Looking at a few recent cases, there seems to be a trend emerging. In the face of over-complex legislation, and poorly-handled applications at the Home Office, the courts are finding alternative routes to success for worthy applicants. No rules are flouted, and no are laws disobeyed. But in response to laws that are so complicated they don’t lead to straightforward answers, and delays and mishandlings that cause misery and waste time, the courts are being rigid in their applications of loopholes and human rights to ensure that an overburdened bureaucracy doesn’t cause unfairness.

First is the case of Ahmed v SSHD [2011] EWHC 2855 (Admin). This interprets Pankina to say the government must make substantive changes in the Immigration Rules through Parliament, not in guidance. Before, the distinction was between major and minor changes; voicing it as “requirements” and “means of proof” might set a precedent that allows the courts more scope to accept challenges when the rules become more onerous. The most likely example where this will apply is for people on old work permits looking for settlement.

The core to this is the issue of fairness. When policy is being applied it must be done so in a fair and flexible manner. The judge in Sapkota quoted Mizra, to say the Home Secretary “has duties of fairness towards individuals whose lives are on hold, and who may well be committing a criminal offence by their mere presence while they await an appealable decision.”

And in the recent case of San Michel College v SSHD [2011] EWCA Civ 1336 Pill LJ said, “Not withstanding its serious defaults, the college was entitled to a fair and adequate consideration.” He did say that the college would need to be “closely monitored”, but held the UK Border Agency to an almost pedantic interpretation of their own Action Plan – largely because of the unfair and disorganised way in which they had handled the case. HHJ Behrens was happy with the UK Border Agency’s submissions. Davis LJ agreed saying that although the college had been “given a fair chance to put its house in order” and had failed, the “decision making process was … contrary to the principles of fairness.”

This is a case where the applicant is in no way eligible for what they claim, but wins because of procedural unfairness.

In the case of Alam at the Upper Tribunal last month it was held that fairness “arguments can play a legitimate role in assessing the strength of the State’s interests, as part of the proportionality assessment.” And although the claimant had no chance of succeeding under the Immigration Rules, the judge said, “If the claimant’s Article 8 rights had been any stronger, I might well have concluded in the circumstances that his removal in consequence of the immigration decision would be disproportionate.”

Although Article 8 is not a way of avoiding primary legislation or the Immigration Rules, judges are increasingly willing to try and establish family and private lives. No one has been given a private life for possessing a cat, but there are clear signs of the judiciary moving towards leniency in the face of confusion and unfairness from the Home Office.

The case of Oppong [2011] UKUT 00431 (IAC) held that because “visitor” and “resident” were not defined in the rules, coming here as a carer did not preclude someone from being a visitor. The policy of the UK Border Agency says, “a visitor should not normally spend more than six out of any 12 months in the UK unless they have a good reason, such as receiving private medical treatment.” There is a practice of granting multiple entry visas, and with these there is “a requirement that a person with a multiple entry visit visa does not spend more than 180 days of any one year in the United Kingdom.”

This is another case of the court enforcing the complexities of the law in favour of the migrant. Had Oppong been on a multiple entry visa her case might have turned out differently. The use of law and guidance is at the bottom of the frustration for the government here. Laws can be applied rigidly, but policies must be applied fairly – and then the courts can decide what is fair.

The case of Kisuule v SSHD [2011] EWHC 2966 (Admin) is another excellent example. Although Mr Kisuule was unable to demonstrate the necessary level of funding to succeed, because his application wasn’t properly dealt with by the Home Office there was success in his judicial review application. This means he will be able to appeal to the First Tier Tribunal. This, though, is not helpful. As the judge said, he has no hope of showing that he made a legitimate application. He was over a thousand pounds short of meeting the requirements of the Immigration Rules.

But the judge mentioned more than once that an article 8 claim might be successful.

So keen was the judge to show that there is a strong Article 8 claim that paragraphs 8 – 10 of the judgement are a description of a family and private life. Although the judge calls the decision to refuse the application “unimpeachable”, he tries to find a way of subverting it with article 8.

There is no escaping the conclusion that the lack of fair dealing on the part of the Home Office is in large part the reason for this. This is despite the fact that the correction made by the judicial review made no difference to the material aspects of the claim. However it is viewed the application is, to quote the judge, “sterile”.

In a recent Court of Appeal case – SH [2011] EWCA Civ 1284– the duty of fairness was raised again. This was in relation to being allowed to show expert evidence. As Moses LJ said, “the judge ought, in fairness, to have given this appellant an opportunity to provide countervailing expert evidence.”  Sadly the case of SH was “one of those rare cases in which the unlawful errors of procedure made no difference whatever”. But that is increasingly not the norm.

The recent decision of AS (Somalia) [2011] EWCA Civ 1319 shows the importance of the fairness principle, and the effect it can have. When someone’s asylum application is refused, and they get at least one year’s leave to remain, they can appeal the asylum decision. In this case it was held that even though the claimant had been an illegal entrant to the country, and had had their asylum application refused at that point – without leave to enter – the later granting of ILR gave them the right to appeal that decision.

The Home secretary argued that it was essentially an immigration decision; but the court held it was two decisions, one immigration, one asylum.

It was argued that Parliament hadn’t intended people to have a “second bite at the cherry” by appealing an immigration decision that was a result of the refusal of asylum, and to appeal the asylum decision.  The judge disagreed. Since there were two decisions – CW’s right to enter, and her asylum claim – there could legitimately be two appeals.

The judge agreed with the Home Secretary’s submissions that this could lead to an absurd situation. Someone whose asylum claim had been rejected, and who then stayed illegally, could, after 14 years, get ILR. They would then be able to appeal the initial asylum decision. Although this was possible, the judge said,

The fact that a straightforward reading of the words used by Parliament … is capable of producing absurd consequences in particular cases is not, in my view, a sufficient reason for placing a gloss upon those words.

Like Kisuule, there seems to be a leaning on the judge’s part. Not a bias or unfairness, but a reaction to the complications and unfairness of the system. Whilst immigration law remains so vast and changeable it is going to create much confusion and many difficulties, the “loophole” in AS being a good example.

And whilst this is so, it seems that the judiciary are going to be more than willing to play the Home Office at their own game.

Henry Oliver writes the blog for Mulberry Finch.