Court of Appeal has finally had it with the PBS

[vinny]

I talked to some immigration lawyers in the meanwhile, but they are giving misleading information, their opinions don't match with each other.

The Rules are too complex and possibly incomplete. Even Ministers were caught out.

Court of Appeal has finally had it with the Points Based System >

Discussion and conclusion

17. The SSHD's decision is set out in a letter of 5th November 2013. Although this is a PBS case, there are five pages of fairly dense typescript which recite the standard relevant paragraphs. One page shows in tabular form the points awarded. The reasoning supporting the decision is confined to two sentences in a box on page three. The first sentence does no more than recite the policy that parental sponsorship is not permitted for Tier 1 applications. It is silent as to any reasoning for the decision maker's reliance on that policy and in particular does not apply the policy to the evidence. The Applicant, and the tribunal, are left to navigate to their own conclusions about whether the evidence submitted is rejected and if so why. The second sentence - "parental sponsorship …is not permitted…in addition the evidence submitted is post-dated the date you made the application…" - reads as if the decision maker considered the additional evidence and rejected it as not submitted at the time the application was made. Both members of this court so construed it. So too did the Upper Tribunal judge and the Applicant. We were told in submissions that we are all wrong and that the sentence intended to convey that some of the additional evidence relates to a time period which is irrelevant.

18. As the Senior President of Tribunals said on 16th November 2016 in evidence to the Constitution Committee of the House of Lords and repeated in dialogue during this hearing a decision letter which to the extent we read here lacks clarity and reasoning cannot withstand scrutiny by this court. It is inappropriate to expect an applicant who may not enjoy publicly funded legal representation to construe such poor drafting. Nor should the administration of justice oblige a tribunal to expend public time and money itself attempting that task. Decision letters should set out with clarity a) the facts determinative of the application, b) why the applicant's evidence has been rejected and c) the reasons for coming to the conclusion reached.

19. In our view a reader of the decision letter would struggle to understand b) and c) above. Three judges and one barrister certainly did. That is enough to dispose of this appeal, which we allow.

20. We give permission for this judgment to be reported.

[helpingperson]

Vinny,

Thank you, in simple words what impact this will have?

I have read it twice but not sure.

[Petaltop]

Vinny,

Thank you, in simple words what impact this will have?

I have read it twice but not sure.

"The direct precedent value of the case is therefore little, unless it does represent a turning point." is what is said in that article, under the quote vinny used. They said this case was about the now long closed, Tier 1 PSW visa.

[vinny]

I think that the judgment is the latest in line to reflect a condemnation of the incomprehensibility of the Immigration rules. Let's hope that it does represent a turning point to make the rules simpler. Else, there may be more such cases.

[vinny]

Another example from the Supreme Court.

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.

[vinny]

Home Secretary Amber Rudd announces review of Immigration Rules.

Sarah Jones: Final question from me. Going back to immigration, when you were talking about the new European system for EU citizens, you said that you wanted it to be completely different in terms of user friendliness, and that you were in the business of making it as simple as possible. On behalf of all my constituents who are trying to get visa applications done and having to pay hundreds of pounds to solicitors just to work out which form they should fill in, I ask that you apply the same simple approach to the rest of the immigration system because it is hugely complex and people are spending lots of money and lots of time and lots of stress trying to get through the system.

Amber Rudd: I completely agree with you. I have already requested the Law Commission to review our immigration laws with a view to simplifying them. There were 20,000 different pieces of regulation for non-EU regulations and we have now got them down to 4,000. It is incredibly important—I share your frustration—and this is a personal mission of mine to make sure that we simplify the immigration so that your constituents and mine can use it in a more user-friendly way and that it can just be clearer for people where they can and where they can’t apply.

Sarah Jones: Thank you.

[vinny]

The spider’s web of the Points Based System.

[The Station Agent]

Amen to that.

[vinny]

Speech by Lord Justice Irwin: Complexity and Obscurity in the Law, and how we might mitigate them.

[vinny]

Law Commission calls for total rewrite of Immigration Rules > report

[vinny]

Office of the Parliamentary Counsel drafting guidance

Simplification of the immigration rules

Simplifying the Immigration Rules - Report

Simplifying the Immigration Rules: a response

[vinny]

Unfortunately, the overly complex Appendix EU definitions seems to violate a drafting guidance:

Don’t make a definition do too much

Moreover, it seems to be a wrong approach to simplifying the Immigration Rules?

[vinny]

I think they failed to note how programmers simplify their programs by using subroutines or functions.

Examples of problems:
Muddle between validity and eligibility. IMHO, validity should be category independent.
PBS dependants and Long residence lead ILR holder.
Removed some routes.

[vinny]

The problem with “simplifying” immigration law