- BY Colin Yeo
Law Commission calls for total rewrite of Immigration Rules
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The Law Commission’s long-awaited report on Simplification of the Immigration Rules says that rewriting and paring down the “overly complex and unworkable” document would improve legal certainty and transparency for applicants as well as save money for the courts and the Home Office.
The Immigration Rules are the document that set out the precise criteria for granting or refusing permission to enter and remain in the United Kingdom. It is the single most important legal instrument for day to day immigration law. The dire drafting of the Rules has for some time been an acute source of frustration for individual applicants, the lawyers trying to help them and even the judges deciding their cases.
The independent law reform body recommends a rewrite of the 1,100 pages of the Rules, with a complete restructure complemented by improved drafting and fewer changes in future. The last such exercise took place in 1994, over 25 years ago, and the current version of the rules has grown hugely and chaotically since then. The two separate sections both entitled ‘Asylum’ at Part 11 and Part 11B, separated by Part 11A entitled ‘Temporary Protection’ are my personal favourite.
Public Law Commissioner Nicholas Paines QC says that “by improving the drafting, restructuring the layout and removing inconsistencies, our recommendations will make a real difference by saving money and increasing public confidence in the rules”.
The report’s 41 recommendations include:
- A new 24-part structure to the Rules, covering definitions, commons provisions and specific routes, followed by seven appendices
- Giving each paragraph a number, rather than a confusing blend of letters and numbers
- A new drafting guide, including advice such as “get straight to the point” and “use simple, everyday English”
- An advisory committee to review the text at regular intervals
- Producing “booklets” of the Rules that apply to each visa category
- Simplifying and consolidating Home Office guidance documents in tandem with tackling the Rules themselves
- “A less prescriptive approach to evidential requirements”, with lists of accepted and acceptable evidence provided (similar to the approach in Appendix EU)
- Only two statements of changes to the Rules a year, unless there is “an urgent need for additional change”
A separately published impact assessment concludes that the savings across government — including reductions in unnecessary cases for the immigration tribunals and in Home Office casework costs — would be £70 million over ten years.
Restructuring the Rules
The Law Commission launched a consultation on the simplification project this time last year. It argued for a complete rewrite and restructure of the Rules, which have almost quadrupled in length in just the last ten years.
The consultation set out two possible approaches to the structure of the Rules. One was to put “common provisions” up front, followed by the particular rules for each route. The other was put all the rules that apply to a given route under one heading, even if that means a lot of repetition — the “booklet” approach.
The final report does not make a clear choice between the two. It recommends that the canonical version of the Immigration Rules that is laid before Parliament should follow the common provision structure, but subject to an “audit” of what the common provisions actually are before a final decision is taken. Booklets of the self-contained rules for each category would then be produced separately to assist applicants, but would not have Immigration Rules status.
Chapter 7 of the report deals with the internal organisation and drafting of the Rules. This recommends the return of numbered paragraphs and avoiding cross-referencing unless strictly necessary.
Redrafting the Rules
In terms of the actual content of the Rules, the Law Commission’s remit does not extend to changing any of the policies expressed in the text. As the Upper Tribunal judges’ consultation response pointed out, “if the policy the Secretary of State seeks to achieve is complex, then the Rules will necessarily be complex”. But the report does recommend that “suitability for the non-expert user” be among the principles underpinning the redrafting of the Rules. Writing them accessibly will also help lawyers, the Law Commission says (correctly: that is the approach we try to follow here on Free Movement).
It also considers the case for reducing the level of “prescription” in the Rules: in other words, making them less specific and leaving more up to caseworkers. The Commission felt that the advantages of reducing prescription across the board were outweighed by the accompanying reduction in certainty for applicants. It did recommend “making the lists of evidence contained in the Rules non-exhaustive”. The idea is that the criteria for a given visa would still be detailed, but there would be more flexibility on the evidence required in support of the application.
Maintaining the Rules
The 219-page report does not stop with suggestions for improving the presentation of the Rules. It also looks at how to stop them from degenerating again, given that policy and technical changes will always require amendments.
The Commission suggests that consultation with experts groups “could play an important role in controlling complexity and promoting consistency and certainty”. This could best be achieved by setting up an “informal review committee” rather than doing it ad hoc. Such a committee would be advisory only and should include “Home Office civil servants, immigration practitioners and organisations representative of non-expert users of the Rules, including those representing vulnerable applicants”. There should also be an online portal for user feedback.
There are also recommendations around statements of changes to the Rules. The report points out that
The publication of changes solely as a list of amendments and additions contributes to making the effect of changes difficult to understand. There is no document to show how they alter the existing Rules.
To remedy this, the Law Commission suggests that future statements of changes include a “Keeling schedule”. This is like doing tracked changes on a Word document: the changes would show up as red text or crossed out text on the original document, allowing readers to understand exactly what’s changed.
What happens next?
Frankly, we’re not sure. The Law Commission was brought in to look at the Rules by Amber Rudd when she was Home Secretary; it seems to have been her idea and her priority. Her successor Sajid Javid was silent on the project, as far as I know. Whether current Home Secretary Priti Patel is interested in taking this forward is unknown. There is no formal response from the Home Office to the report as yet. Law Commission reports can and in the past have been ignored by the government of the day. There was a major project to simplify the primary legislation underpinning immigration law back in 2008/9 which was simply abandoned.
We know that the Home Office has a LOT of work on its plate at the moment. Civil servants are supposed to be designing a new “Australian style” immigration system to take effect at the start of 2021 which will apply equally to newly entering EU citizens and other nationalities. Presumably it is exactly the same civil servants who are working on that who would be expected to work on the new version of the Immigration Rules. The final Law Commission report is huge and there is a lot to think about for the Home Office.
There is also the fact that if the rules are about to be substantially rewritten for a new immigration system, it might be wise to undertake that exercise before carrying out the wholesale rewrite and restructure proposed by the Commission. Or perhaps the new system could be the pilot for the new system. Or perhaps it can somehow all be done at the same time.
The need for reform is so acute in this case that hopefully the exercise will not prove to have been a colossal waste of time. If serious reform does occur, it is likely to be over a prolonged timeframe.
Recommendation 1.
We recommend that the Immigration Rules be overhauled.
Recommendation 2.
We recommend that the following principles should underpin the redrafting of the Immigration Rules:
(1) suitability for the non-expert user;
(2) comprehensiveness;
(3) accuracy;
(4) clarity and accessibility;
(5) consistency;
(6) durability (a resilient structure that accommodates amendments); and
(7) capacity for presentation in a digital form.
Recommendation 3.
We recommend that the Secretary of State considers the introduction of a less prescriptive approach to evidential requirements, in the form of non-exhaustive lists, in areas of the Immigration Rules which he or she considers appropriate.
Recommendation 4.
We recommend that in those instances where prescription is reduced, lists of evidential requirements should specify evidence which will be accepted, together with a category or categories of less specifically defined evidence which the decision-maker would consider with a view to deciding whether the underlying requirement of the Immigration Rules is satisfied.
Recommendation 5.
We recommend the division of the subject matter of the Immigration Rules in accordance with the list of subject-matter set out in appendix 4 to this report.
Recommendation 6.
We recommend that the Home Office should conduct an audit of provisions in the Immigration Rules that cover similar subject-matter with a view to identifying inconsistencies of wording and deciding whether any difference of effect is intended.
Recommendation 7.
We recommend that a statement of a single set of Immigration Rules and subsequent changes to them should be laid in Parliament and made available on paper and online.
Recommendation 8.
We recommend that, pending the identification of technology that directs an applicant to Rules relevant to their application, the Rules should be reworked editorially by a team of experienced officials and checked to ensure legal and policy compliance by a suitably qualified person conversant with the subject-matter so as to produce booklets for each category of application which are also made available on paper and online.
Recommendation 9.
We recommend that any difference in wording and effect between Immigration Rules covering the same subject-matter should be highlighted in guidance and the reason for it explained.
Recommendation 10.
We recommend that:
(1) definitions should be grouped into a definitions section, either in a single set of Immigration Rules or in booklets, in which defined terms are presented in alphabetical order;
(2) if the terms are defined in a booklet, only terms which are used in that booklet should be included;
(3) terms defined in the definitions provision should be identified as such by a symbol, such as #, when they appear in the text of the Rules; and
(4) in the online version of the Rules, hyperlinks to the definitions section or, technology permitting, hover boxes should be provided where a defined term is used.
Recommendation 11.
We recommend that the following principles should be applied to titles and subheadings in the Immigration Rules:
(1) there should be one title, not a title and a subtitle;
(2) the titles given in the Index and the Rules should be consistent;
(3) titles and subheadings should give as full an explanation of the contents as possible, consistently with keeping them reasonably short;
(4) titles and subheadings should not run into a second line unless necessary in the interests of clarity; and
(5) titles and subheadings should avoid initials and acronyms.
Recommendation 12.
We recommend that subheadings should be used in the Immigration Rules only where necessary in the interests of clarity and understanding.
Recommendation 13.
We recommend that a table of contents should be placed at the beginning of each Part of the Immigration Rules.
Recommendation 14.
We recommend the following numbering system for the Immigration Rules:
(1) paragraphs should be numbered in a numerical sequence;
(2) the numbering should re-start in each Part;
(3) it should be possible to identify from the numbering system the Part within which a paragraph falls, the use of multilevel numbering commencing with the Part number;
(4) the numbering system should descend to three levels (1.1.1 and so on) with the middle number identifying a section within a Part; and
(5) letters should be used for sub-paragraphs and lower case Roman numerals for sub-subparagraphs.
Recommendation 15.
We recommend that:
(1) Appendices to the Immigration Rules should be numbered in a numerical sequence;
(2) in the online version of the Rules, references to Appendices should be in the form of hyperlinks; and
(3) to the extent that booklets are produced, these should also use hyperlinks to refer to Appendices.
Recommendation 16.
We recommend that text inserted into the Immigration Rules should be numbered in accordance with the following system:
(1) new sections or paragraphs inserted at the beginning of a Part or section should have a number preceded by a letter, starting with “A” (A1, B1, C1 and so on); a section or paragraph inserted before “A1” should be “ZA1”; for example, 1.A1.1 or 1.1.A1;
(2) new lettered sub-paragraphs, inserted before a sub-paragraph (a), should be (za), (zb) and so on, and paragraphs inserted before (za) should be (zza), (zzb) and so on;
(3) where text is added to the end of existing text at the same level, the numbering should continue in sequence;
(4) new whole sections or paragraphs inserted between existing sections or paragraphs should be numbered as follows: (a) new numbering inserted between 1 and 2 should be 1A, 1B, 1C and so on; for example, 1.1A.1 or 1.1.1A; (b) new numbering inserted between 1A and 1B should be 1AA, 1AB, 1AC and so on; (c) new numbering inserted between 1 and 1A should be 1ZA, 1ZB, 1ZC and so on (and not 1AA and so on); and (d) new provisions inserted between 1A and 1AA should be 1AZA, 1AZB, 1AZC and so on;
(5) a lower level identifier should not be added unless necessary; and
(6) after Z or z, the sequence Z1, Z2, Z3 and so on or z1, z2, z3 and so on should be used.
Recommendation 17.
We recommend that definitions should not be used in the Immigration Rules as a vehicle for importing requirements.
Recommendation 18.
We recommend that, where possible, paragraphs of the Immigration Rules:
(1) should be self-standing, avoiding cross-reference to other paragraphs unless strictly necessary; and
(2) should state directly what they intend to achieve.
Recommendation 19.
We recommend that appropriate and consistent signposting to other portions of the Rules and relevant extrinsic material should be used in the Immigration Rules.
Recommendation 20.
We recommend that repetition within portions of the Immigration Rules should be adopted where desirable in the interests of clarity.
Recommendation 21.
We recommend the adoption of the drafting guide set out in appendix 6 to this report.
Recommendation 22.
We recommend that:
(1) the Home Office should convene at regular intervals a committee to review the drafting of the Immigration Rules in line with the principles that we recommend in this Report;
(2) the committee should review the interaction between the Rules and guidance;
(3) the committee should be advisory only; and
(4) the terms of reference of the committee should exclude consideration or review of immigration policy.
Recommendation 23.
We recommend that the Home Office should design a more structured process for receiving and responding to user feedback to speed up rectification of problems identified in the Immigration Rules, make responses accessible to other users, and create an internal mechanism to relay learning to teams.
Recommendation 24.
We recommend that:
(1) where appropriate, statements of changes to Immigration Rules should set out the affected portion of the text in its amended form in the style of an informal Keeling schedule;
(2) an alert should appear in the online version of the current Rules to draw attention to pending changes, with a link to the Keeling schedule and an indication of the date when the change would come into effect; and
(3) explanatory memoranda should contain sufficient detail to convey the intended effect of a proposed amendment to the Rules in language accessible to a non-expert user.
Recommendation 25.
We recommend that the Home Office should follow a policy that there should be, at most, two major changes to the Immigration Rules per year, unless there is an urgent need for additional change.
Recommendation 26.
We recommend that:
(1) a statement of the date from which a Rule has effect should be provided in the online version of the Immigration Rules, explaining whether the commencement date relates to decisions or applications or applies any alternative formula; and
(2) the indication should be provided in such a way that it appears on the printed copy if a Rule is downloaded and printed.
Recommendation 27.
We recommend that improvements to the system for archiving previous versions of the Immigration Rules should be made, with consideration given to adopting either an online archive search facility which allows a search of versions of a Rule by keying in a date, or the presentation of the Rules in an annotated form which provides links to previous versions of the Rules.
Recommendation 28.
As an interim solution, as a way of improving the existing archive, we recommend that a link to the statement of changes which introduced the version of the Immigration Rules should be included in each archived version of the Rules. The link should refer to the relevant paragraph numbers and categories of leave affected by the changes.
Recommendation 29.
We recommend that Appendix F (Archived Immigration Rules) and paragraphs 276DI to 276AI in Part 7 (Other categories) should be omitted from the redrafted Immigration Rules.
Recommendation 30.
We recommend that an exercise of simplification of guidance should be undertaken in tandem with the simplification of the Immigration Rules.
Recommendation 31.
We recommend that the aim of the exercise to simplify guidance should be to rationalise the number of guidance documents with a view to reducing the guidance on any topic into a single document incorporating guidance both for caseworkers and applicants.
Recommendation 32.
We recommend that an index should be created listing the guidance documents relevant for each immigration category, and giving each document a clear and informative title. This index should be located in one place and clearly conspicuous to a user of the Immigration Rules. It should be accompanied by an explanation for non-expert users as to the difference in the status of the Rules and guidance.
Recommendation 33.
We recommend that guidance should not repeat the Immigration Rules, but instead serve to illustrate how the Rules will be applied. Consideration should be given to the use of illustrative worked examples and flow charts to aid understanding.
Recommendation 34.
We recommend that where a new version of a guidance document is published, changes from previous versions of guidance should be highlighted to make it easier to see what has changed.
Recommendation 35.
We recommend that an archive of guidance should be created with links to previous versions of the guidance and an indication of the period during which a particular guidance document operated.
Recommendation 36.
We recommend that a system of coordinated oversight of the content of guidance should be introduced.
Recommendation 37.
We recommend that consideration should be given to the adoption of a practice of limiting the frequency of publication of guidance so as to coincide with the publication of statements of changes to the Immigration Rules.
Recommendation 38.
We recommend that the Home Office should give consideration to the following steps with a view to improving the accessibility of application forms:
(1) a review of the titles of application forms with a view to making them clear and informative;
(2) clear and non-technical guidance on selecting and completing application forms, which is distinguished from policy guidance;
(3) links from the Immigration Rules and guidance to the appropriate application form;
(4) a review of the coverage of application forms, with a view to providing an appropriate form for any application;
(5) a timetable for the updating of applications forms, to coincide with major Rule changes;
(6) an archive of superseded application forms; and
(7) user testing of application forms and of the interaction between forms, Rules and guidance.
Recommendation 39.
We recommend that the Home Office should work towards producing a single set of Immigration Rules that function as effectively online as booklets through the use of hyperlinks. To the extent that booklets are produced, they should also include hyperlinks as an aid to navigation.
Recommendation 40.
We recommend the use of hyperlinks to link guidance to the Immigration Rules in the online presentation of the Rules. Where Rules are produced in booklet form, these should provide links to the guidance relevant to the immigration category dealt with by the booklet.
Recommendation 41.
We recommend that provision should be made for a facility to view an application form prior to completion, either through provision for a printable version of the form or a facility to navigate through the form online in a version which the system would not allow to be submitted. The wording on this version of the form should indicate where the need to answer a question depends on the terms of a previous answer.
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