lord Justice Irwin, a Court of Appeal judge, in a recent speech to the Professional Negligence Bar Association joined in a sort of judicial chorus that performs intermittently on this subject. His wide-ranging discussion was about complexity and obscurity in the law generally.

On the subject of the Immigration (EEA) Regulations (which are the UK Regulations which substantially govern EU immigration law), he had this to say:

"Regulations determining the rights of individuals in the immigration context may sometimes be necessarily complex, but we must ask whether they could not be drafted in a manner which makes them less obscure." As he put it elsewhere: "Complexity and obscurity are not the same thing."

His unpleasant encounter with these Regulations had come about whilst he was sitting in the Court of Appeal in a case called "Khan", in which he could not help noticing that "All are agreed that these Regulations are formidably obscure and badly drafted."

Anyway, the problem in this case was that it was difficult to work out whether some types of applicant whose applications had been refused should or should not have the right of appeal to the Immigration Tribunal. There was an element of discretion, but it was not clear how such discretion should be exercised and, as he explained in his speech, it ultimately required the Supreme Court to help untangle the appropriate legal meaning of the words "concerns an entitlement".

But when he turned to the Immigration Rules, evidently they are condemned both for complexity and obscurity.

He gives the example of Appendix FM, the main part of the Rules that deals with partner and family applications. The Home Office rule writers have tried to achieve a sort of amalgam of the Rules and human rights Article 8 principles (the right to private and family life) - a necessarily clumsy exercise because Article 8 is a much higher form of law than the Immigration Rules, and the latter cannot very effectively govern or limit the former.

The result is something confusing and not entirely meaningful and, in a fraught case where Article 8 comes into play, ultimately proportionality under Article 8 must be considered, as was always the case before Appendix FM was invented. As he put it: "The consequence is that tribunals and courts must take account of numerous often overlapping Rules which are complicated and often obscure, but then apply an over-arching principle."

We can remember when Appendix FM came into effect in 2012. A lot of lawyers asked themselves the (probably rhetorical) question: do the Home Office have proper lawyers to write their Immigration Rules? We imagine that they must do, but Appendix FM is surely a strange legal creature and many lawyers have spent many hours scratching many heads over it ever since.

And LJ Irwin went a bit deeper:

"There is room for a real effort to make language simple and to avoid cannibalistic drafting; that is to say where new or revised provision makes reference to a former provision which itself may carry reference to, or language from, a yet earlier formulation. … … Lay people find the product completely impenetrable. Non-specialist lawyers will make frequent errors. … … The Immigration Rules provide many classic examples. The Immigration Rules are, in truth, something of a disgrace."

Strong words, and highly applicable to Appendix FM. Not only was Appendix FM vastly more voluminous than the previous rules but it was not even implemented tidily. For reasons not at all clear the preceding rules were retained and the Home Office kindly produced a complicated table explaining which parts of the old rules were retained and which parts had been replaced by the new rules.

Lord Irwin diplomatically stated that "Non-specialist lawyers will make frequent errors" but he also might have pointed out that even specialist lawyers are going to have to put on their most powerful thinking caps to deal with rules of such complexity and unnecessary obscurity.

The foregoing illustrates why you might wish to engage the services of a really competent lawyer if you are seeking to grapple with immigration issues.




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