Contrary to expectations this is going to be a good year for immigration practitioners.
When considering immigration lawyers’ prospects for 2012 we need to remember a lesson from Frederick Bastiat’s Parable of the Broken Window. Bastiat was a 19th century French economist, who taught us to look at what is seen, and at what is not seen.
A young rogue throws a stone through a baker’s window and runs off. A crowd gathers round and condemns the hooligan for his vandalism. But then one of them points out that this will stimulate economic activity. The baker will be forced to employ a glazier. And money will flow through the system. A murmur of agreement is heard.
Bastiat says the crowd sees the new window, so they assume this stimulates economic activity. What they don’t see is the suit of clothes the baker would have bought from the tailor. Although the same amount of money has been spent either way, the baker loses out on his suit in order to keep his window. So when we examine the prospects for immigration lawyers, let’s remember not to take things at face value.
It is the government’s policy to reduce immigration from the hundreds-of-thousands to the tens-of-thousands. There are going to be fewer people coming into the country. So the logic goes that just as the criminal bar would have a difficult year if there were fewer criminals, immigration practice will have a difficult year because there will be fewer immigrants.
But what is not seen is the increased competition between immigrants for visas. Because they will become more scarce, the value of each visa will increase: the greater likelihood of success associated with representation will be enough of an incentive for people to use lawyers.
And we are likely to see more refused applications, and more appeals. The recent introduction of fees for appeals to the First Tier Tribunal will deter some; but others will seek experienced practitioners to minimise the risk of their money going to waste.
Work will increase in this area as people become increasingly inventive about how to appeal Home Office decisions. There have been a lot of Article 8 cases recently that have caused concern in the media, most notably because one case reportedly said that playing cricket is enough to win on private life grounds.
Whilst this is an obvious exaggeration, it does illustrate the point that there are other ways for immigration lawyers to earn their crust. The last way in which work will increase is specialisation. Few areas of law change as quickly and as frequently as immigration. And with new policies, changes to the Immigration Rules, and conflicting case law, people will have more need for lawyers.
Keeping one eye on the most recent developments in case law is a particularly good way of knowing how to add a winning touch to visa applications; citing recent decisions from the Upper Tribunal or the Court of Appeal or Supreme Court can make all the difference. Especially where human rights are concerned, an alert and intelligent lawyer will be able to think tactically and succeed on discretionary grounds.
And even though the Legal Services Act 2007 is liberalising the market, immigration can still only be practised by ‘qualified people’ under the Immigration and Asylum Act 1999. Although the Legal Services Act 2007 might eventually lead to a wider pool of qualified people, and challenges from providers with established brand presence and customer loyalty, there are no signs that this is going to happen in the near future.
So remember, when the government closes a door your lawyer can open a window.
Henry Oliver works at Mulberry Finch, an immigration and employment practice on High Holborn, London
