Five reasons why the deportation of an enterprising American couple should worry you A retired American couple are not normally the people who make headlines for being deported from Britain. But news that […]

A retired American couple are not normally the people who make headlines for being deported from Britain.

But news that Russell and Ellen Felber would be deported has caused a ripple around the legal world.

The couple even came up at Prime Minister’s Questions, when the SNP’s Ian Blackford challenged Theresa May over whether immigration spurs are growing.

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The Felbers would certainly seem like a model case. After falling in love with the Scottish Highlands, they set up the Torridon Guest House in Inverness, spending £300,000 on the property and £100,000 on refurbishments.

Their customers seemed happy according to online reviews, as did the couple, who were granted a two-year extension on their initial three-year entrepreneur visa before applying for Indefinite Leave To Remain. They were refused, and they’ll have to leave. Why?

Where it went wrong

Read more American couple to be deported from Scotland for not employing enough people

Here’s the problem, though: the entrepreneur visa, which has a 50 per cent refusal rate, higher than any other immigration route other than asylum, comes with conditions. One of them is that such entrepreneurs must create two jobs.

The New Yorkers did so in their first three years, then, thinking they had fulfilled the requirement, let the jobs lapse in the extension. According to their reading of the requirements, that was legal. According to their lawyers’ reading of the requirements, even, it was legal.

But the Home Office “clarified” the rules in April 2016.

Where it once required “an aggregate of at least two new full time posts for two people for at least 12 months each”, it now said that “if the jobs you created during your initial period of leave no longer exist, you create two more in your extension period of leave, and claim points for them – if they exist for at least 12 months”.

Shifting sands

“They didn’t do it because of their interpretation of what the rules required them to do.” Nick Nason

If that’s a rule change, then it doesn’t apply to them, because they were complying with the original rules. They thought they were safe – but the Scottish Court of Session disagreed, causing a stir among immigration lawyers.

“If you read it in plain English it’s fairly easy to see where they went wrong,” says Nick Nason, immigration law expert at Edgewater Legal, who has written about the case for the website Free Movement.

“They didn’t do it because of their interpretation of what the rules required them to do.”

Their case contains a number of warning signs about the British immigration system now – and how it might be after Brexit.

1. You can try your best and still fail

The Felbers weren’t trying to trick anyone. They really believed they were complying with the rules – and even asked for help for peace of mind.

“They had legal advice from experienced lawyers who also came to that view on a reading of that provision,” says Nason.

“It’s just absolutely bonkers that they’re now going to have to shut up shop and leave the UK having invested £400,000 in this enterprise which, by all accounts, was doing really well.”

2. Rule of law fails when ordinary people can’t understand it

If that can happen, and the Home Office can “clarify” a rule in such a way that reasonable people might believe it has changed, something has gone wrong.

“One of the most important factors in the rule of law is that you can read it – that you don’t need an advanced degree in statutory interpretation to be able to understand these provisions,” Nason says.

3. The system doesn’t work

The Felbers’ story adds to a long and growing list of cases where the enormous complexity of the British immigration system is causing problems. It’s not just New Yorkers setting up B&Bs in the Highlands – it’s indefinite detention of immigrants, it’s a lack of security, it’s deportation orders being overturned and families being broken up.

Some lawyers have suggested that the Home Office has ensured that the system is complex on purpose – that they are actively making it as hard as possible in order to deter people.

Nason disagrees, however. “I think it’s beyond the wit of the Home Office to do that,” he says. “It would require a degree of organisation to do that which is beyond them.”

4. A bad system will deter entrepreneurs after Brexit

In less than 18 months, Britain will be out of the European Union. One of the big selling points of Brexit during the referendum campaign was the idea that the UK could pick and choose the most talented immigrants from all over the world – if only it could restrict the number of unskilled people coming from Europe.

Those talented immigrants need to be wooed, though, and removing an American couple for what an outsider might interpret as a clerical error won’t help.

“You’ve got people doing their utmost, even getting legal advice, and they’re still unable to comply with these rules which are designed to promote economic growth, investment and entrepreneurship in the UK,” says Nason.

“That’s a serious issue, especially given the trust that people are placing in this Government to design an immigration system that’s going to compete in the future to attract this kind of talent as our attractiveness as a nation outside of Europe is going to probably decrease.”

5. The same people are going to be in charge of creating the new system

“We’re going to be relying on the same draftsmen when we’re going to be trying to compete for entrepreneurs after Brexit,” says Nason.

If controls on immigration really do return to Britain, as Theresa May promised, then the amount of work the Home Office has to do is going to increase a lot.

Cases like this one make current and potential immigrants – and observers – concerned that scaling up a wobbly system is going to lead to problems on a bigger scale.