- BY Colin Yeo
Supreme Court criticises complexity of immigration rules (but dismisses case anyway)
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The Supreme Court has given judgment in the case of Mirza v Secretary of State for the Home Department [2016] UKSC 63. The case concerned the effect of section 3C of the Immigration Act 1971 as amended and whether it extends leave where an applicant for leave is found later to have made an invalid application. In short, it does not. The appeals were dismissed.
In the course of giving the leading and only judgment, Lord Carnwath expresses dismay at the state of immigration law:
I have found this a troubling case. It is particularly disturbing that the Secretary of State herself has been unable to maintain a consistent view of the meaning of the relevant rules and regulations. The public, and particularly those directly affected by immigration control, are entitled to expect the legislative scheme to be underpinned by a coherent view of their meaning and the policy behind them. I agree with the concluding comments of Elias LJ (para 49) on this aspect, and the “overwhelming need” for rationalisation and simplification.
It is clear too that the Court was concerned at the effect of the judgment, which means that bona fide applicants and their employers or landlords might find themselves criminalised or subject to substantial civil penalties by the accidental use of a wrong form or fee. Nevertheless, the law means what it says and the appeals had to be dismissed.
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At para 33 The SC said: “33. We must accordingly decide the present appeals within the legislation as it stands, there being no challenge to the legality or rationality of the relevant rules and regulations”. I wonder if the lawyers missed a trick there? If an invalid application will be invalid from the outset, that has rather weird implications (e.g. as outlined in para 15: “…at the point at which the application is made, neither the Secretary of State nor the applicant will know for sure whether or not their application is valid. Applications may be made in good faith and believed to be valid, yet be invalid. This may have significant adverse consequences for bona fide applicants: for example, he may have continued working whilst waiting for a response from the Home Office on the application (as section 3C leave continues the leave the person has, on the same terms) but unbeknownst to him and his employer, this constituted illegal working because in fact his application was invalid.).
With such a high powered claimant team, in depth and breadth, it would be so surprising if any stone was left turned.