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The main sources of immigration law and their hierarchy Part 1

Immigration law is a complex area of the law. There are 16 main statutes (some of which are referred to below) as well as the Immigration Rules, which has a quasi-legal status and is written about in part 2, as well as statutory instruments, procedural rules and regulations and Home Office guidance. There is also ever-changing case law both the English and Scottish courts. On top of this, there is European and international law.  

It’s crucial that an immigration lawyer puts the correct amount of weight on the appropriate sources of law. For example, while some sources of law will give guidance to court or a Home Office official, they may not be binding.  

Considering the hierarchy

Depending on what level a case is at, may be indicative of the weight should be put on a certain aspect of immigration law. For example, at the initial application stage, an immigration lawyer should be well aware of, and cite from, Home Office guidance, it will be this that the decision-maker is using in order to consider the case and correctly referencing this in the legal representations is likely to be persuasive towards the decision-maker.

However, the Court of Appeal, or the Supreme Court, when considering, for example how Article 8 ECHR should be applied, may take into account Home Office guidance as being reflective of the Secretary of State for the Home Department’s position, but will not regard it is determinative on a point of law.

What is the key legislation?

The key pieces of legislation in the UK are as follows:

The Immigration Act 1971 continues to provide the framework for immigration control in the UK. It still crucially contains section 3C of provision which enables a person to remain in the UK following the expiry of their leave when an application for further leave to remain has been made before their leave expired. A person continues to have the same rights to work in the UK as per their previous grant of leave. These rights continue through any appeals process, although do not continue through any judicial review.

The British nationality act 1981 is still the main piece of legislation respect British citizenship.

Nationality Immigration and Asylum Act 2002 contains section 82 which states when a person has a right to appeal a decision. The Act states that a person has a right to appeal a decision where the Home Office has refused a human rights or protection claim and that claim has not been certified. Crucially this Act also contains section 117 which should be referred to in any First-Tier Tribunal determination that considers proportionality in respect of Article 8 ECHR.

The Borders Citizenship and Immigration Act 2009 most crucially contains section 55 which requires the Secretary of State for the Home Department to treat the best interests of children as a primary consideration. This should be done in any decision-making that the Secretary of State undertakes.

The Immigration Act 2014 is the Act responsible for creating a hostile environment. The creation of the hostile environment included the increase of enforcement powers of immigration officers, greater ability to collect and retain biometric information, was responsible for the change to section 82 of the Nationality Immigration and Asylum Act 2002 which greatly reduced appeal rights against decisions of the Secretary of State. The Act also increased standard notice periods for marriages and civil partnerships to 70 days where one party is not exempt from immigration control, increased deprivation of citizenship powers, required people applying for a driving licence to have leave and introduced requirements for banks and building societies as well as private landlords to check immigration status. Is also responsible for the introduction of 117 of the nationality immigration and Asylum act 2002.

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