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A broken system? More Immigration Rule changes

29 October 2014 Immigration

As sure as night follows day, the Home Office has again issued changes to the Immigration Rules. Even just reviewing page 1 of this document demonstrates the sheer scale of changes and the frequency with which they are promulgated. Each Statement of Changes contains a promise to review the changes after 5 years and for the Home Office to produce a report indicating:

"whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation."

I have never seen a report in this regard, though I haven't really looked. It is fascinating though that the report requires to address whether objectives could be met with less regulation. I wonder if Home Office policy makers pay much attention to this, since there can be no doubt that their burning desire is to micromanage and legislate for every conceivable permutation of fact and circumstance through the rules, rather than simply have broad rules and evidence based decisions by experienced caseworkers (which used to be the case).

In time someone at Home Office HQ might realise that specifying every single little aspect of the rules is really counter-productive. It seems that a desire to be 'tough' on immigration is linked with a desire to mandate and control the operation of rules to a microscopic degree, as if that will bring finality to their decision making. It is flawed logic, since the complexity is now so great that it impossible for any official to work without making an error at some point.

In a holistic evidence based consideration against broad principles of qualification for a visa, small mistakes by a decision maker will not be fatal to a decision, they are part of a whole and if the consideration is reached on a reasonable assessment of the evidence and circumstances then it would be easily sustained. By making everything a specific requirement regulated to the nth degree, the very nature of regulation means that if an official fails to properly reference and implement the regulation itself the decision then becomes open to challenge in law.

At present the Home Office is engaged in a constant flux of passing complex rules, realising they don't do the job properly, passing more complex amendments, all with different implementation dates and transitional provisions and all relying on the inherent ambiguity of language. Of course the difficulty is that essentially these rules are dealing with people. People's circumstances are always distinct, there are always exceptions and idiosyncrasies that negates a hard application of rules.

There have been lots of news reports recently and comments that suggest the immigration system is broken. I do not think you need to look much further than the constant amendment of the rules that govern it to see this. Read any case on the immigration rules before a court and it is clear that the complexity now dwarfs any comparable area of law. This cannot be right.

In the explanatory statement to the rules the language used is revealing, many of the changes are intended to 'clarify' some aspect of interpretation. What this means in truth is that some poor individuals have likely be subject to a distressing period of litigation, uncertainty or remonstrance with the Home Office over an ambiguous or unfair provision. Behind such 'clarifications' is usually misery for people affected until the law changes.

The explanatory memorandum also deals with the implementation of administrative review as appeal rights are removed from applicants. This has been limited to Tier 4 only at this time. The memorandum contains a very interesting link to the impact assessment on the removal of appeal rights (which considers the impact on all categories, not just Tier 4).

This is a fascinating document and one part stood out particularly:

"Increase in Judicial Reviews – It is thought that the volume of judicial reviews may increase as a result of the policy changes. A judicial review is estimated to cost the Home Office between £1,500 and £2,0005 per review, this relates to average legal fees. There would also be adverse costs and damages to consider, as well as costs to MoJ but these are currently unknown. As volumes are unknown, it is not possible to quantify this impact."

This is wilful blindness by the government. The costs for judicial review, to government as a whole, are vastly higher than the figure they posit, since its disingenuous to remove Ministry of Justice costs from the figures (it's all public money) and the expenses of defeat. The estimated cost to the Home Office also seems significantly underestimated.

All of this factors into the current policy line, tighten the labyrinthine rules, and restrict an individuals ability to challenge them. Unfortunately for the Home Office, people faced with an injustice, who have perhaps put many years and thousands of pounds into life here, may not just simply go away. I suspect the costs involved in legal challenges after appeal rights are removed may be very much higher than they suspect.

Indeed the other issue is that human rights appeals will continue and what better ground of challenge in a human rights appeal than to say the rules were not originally applied properly leading to an unjustified interference in one's private life?

As current asylum backlog figures demonstrate, perhaps the government would be better to simply hire more staff and equip them to make decisions, rather than this endless tweaking and amending of the legal framework.



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