Court of Appeal judge has harsh words for the impenetrable Rules
As highlighted by Free Movement, Lord Justice Irwin had some harsh words for the Immigration Rules — calling them "something of a disgrace" — in a speech he gave last week on the subject of complexity and obscurity in the law.
In the speech, Lord Justice Irwin argued that "there is room for a real effort to make language simple and to avoid cannibalistic drafting" in legislation, as otherwise lay people will find the law "completely impenetrable" and even "non-specialist lawyers will make frequent errors."
The Immigration Rules were held up as providing "many classic examples" of the impenetrable approach to drafting legislation.
Lord Justice Irwin declared: "The Immigration Rules are, in truth, something of a disgrace."
Elsewhere in the speech, Lord Justice Irwin highlighted complexity and obscurity in Appendix FM of the Rules, stating: "Article 8 of the ECHR provides for the right to family and private life. Through Appendix FM to the Immigration Rules, the Secretary of State has sought to prescribe how the Courts should interpret and apply Article 8. The Supreme Court has held that, while the Rules are a relevant consideration, the ultimate question is one of proportionality. The consequence is that tribunals and courts must take account of numerous often overlapping Rules which are complicated and often obscure, but then apply an over-arching principle. Even when the Rules are not met, the individual may still have a valid Article 8 claim. When does the transition occur?"
The Immigration (EEA Nationals) Regulations 2006 were given by Lord Justice Irwin as an example of legislation where "the drafting can be rendered more difficult where political objectives, perhaps particularly populist political objectives, come into play."
With reference to the case of Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755, Lord Justice Irwin explained:
"The point concerns the right of appeal to the First tier Tribunal for extended family members (“EFMs”) of EEA nationals who have had their residence card application refused by the Home Office. These sought to give effect to Directive 2004/38/EC, within the domestic immigration law context. Regulation 17(4) provided that the Secretary of State “may issue a residence card” to an EFM, whereas they “must” do so for family members. There was therefore a discretion in relation to EFMs. Regulation 26(1) provided there was a right of appeal against an EEA decision. An EEA decision was defined in Regulation 2(1) as a decision which “concerns” a person’s entitlement to be issued with a residence card. The Regulations contained at least three different bases on which the Secretary of State could refuse an application, though it was often unclear how these interrelated. There was a surfeit of cross-references, rather than an absence.
"Regulations determining the rights of individuals in the immigration context may sometimes be necessarily complex, but we must ask whether they could not be drafted in a manner which makes them less obscure. In the end, the case turned on none of that, but on the meaning of the English phrase “concerns an entitlement”, as the Supreme court subsequently agreed."
Finally, Lord Justice Irwin also offers some useful advice for lawyers looking to avoid accusations of complexity and obscurity in their arguments: "The function of advocacy is to persuade the tribunal. Nothing is persuasive unless it is selective and given emphasis. Advocates must have the courage, having thought through the case, to choose the propositions and arguments which really are important, and which truly have a prospect of success. Selection and clarity, backed up only by the necessary case citation, and by cases which are apt in context, will always aid success. Anything less focussed will irritate and may risk success. Remember Lord Judge’s history master and avoid the Anxious Parade of Knowledge." [1]
Lord Justice Irwin describes "excessively long and complex" skeleton arguments as "a curse", and he advises: "Moreover, if the case does require a long or longish skeleton argument (let us say more than eight pages), at least begin with your key propositions. What are you trying to establish? If you have the courage and can achieve the clarity to say so simply at the beginning, then the arguments, for better or worse, will fall into place behind."
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[1] The speech earlier explains: "Lord Judge is fond of quoting his sixth form history master who, in the face of an unnecessarily prolix essay, would mark a rebuke in the margin: APK. That stood for “Anxious Parade of Knowledge”. Every advocate drafting written submissions should have the principle of “no APK” at the front of their minds."