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

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

The Points Based System is notoriously complex and indecipherable. Initially I believe this was simply incompetence on the part of Home Office officials unable to communicate in plain English and ill equipped to design to and then adapt to the constantly shifting requirements of Ministers.

My view is that the complexity of the system is now deliberate; an opportunity has been grasped and the Points Based System is now used as a barrier to all immigration rather than as a gateway to the “right” migrants. It was even extended to family migration in the form of Appendix FM with accompanying Appendix FM-SE with accompanying policies and guidance.

There is in effect a financial filter; only those employers or migrants able to afford top quality legal representation can successfully navigate the labyrinth.

This is anathema to “good” law and we have seen some rather strong judicial criticism of the Points Based System. In Hossain & Ors v Secretary of State for the Home Department [2015] EWCA Civ 207. Lord Justice Beatson says at paragraph 30:

The detail, the number of documents that have to be consulted, the number of changes in rules and policy guidance, and the difficulty advisers face in ascertaining which previous version of the rule or guidance applies and obtaining it are real obstacles to achieving predictable consistency and restoring public trust in the system, particularly in an area of law that lay people and people whose first language is not English need to understand.

This follows on from very strong words in previous Court of Appeal cases. In Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568, Jackson LJ stated that the “provisions have now achieved a degree of complexity which even the Byzantine emperors would have envied”. In Singh v Secretary of State for the Home Department [2015] EWCA Civ 74 Underhill LJ said:

I fully recognise that the Immigration Rules, which have to deal with a wide variety of circumstances and may have as regards some issues to make very detailed provision, will never be “easy, plain and short” (to use the language of the law reformers of the Commonwealth period); and it is no doubt unrealistic to hope that every provision will be understandable by lay-people, let alone would-be immigrants. But the aim should be that the Rules should be readily understandable by ordinary lawyers and other advisers. That is not the case at present. I hope that the Secretary of State may give consideration as to how their drafting and presentation may be made more accessible.

In those previous cases the judges have nevertheless generally gone on to find in favour of the Secretary of State’s interpretation, no matter how arcane.

The latest criticism comes in the case of SI (India) v Secretary of State for the Home Department [2016] EWCA Civ 1255 from Lord Justice Rafferty. We can hope, perhaps optimistically, it represents a sea change. It is worth quoting extensively:

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.

The particular issue in the case turned on the maintenance requirement for Tier 1 Post Study Work migrants, a category that was abolished in The Great Student Crackdown. In particular, had the Secretary of State misinterpreted the meaning of “nominee” in Indian banking law? The direct precedent value of the case is therefore little, unless it does represent a turning point.

Meanwhile, I imagine Home Office civil servants are beavering away designing a new post-Brexit immigration system. There has been no public consultation and if civil servants are left to their own devices with no external input I fear in future that we will see more complexity and bureaucracy, not less.

Source: SI (India) v Secretary of State for the Home Department [2016] EWCA Civ 1255 (07 December 2016)

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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