Since the introduction of the Points-Based System, individuals who enter under Tier 1 and Tier 2 have been affected most by the Conservative-led and Labour governments' immigration policies. Migrants are caught in a system in which legislation is applied retrospectively and genuine mistakes in applications result in the prospect of forcible removal from the United Kingdom.

March 15 2012 saw the publication of the long-awaited changes in the immigration rules that will come into effect on April 6 2012. The phrase 'the devil is in the detail' has never been more apt. The rules will introduce a new 12-month exclusion period for all Tier 2 migrants, which will be applied retrospectively. UK employers that made recruitment decisions within the past three years, based on the immigration rules at the time, are now coming to terms with the fact that the rules of the game can be changed completely.

These changes are the latest example of the government using a sledgehammer to crack a nut. In AA (Nigeria) v SSHD(1) Lord Justice Longmore commented:

"I am left perplexed and concerned how any individual whom the [Immigration] Rules affect… can discover what the policy of the Secretary of State actually is at any particular time if it necessitates a trawl through Hansard or formal Home Office correspondence as well as through the comparatively complex Rules themselves. It seems that it is only with expensive legal assistance… that justice can be done."

The current president of the Immigration and Asylum Chamber of the Upper Tribunal noted in Philipson (ILR – not PBS: evidence) India:(2)

"The intrinsic lack of justice in this case comes from the attempt at the 59th month of her 60 month stay, to impose wage conditions on her that were irrelevant to the original grant of the work permit. Having admitted her at a certain wage level and led her to believe that settlement was probable at the end of the five-year period, it is very harsh to refuse her because of a recent change of policy that operated on employers and not employees."

Immigration Minister Damian Green has stated that the way in which the courts interpret the Human Rights Act has led to a "ridiculous and damaging situation where the whole concept of Human Rights is called into question". Unfortunately, given the constant changes in immigration law and policy, in most cases migrants are left with no choice but to challenge UK Border Agency decisions through the courts in order to protect their private and family life in the United Kingdom.

There is a growing perception that the current policy is damaging the United Kingdom's reputation abroad and its economic recovery, and that the country is no longer open for business.

For further information on this topic please contact Andrew Tingley at Kingsley Napley by telephone (+44 20 7814 1200), fax (+44 20 7490 2288) or email ([email protected]). The Kingsley Napley website can be accessed at


(1) [2010] EWCA Civ 773.

(2) [2012] UKUT 00039 (IAC).