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Simplifying immigration law

Simplifying immigration law

The framework for immigration control is mainly contained in the Immigration Act 1971. This has been amended by major pieces of primary legislation in 1988, 1993, 1996, 1999, 2000, 2002, 2004, 2006 and probably also in 2007 by the UK Borders Bill currently before Parliament. Each Act has involved an overhaul of existing immigration law to introduce ‘essential’ new powers for ministers.

The original text of the 1971 Act has been almost entirely replaced by amendments. Then those amendments have been amended, those amendments re-amended and so on.

To make matters worse, much immigration law is contained in secondary legislation. The primary Acts of Parliament often give ministers delegated powers to make rules and regulations governing even such important matters as who is entitled to a right of appeal. The secondary legislation is if anything more incompetently drafted than the primary stuff, and often ends up needing to be amended and re-amended itself through additional sets of amending regulations.

The result is hideously complex.

To work out what is current law, all of the Acts need to be read alongside each other and cross referenced. The legislation available from the Office of Public Sector Information (previously Her Majesty’s Stationary Office) comes in unamended form and is therefore more or less useless. The Statute Law Database (first brought to my attention by Lo-Fi Librarian, thanks) will eventually incorporate all of the relevant amendments to every piece of legislation. It will be an excellent resource when completed, but the immigration legislation is still work in progress and the SLD states that certain amendments are not yet included.

I believe some of the law subscription services, like LexisNexis, include amended forms of the legislation, but these are paying services. The only cheap, up to date and portable version of the legislation is the Immigration Law Handbook edited by Margaret Phelan and Jim Gillespie. This is invaluable. However, even though a new edition is issued every year or so, it is quickly rendered out of date by various bits of legislative tinkering by the Home Office.

Immigration lawyers have been suggesting for some time that a piece of consolidating legislation would be useful, to set out all the relevant primary law in one place, replacing and fully repealing the 1971 Act. Ministers were always reluctant to undertake this mammoth legislative task, and perhaps rightly so given some of the incompetent drafting that regularly emerges from the Home Office.

Times seem to have changed, and a consultation paper has been issued. Simplifying immigration law is undoubtedly a good idea, but I fear that the opportunity will be used firstly to remove the checks and balances in the existing mess and secondly to delegate even more powers to ministers. The result could be superficially very simple, but it would hide both a complex web of constantly changing secondary legislation and a shift away from the rule of law as we currently understand it. Ministers would, for example, give and take rights of appeal as they chose and would give their minions free reign on issues like long term detention and powers of arrest.

It is good to see they are finally biting the bullet on this long overdue review, but I suspect the outcome might not be what immigration lawyers and immigrants would want.

Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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