Why changes to earned settlement rules undermine the Rule of Law

Legal certainty is a key component of the rule of law. It requires that rules of law be clear, precise and predictable in their effect, so that interested individuals can understand how legal rules will affect them.

For this reason, most changes to our laws and rules contain transitional provisions and are prospective in nature. Transitional provisions manage the change from an old legal rule to a new one, ensuring there is clarity and fairness when new rules begin.

Yesterday's announcement on earned settlement confirms changes to the UK's immigration rules, which for most groups contain no vital transitional provision. Instead, the Home Secretary will change her decision-making rules, so that people who have relied upon and meet her existing rules will be required to meet new rules, or they will fall out of lawful status and be forced to leave.

These changes will affect half a million people, who built their life in the UK, who relied upon the Home Office's rules and the fairness of the UK's legal system. Without transitional provisions, after years of working towards meeting the rules for the immigration route under which they were granted, the rug will be pulled from beneath their feet. For most, the length of their route to settlement may be doubled. For refugees, their route may be extended up to 30 years.  

Lord Bingham's first principle of the rule of law is that it be accessible and, so far as possible, clear and predictable. There are two reasons for this. First, if we are to claim legal rights or perform legal obligations, it is important we know what our rights and obligations are. Second, in Lord Bingham's words, 'No one would choose to do business, perhaps involving large sums of money, in a country where the parties' rights and obligations were vague or undecided'.

The House of Lords Constitution Committee has previously set out that retrospective legislation is unacceptable other than in 'exceptional circumstances'. The detail of our immigration system is governed by Home Office rules, rather than law.

Nevertheless, the longstanding use of transitional provisions has preserved predictability in our legal system. Regardless of one’s views on the wider substance of yesterday's announcement, the application of new rules to people who have built their life around our clear and prior rules is a poor administrative practice. Shifting legal goalposts undermines the rule of law.

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