Lord Justice Irwin has branded the Immigration Rules as “something of a disgrace” and “completely impenetrable” to a layperson. The Immigration Rules are widely criticized for being long, complex and difficult to understand.
Speaking at the Professional Negligence Bar Association on 17 April, Lord Justice Irwin hit out at the “obscurity” and “cannibalistic drafting” in legislation, of which the Immigration Rules provide a classic example. Lord Justice Irwin presented the Immigration (EEA Nationals) Regulations 2006 as a specific example of where “the drafting can be rendered more difficult where political objectives […] come into play”. He highlighted that the EEA Regulations contain at least three different bases on which the SSHD could refuse an application from an extended family member although it is often unclear how these interrelated. Lord Justice Irwin is far from alone in his criticism. Senior judges have been expressing profound dissatisfaction with the state of the UK Immigration Rules for many years. Earlier this year Lord Justice Underhill stated 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). Whilst earlier this month the Law Society warned of the “grave problems in our immigration and asylum system” and ultimately called for an “immigration and asylum process that is fit for purpose”.
Change may be afoot in the future with Amber Rudd revealing in October 2017 that the Law Commission had been tasked with ‘cleaning up’ the Immigration Rules. The Law Commission has stated its aim of redrafting the Immigration Rules in an attempt to make them simpler and more accessible.
The Law Commission may also like to look at the student immigration rules, which only permit second undergraduate degrees in a restricted number of cases, which are defined as ‘academic progression’ in the Immigration Rules. With an increase in life expectancy, many students are pursuing second undergraduate degrees such as maths and law or chemistry and physics, English and law, maths and Computer science etc. Foreign students are not permitted to do this as this falls outside the definition of ‘academic progression’. When did restricting education and advancement become a goal of the respective political parties in the UK? This is detrimental to the UK economy for a number of reasons:
1) It starves UK universities of much-needed foreign student fee revenue, leading to UK domestic students having to borrow money for university fees at high interest rates, thus tying them up in debt for years after leaving university;
2) It prevents the brightest and the best pursuing their education in the UK before being groomed to become the captains of industry in their own countries;
In view of Brexit and the UK’s desire for free trade agreements to encourage trade and business from abroad, it might have occurred to those designing the policies that it may be advisable to encourage the students (mentioned in 2 above) to spend some time in the UK.
The logic of discouraging those who will in time have considerable influence over their countries’ selection of foreign advisors, the purchase of foreign services, the purchases of foreign equipment (where the UK, once a world player, is struggling for entry to those markets, or to maintain and/or expand their presence), from spending their formative years in the UK is totally illogical and defies belief. Encouraging them to experience non-UK products and services and even to feel some antipathy or even hostility towards the UK, as they are either denied the opportunity to pursue their university education in the UK or alternatively they have to uproot themselves from the UK after pursuing their secondary education in the UK because they wanted to pursue two undergraduate degrees or a Masters (or both) before commencing work, seems entirely counter-productive. We have encountered cases like this where bright students have moved to the US, benefiting those US universities with their intellect and fees.
This leads one to the inevitable conclusion that both parties waive the Changes to The Immigration Rules through the House of Commons without reading them, as no one from either party appears to have raised strong objections to these rules or objected to the obvious detrimental effect they may cause. Even after articles like the one cited below, the Immigration rule regarding academic progression remains in force, whist domestic students suffer from penalty interest rates on student loans and universities cry out for funding or increases in the fees paid by domestic students (or both!) The scaremongering about foreign students overstaying in the UK has been proved to be categorically wrong by statistics provided by the Office of National Statistics, as summarized by FT.
There are a number of cases where the rules can and must be clarified and updated, as well as radically changed.
Gherson are experts in dealing with UK immigration matters. Should you wish to speak to a member of our team please do not hesitate to contact us.
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Principal and founder of Gherson Solicitors