Introduction

George Carlin and Lord Steyn describe, in their own ways, how difficult it can be to understand politicians and their policies. An implication of this indeterminate communication is that judges often have to make sense of the law. This chapter looks specifically at judicial interpretation of immigration law. No other public policy domain has been subject to more litigation than immigration and asylum. It also dominates public debate. Battles over Brexit, economic growth, social care and national security have all circled round questions of who has a right to reside in the UK. This chapter grasps the nettle. Here, I analyse what impact indeterminacy in immigration law has had on the effectiveness of policy.

For this opening chapter of Part Two, the focus is on how legislative language affects central government powers. Immigration and asylum laws delegate power from Parliament to the government, and the aim is to track this inter-institutional coordination. An attempt by the government to act under delegated powers will be deemed to have been ineffective if it is declared illegal. So, the specific question for this chapter is as follows: why are government steps to manage immigration increasingly declared illegal in court? By focusing on judges’ rulings, we can better understand what happens when politicians ‘don't actually say [any]thing’, as Carlin put it. The failed inter-institutional discourse between Parliament and the government stimulates a judicial response. Judges’ rulings can therefore provide a logic of communication that was absent from the law.