Always a worry (but never a surprise) when Court of Appeal judges start off a judgment by saying that the case “has a tortuous procedural history”, is “highly technical” and involves “Byzantine… provisions” of immigration law. Firdaws v Secretary of State for the Home Department [2019] EWCA Civ 1310 is the latest in a long line of cases where senior judges have deprecated the complexity and obscurity of the UK immigration system. 

The core issue was whether Mr Firdaws had a right of appeal against a refusal of a human rights claim made after his leave had expired. The Home Office’s position was that Mr Firdaws did not have a right of appeal before 6 April 2015 because the decision to refuse him was not an “immigration decision” under the old version of section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. Under the old version of section 82, a refusal to grant someone leave to remain when they were already here without leave was not a decision which could be appealed to the tribunal. 

This all changed when the Immigration Act 2014 came in. It allowed appeals against refusals of human rights claim regardless of whether the person was here lawfully or not.

This change didn’t happen overnight, though. It came in phases through four commencement orders between July 2014 and April 2015.

It was the wording of the third and fourth orders which caused the problems. Mr Firdaws argued that they omitted to restrict the right of appeal in his particular circumstances, relying on a close reading of the text of the interlocking statutory instruments [you can spare us the gory details — Ed.].

Kudos to Mr Firdaws’s counsel for coming up with this extremely complex argument but a very miffed Lord Justice Irwin, dismissing the appeal, said that whilst this was the literal meaning of the provision:

This conclusion, born of the rebarbative drafting of these commencement orders, produces an absurd result. If applied, it would mean that the Appellant, having had no right of appeal before the 2014 Act, and no right of appeal during the currency of Commencement Orders 1 to 3 inclusive, acquired a right of appeal when Commencement Order 4 came into force on 6 April 2015. It would also give rise to the absurd consequence that, had this Appellant attempted an appeal earlier, he would have failed, whereas because he delayed so very long, he has acquired a right of appeal he previously lacked.

The final paragraph of the judgment reflects the sad reality of how broken our immigration system has become and how desperately wholesale reform is needed:

I cannot conclude without commenting, not for the first time, on the extreme complexity and obscurity of drafting in the field of immigration law, as exemplified by these Commencement Orders. Such drafting as this serves to conceal rather than reveal meaning. It confuses even the expert legally qualified reader, never mind those affected by the provisions. In this instance, the drafting has produced a perverse result. Such an approach is firmly to be deprecated.

It is embarrassing as a practitioner to regularly have to say to clients that there is no clear answer to their situation and they essentially need to take a gamble on something as important as their immigration status. 

To some extent, progress has been made with the Law Commission finally stepping in and producing a consultation paper on simplification of the Immigration Rules earlier this year. I led the consultation response on behalf of the Law Society of Scotland and highlighted the issues practitioners face with interpreting and applying immigration law day to day. The stark reality, though, is that any reform is likely to take years.