Chapter 1 End-of-chapter question guidance

History and sources of immigration law

1. Are the themes identified by Bevan in 1986 still applicable in the present day? Describe the development of the themes in the twenty first century.

Say what Bevan’s themes are, and try tracing each through the material in this chapter. Consider for instance what government objectives keep cropping up. Are there matters that the government legislates on repeatedly - never seeming to solve the problem? If so, what are those problems? Does case law repeat certain themes?

You could consider this question now, then revisit it after reading chapter 2, where the international context and the procedural aspects of Home Office policy are introduced. Will Somerville's book, listed in the reading for chapter 2, also suggests themes that are current.

2. The Minister introducing the 2009 draft Immigration Bill said that it would ‘ensure that Parliament and not case law determines immigration policy’. To what extent is this a realistic or desirable objective, given the nature and sources of immigration law?

Consider realism and desirability as two matters.

On realism, consider the kinds of immigration measures that are contained in legislation. To what extent do these measures provide a workable system of immigration law?  Why do cases come to the courts and tribunals, and what functions do the courts and tribunals fulfil that are relevant to this question?

On desirability, you might consider why Parliament is suggested by the minister to be a more suitable body to control immigration policy. What are the advantages and drawbacks of judges not only deciding immigration cases but laying down principles of law.

3. Given the use and origin of the immigration rules, it appears that the Secretary of State both makes and implements much of immigration law. Is this a problem?

  1. Describe the power of the Secretary of State to make immigration rules, and what their standing is.
  2. How are the immigration rules implemented and by whom?
  3. Can such immigration decisions (implementing the rules) be challenged?
  4. In the light of your answers so far, what problems if any do you see in the Secretary of State having this dual role?
  5. This question can be revisited after reading chapters 2 and 7.

4. How have race and ethnicity been relevant to the development of UK immigration law. Do they remain relevant?

Consider, by reference to the content of this chapter and by reading the related resources, how far it can be said that, historically, relevant distinctions and choices in UK immigration law and policy have been made on the basis of ethnicity and/or race, rather than nationality. Writing in the 1980s, Bevan in The Development of British Immigration Law, identified race relations as one of his nine themes in UK immigration policy race relations. What, in your view, did he mean by that and does this remain the case today?

5. The policy statement for the new points-based system to be applied from 2021 states as a central aim the equal treatment of EU citizens with migrants from non-EU countries. Does this make it a positive development?

Consider and compare the central principles of domestic immigration law with the distinct principles applicable in EU free movement law. Consider the effects of the UK’s withdrawal from the EU on people seeking to visit, live or work in the UK after 11pm on 31 December 2020. Is this a fairer or more equal immigration policy? Explain why you agree or disagree with the UK Government’s position as set out in the question.