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.