Just how complex is immigration law?

27.03.2014 – In answer to a related Parliamentary Question, Shailesh Vara MP, Parliamentary Under-Secretary of State for the Ministry of Justice with responsibility for the Courts and Legal Aid, responded as follows

“The immigration process is designed to be straightforward and easy to navigate. Therefore people in immigration cases should generally be able to deal with their own application and not need a lawyer”

The full written answer is available here.

Immigration lawyers who disagree with this statement perhaps leave themselves open to accusations of special pleading: the more complicated the area of law, so the argument goes, the greater the need for specialist legal advice. Without passing comment ourselves, therefore, we would refer the minister of state to recent findings made by the judiciary regarding their views on the complexity of the subject.

In November last year the Supreme Court case of Patel and others remarked as follows at [1]:

‘The Master of the Rolls…described the law in this field as “an impenetrable jungle of intertwined statutory provisions and judicial decisions”. It is difficult to disagree, although on this occasion the judiciary must share some of the blame.’

The full quote referred to from the Master of the Rolls in the Court of Appeal case of Sapkota & Anor in 2011 at [127] is as follows:

‘I regret that that this area of immigration law has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions, with the result that reasonable differences of opinion … are now perfectly possible. There is an acute need for simplification so that both immigrants and immigration officers may have a clearer understanding of their responsibilities and rights.’

More recently in the Court of Appeal in the case of Pokhriyal it was remarked at [4] that:

‘The rules governing the PBS [Points Based System] 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 (Jackson LJ)’

The courts have also grappled with the question of litigants in person presenting themselves at court, this time in the Administrative Court (part of the High Court) in the case of Singh & Ors at [6]:

‘With the retreat of legal aid, an increasing proportion of public law claimants are acting in person. Through no fault of their own, the immigration history that they are able to portray in their claim, and the issues to which that history has given rise, are often inaccurate.’

Finally, in respect of the ‘easy to navigate’ immigration system, the Upper Tribunal commented in the case of Gulshan (Article 8 – new Rules – correct approach) at [17]:

‘The case law on Article 8 is vast. With the daily burden of deciding cases Tribunal judges face an unenviable task of keeping track of its frequent twists and turns. We do not intend to add to the problem.’

It might be asked which part of the expression “straightforward and easy” the most senior judges are confused about.

11.03.2013 – One of the leading cases on the introduction of the new Immigration Rules, involving a client represented by Luqmani Thompson & Partners, has attracted widespread press coverage, including in the Law Gazette.