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The problem with “simplifying” immigration law

The problem with “simplifying” immigration law

Immigration law is complicated. This will probably not be a surprise to readers of this blog. There has, over the last couple of years, been a concerted effort to simplify it. This is a good thing. But has it been successful?

Different types of complicated

Immigration law can be complicated in two ways:

  1. Legal complexity – the legal provisions are difficult to understand
  2. Procedural complexity – the application process is unduly expensive, cumbersome, inflexible, misleading, and/or bureaucratic

We have two different systems of immigration law:

  1. One for EU nationals and their family members who entered the UK before 31 December 2020 – the EU Settlement Scheme
  2. Another one for everyone else – the “new” Points Based System (which may or may not be “Australian style”, I’ve lost track)

The EU Settlement Scheme is procedurally simple, but legally complex. The Points Based System is legally simple, but procedurally complex. Both are frequently portrayed by the government as simple and user-friendly. In truth, as we shall see, neither are.

Procedural simplicity, underpinned by legal complexity

The EU Settlement Scheme is admirably simple to apply for. It is free. You can apply with a smartphone app. Most people do not need to attend an appointment. Decisions are, in general, issued promptly. The technology does not always work, and there can still be complicated cases (Surinder Singh, retained rights, Zambrano carers, extended family members etc.). But overall the Home Office has succeeded in its aim to create a simple system for transferring all EU citizens and their family members into the UK immigration system post-Brexit.

Yet the Advertising Standards Authority had to step in last year due to the Home Office’s misleading adverts promoting the scheme. The problem is that it is deceptively simple. Underneath the slick app and quick process is an almost incomprehensible mess of legal provisions – Appendix EU and Appendix EU (Family Member).

As a result, people are misled. They do not seek legal advice when they ought to. They do not appreciate the significance of being granted pre-settled rather than settled status. They do not realise there are additional hurdles for unmarried partners.

They may even apply for a status they are not entitled to. I have seen clients who have been granted settled status despite having excessive absences from the UK. You are not asked for this information anywhere when applying. I have seen clients granted settled status when they have been here for under five years. The Immigration Rules allow the Home Office to strip people of their status in such circumstances — even if they were completely unaware of the defect in their application when applying. 

Legal simplicity, hampered by procedural complexity

The new Points Based System is almost the exact opposite. The Home Office has spent the last year simplifying the Immigration Rules. It has done reasonably well. The language has been simplified in places. The rules for each category are now (mostly) all in one place, and sections of the Rules have descriptive names to make it clearer what they cover.

The rules for someone applying for a work visa who is being accompanied by their spouse — not exactly a niche scenario — were previously contained in Part 6A, Part 8, and Appendixes A, B, C, and E of the Immigration Rules. They are now in Appendix Skilled Worker, Appendix English Language, and Appendix Finance. That’s an improvement.

The skill and salary level for work visas has been reduced, switching between different types of visa from within the UK is now generally allowed, and requirements that previously caused delay — such as carrying out the Resident Labour Market Test or applying for a restricted Certificate of Sponsorship — have been abolished.   

But again this simplicity is deceptive.

The process is expensive, cumbersome, and needlessly bureaucratic. The total cost for a small business which wants to employ a foreign national for three years is £4,309. It is £7,157 for a medium/large business. Nichola explained this issue very well back in February, although the figures are now even higher because the Immigration Health Surcharge has increased from £400 per year to £624 per year.

Making an application involves lengthy application forms, misleading requests for documents, and dealing with the Home Office’s rage-inducing “commercial partners”. I made an application for a Skilled Worker and her three family members last week. This involved separate application forms for each family member; I had to insert the lead applicant’s name, nationality and date of birth eight times.

The form requested details of the bank account being used for maintenance, despite this being unnecessary as the sponsor had certified maintenance and this had been confirmed earlier in the application form. The application could not be progressed without providing this irrelevant information.

After submission, you need to book an appointment through VFS Global’s website. Or rather, four separate appointments on four different days for each member of the family. My client optimistically attempted to call the application centre and reported:

I tried calling, and it’s just an automated message saying no one will be answering but you can go to the website to schedule an appointment to speak with someone, which just leads to a Kafkaesque trail of more meaningless auto recordings and unhelpful websites.

Needless expense. Needless frustration. Needless complexity. I won’t give all the other examples that spring to mind just my own practice, but see Darren’s post last year on The absolute state of the UK visa application system for more on these issues.

Is any of this a problem?

Immigration lawyers like to say that immigration law is the most complex area of law there is. I’m not sure I agree. Other areas of law are complicated too. Other areas of law are subject to constant piecemeal changes and an inability to agree underlying principles or objectives due to populist narratives replacing measured debate. Take a look at tax law for an example of the former, and the law of criminal evidence in Scotland for an example of the latter.

What really frustrates me is the constant mischaracterisation of immigration law and policy as simple and user-friendly. It isn’t, and perhaps it can never be. There will probably always be some element of either legal or procedural complexity. As we have seen with the coronavirus regulations, rules and procedures that aim to regulate a myriad of different human situations are never going to be entirely straightforward. That is why other areas of law are also often complex. People are complicated. As such, so is law.

It would be better if the government could simply admit that. A complicated — but effective, efficient, and most importantly transparent — system is preferable to one that pretends to be simple, but is in reality plagued by hidden complexity.

Now read: Is the government website misleading visa applicants?

Iain Halliday is a solicitor at McGill & Co, a Scottish law firm specialising in immigration and nationality law. Iain is also Vice Convenor of the Law Society of Scotland's Immigration and Asylum Committee and has been involved in drafting submissions to Parliamentary Committees at both Westminster and Holyrood.

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