When publishing a landmark report on overhauling the civil justice system in the United Kingdom Lord Woolf stated that ‘in order to ensure access to justice’ the system should, amongst other things, ‘be understandable to those who use it’. There has been growing concern that the manner and speed in which Immigration law has been changed has put it beyond the comprehension of many of those who are governed by it; not just applicants who must comply with it but members of the judiciary who are adjudicating upon it.
In December 2012 Lord Lester of Herne Hill a renowned Barrister sitting in the House of Lords stated that “My wife is an immigration and asylum judge and… she and her colleagues… find themselves in a quite terrible situation in trying to understand the Kafkaesque material that flows out of the Home Office.” He described the law governing immigration as “a network of regulations that it is quite impossible for ordinary men and women, including Members of this House, to understand”. Lord Taylor acknowledged in response that “no area is more complex than the whole business of the Immigration Rules and the procedures surrounding them”.
Since these calls for reform, the parliamentary criticism has been echoed by the judiciary; in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 Jackson L.J. stated that the “provisions have now achieved a degree of complexity which even the Byzantine Emperors would have envied”. In the recent case of Singh v Secretary of State for the Home Department [2015] EWCA Civ 74 Underhill L.J. explained that there was a problem with the complexity of the rules, and they were not readily “understandable by ordinary lawyers and other advisers”. The drafting was described as “rebarbative”.
Unfortunately, this criticism appears to have fallen on deaf ears. The most recent Statement of Changes released on 26 February 2015 stretches to 243 pages. The President of ILPA, Alison Harvey, stated that, Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (SI 2015/371 (C.18)), which was released on the same date “could not have been more confusingly drafted”. Despite calls from all quarters to consolidate and simplify the legislation, the Secretary of State is making the regime of immigration control increasingly inaccessible to those using or reforming it.