The Immigration Rules should be redrafted and restructured in order to cut down on complexity, the Law Commission says. Launching a consultation on Simplifying the Immigration Rules today, the influential law reform body proposes major revisions to “provide a more logical structure, remove unnecessary repetitions and improve the drafting”.

The regulations that underpin the UK’s immigration system have grown from 40 pages in 1973 to around 1,100 today, the commission points out. The sheer length, unwieldy drafting and confusing structure of the Rules make it difficult for migrants — as well as Home Office decision-makers — to understand and follow them.

The Law Commission gives the example of the rules on applying to extend an entrepreneur visa. These include a requirement that the applicant has created two new full-time jobs by setting up their business. Paragraph 50 of Appendix A now devotes 750 words to the evidence required to prove this; the equivalent a decade ago took just 76 words.

Nicholas Paines QC, the commission’s point man on public law, says that “as the Immigration Rules have become longer, more detailed and more specific, they’ve also become more complicated and harder to follow for applicants. The Home Office has asked us to help put things right”. The review was announced by then-Home Secretary Amber Rudd in October 2017.

A 274-page consultation paper published today goes into considerable detail on the problems and sets out some “provisional proposals” for change.

Any reform will be limited, however, to how the Rules are presented. The terms of reference for the review do not include “substantive immigration policy. It will not seek to change the legal basis on which a person may be granted leave to enter or remain in the UK”.

That said, some of the ideas canvassed in the report would have practical implications. For example, the commission says that a less prescriptive approach giving case workers scope to use “common sense” could be beneficial for all concerned. It takes the New Zealand equivalent of the Immigration Rules, with their “short, flexible, and non-exhaustive” approach to evidence, as a case study. But the commission notes a risk that “a more discretionary approach might lack clarity, certainty, consistency and efficiency”.

On structure, the Law Commission says that having the requirements for a particular visa scattered around different sections of the Rules is the worst possible approach. Instead, it recommends that the redrafted Rules follow either

• a “common provisions” approach, where applicants can check the requirements common to all visas before turning to their particular route
• a “booklet” approach, where all the requirements for a particular route are gathered together under one heading

Either way, the commission provisionally recommends that the Rules be divided into 15 categories:

1. Visitors
2. Students
3. Work
4. Short-term work and work experience
5. Business and investment
6. Family members of workers, businesspersons, investors and students
7. Family members of British citizens, settled persons and persons with refugee/humanitarian protection status
8. Long residence and private life
9. Armed forces
10. Other categories
11. ECAA nationals and settlement
12. EU citizens and family members
13. Asylum
14. Temporary protection
15. Stateless persons

If following the “common provisions” approach, the Rules could also contain overarching provisions — such as “general grounds for refusal of leave”. If following the “booklet” approach, each category would include all rules relevant to that kind of application. There would be just seven appendices.

The consultation also recommends change to labelling, saying that

the way in which the Rules and Appendices are numbered has become confusing and inconsistent. They have become extremely difficult, and in some places almost impossible, to navigate.

Instead of individual rules being numbered “E-ECPT.1.1” etc, the commission proposes that “paragraphs should be numbered in a numerical sequences”. As Colin has pointed out on this blog before, if putting item 2 after item 1 on a list was good enough for the Ten Commandments, it ought to be good enough for the Immigration Rules.

On drafting style, the commission recommends that a new version of the Rules should avoid extensive cross-referencing, as this leads the reader “through a labyrinth of provisions to locate requirements”. Instead, where possible, paragraphs should be “self-standing”. The consultation paper includes some specimen redrafting at appendices 3 and 4.

The commission also points out that it’s not even clear what the exact legal status of the Immigration Rules is. The consultation paper cites “judicial disagreement” over whether or not the Rules are delegated legislation or merely detailed guidance notes. It concludes that they are a “unique form of legal text, not equating exactly to delegated legislation but having some of its characteristics”.

There are 54 consultation questions in total. The deadline for responses is 26 April 2019.