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Court of Appeal condemns complexity of Points Based System


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The Court of Appeal condemns the complexity of the Points Based System in the case of Hossain & Ors v Secretary of State for the Home Department [2015] EWCA Civ 207. Lord Justice Beatson says at paragraph 30:

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 follows on from very strong words in previous Court of Appeal cases. In Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568, Jackson LJ stated that the “provisions have now achieved a degree of complexity which even the Byzantine emperors would have envied”. In Singh v Secretary of State for the Home Department [2015] EWCA Civ 74 Underhill LJ said:

I fully recognise that the Immigration Rules, which have to deal with a wide variety of circumstances and may have as regards some issues to make very detailed provision, will never be “easy, plain and short” (to use the language of the law reformers of the Commonwealth period); and it is no doubt unrealistic to hope that every provision will be understandable by lay-people, let alone would-be immigrants. But the aim should be that the Rules should be readily understandable by ordinary lawyers and other advisers. That is not the case at present. I hope that the Secretary of State may give consideration as to how their drafting and presentation may be made more accessible.

As discussed here on the blog, Underhill LJ went on to criticise the lack of accessibility of the various versions of the rules and urged the Home Office to make a proper archive available, ending by commenting “I pity whoever has to undertake the task”.

The outcome of the Hossain case is that the Court of Appeal follows the earlier cases of Nasim and others (Raju: reasons not to follow?) [2013] UKUT 00610 (IAC) and Rasheed and others v Secretary of State for the Home Department [2014] EWCA Civ 1493, holding that despite potentially ambiguous wording on the application form itself it is not possible to rely on a qualification formally awarded after the date of application as a Tier 1 (Post-Study Work) Migrant. This has been a significant problem for a number of highly skilled migrants because some universities only formally award degrees at set times of year that do not coincide with a migrant’s expiry of leave and need to make an extension application.

Tough luck, says the Home Office, Upper Tribunal and the Court of Appeal.

Will the tribunal and courts continue to offer no relief to those caught out by the increasingly arcane complexity of the Points Based System? We may find out when the Supreme Court hears the appeal in Mandalia.

UPDATE: No such luck in Mandalia as it turns out.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.