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The extraordinary complexity of UK immigration

We would like to tell our readers a story. Long, long ago an Indian national (whose initials were apparently “SI”) had immigration leave in the UK as a student. He applied to extend his leave as a Tier 1 Post-Study Work migrant (a visa category that has now been abolished) but unfortunately the Home Office refused his application.

SI decided to fight. In those days there was the right of appeal to the First-Tier Tribunal for such cases, and he duly appealed. The reason for the Home Office refusal decision was that SI had allegedly not met the requirements for financial maintenance, so this was the issue to be dealt with at appeal.

The appeal hearing was listed for 13 December 2012 and SI submitted additional financial evidence (presumably to the Home Office) in an attempt to improve his chances at the appeal. But suddenly, three days before the appeal hearing, the Home Office withdrew its decision. And so the appeal hearing did not proceed, as there was now no decision to appeal against.

This is something that happens not infrequently, and usually when it does happen the Home Office subsequently makes a new decision granting the visa. In this case however, after a remarkable gap of some 11 months, on 5 November 2013, the Home Office issued a new decision refusing the application for a second time.

SI, obviously a determined individual, fought on, and the case eventually got to the Court of Appeal. From the Court’s judgement, published in late 2016, it is evident that the Court was getting a bit confused, and especially by the refusal decision letter from the Home Office.

The Court (more specifically Lady Justice Rafferty) was rather scathing about it. She said, for example, that:

“The reasoning supporting the decision is confined to two sentences… The first sentence does no more than recite the policy… 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 … 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 [from the Home Office] that we were all wrong…”.

Everyone who works in the business knows that Home Office refusal decisions are often very convoluted, as are the rules that they are based on, so there are no really major surprises here, and such sarcastic criticism from judges is consequently not so uncommon. (A few years ago Lord Justice Jackson, also sitting in the Court of Appeal, caused hilarity when he said that the points-based system rules had “achieved a degree of complexity which even the Byzantine Emperors would have envied.”)

But the Home Office turned out to be in deeper waters than they might have anticipated. There were two judges sitting in the Court of Appeal on the occasion of SI’s case: LJ Rafferty and Sir Ernest Ryder. Sir Ernest is not only an Appeal Court judge but is also Senior President of Tribunals (ie quite high up).

The court judgement went on to say that:

“As the Senior President of Tribunals said … 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 be 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 conclusions reached.”

So, not surprisingly, SI was successful. Does this mean that future cases could be fought and won on the basis that the decision letter is so poorly written that the decision cannot stand? Well, it might, and this judgement could certainly be a valuable tool for immigration practitioners if used carefully.

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