Lord Justice Irwin has labelled the Immigration Rules a “disgrace” in the latest example of judicial disquiet over the complexity and poor drafting of the bedrock immigration regulations.

Speaking earlier this week, the Court of Appeal judge hit out at “obscurity” and “cannibalistic drafting” in legislation, of which he said the Rules “provide many classic examples”. The end result is a product that lay people find “completely impenetrable”. Irwin concluded that:

The Immigration Rules are, in truth, something of a disgrace.

Irwin, who was first appointed to the judiciary in 2006, noted that the work of the parliamentary and government lawyers who draft laws “can be rendered more difficult where political objectives, perhaps particularly populist political objectives, come into play”.

In a speech entitled “Complexity and obscurity in the law”, Irwin also used the EEA Regulations as an example of bad practice. They contain “at least three different bases on which the Secretary of State could refuse an application” from an extended family member, the judge pointed out, “though it was often unclear how these interrelated”. Irwin was part of the Court of Appeal bench that decided Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755 (reported on Free Movement in this post), from which that example comes. He continued:

Regulations determining the rights of individuals in the immigration context may sometimes be necessarily complex, but we must ask whether they could not be drafted in a manner which makes them less obscure.

The speech also pointed to the complexity of Article 8 claims and expressed concern about the attempt at prescribed interpretation in section 54 of the Immigration Asylum and Nationality Act 2006.

Irwin is hardly out on a limb. In January, Lord Justice Underhill wrote in a judgment that “the web of Rules and Guidance has become so tangled that even the spider has difficulty controlling it” (the spider in this analogy being the Home Office). Senior judges have been expressing profound dissatisfaction with the state of the Rules for many years. Colin has documented some examples in this post: How complex are the UK immigration rules and is this a problem?

Amber Rudd revealed in October 2017 that the Law Commission had been set the task of cleaning up the Rules. The Commission says that “the Rules are widely criticised for being long, complex, and difficult to use” and its project aims to “redraft the Rules to make them simpler and more accessible to the user”.

Sir Stephen Irwin, 65, was educated in Belfast and Cambridge. At the bar he specialised in clinical negligence, enquiries and scientific tort cases and was a founder member of Doughty Street Chambers. Before joining the Court of Appeal, he was Chair of the Special Immigration Appeals Commission. His speech was delivered as the Peter Taylor Memorial Lecture to the Professional Negligence Bar Association on 17 April.