17 January 2020

The Law Commission released its report earlier this week setting out its recommended changes to make the Immigration Rules navigable, fair and clear for all who use them.

Over the course of 2019, the Law Commission consulted with individuals and stakeholders to define whether and what changes should be put into place, limiting its review and recommendations to the structure and format of the Rules, rather than substantive immigration policy. Respondents to the consultation were unanimous in their desire to see a complete redesign of the Immigration Rules.

We highlight five key recommendations and add our commentary.

1. Restructure the Rules

Since their introduction in 1973, the Immigration Rules have been constantly amended, extended, appended and reinterpreted. Aside from rendering the Rules less accessible, this has promoted uncertainties in their use and application.

Key terms or requirements are imprecisely duplicated across categories, giving rise to multiple interpretations and speculation as to whether this is intentional.

The Law Commission proposes changes are made to reduce length, improve navigability and create a common section of definitions and key universal requirements which appear as word hyperlinks within specific Rules.

In addition, it has set suitability for the non-expert user, comprehensiveness, accuracy, clarity and accessibility, consistency, durability and design with digital form in mind as key principles which should underpin the redrafting of the Rules and guidance.

2. Make the Rules less prescriptive

The Law Commission recommends a less prescriptive approach to drafting, again to improve length, readability and common-sense decision making.

However, there is a careful balance to be struck; a less prescriptive approach to Rule drafting should not be at the expense of clarity. A loss of clear definitions of terms and evidentiary requirements carries the risk of increasing subjectivity and an inconsistent application of the Rules from one application to another by caseworkers. At the same time, overly prescriptive requirements in the Rules belie a caseworker’s overriding discretion to waive or vary requirements in response to real-world facts. The Law Commission acknowledges this concern and limits its recommendation to making requirements less prescriptive only where they are still clear and not disadvantageous for applicants.

3. Easier navigation and readability

The next recommendation is to use shorter, indicative section titles, a table of contents and a clear and sequential indexing or numbering system. Individuals who are not used to navigating the current Rules can have serious difficulties understanding which paragraphs apply to them and how different areas interconnect, particularly due to extensive use of cross references within a Rule to other parts of the Rules.

A shift towards the use of full paragraphs containing all key terms, using plain language and natural meanings would significantly increase accessibility and decrease mistakes by applicants and caseworkers alike.

4. Clearer management and presentation of Rule changes

At present, the Immigration Rules may be changed at any time in the year.  Historically, the Home Office published changes quarterly, however this has become more erratic in recent years.

Statements of Changes to the Immigration Rules are published in a separate area of the Home Office website with no notice of forthcoming changes in the live Rules themselves. As a result, non-experts are typically unaware of forthcoming Rule changes and are unable to plan accordingly.

Once located, proposed changes are referenced by a double system of paragraph numbers and Rule numbers and identify only individual words or phrases to be changed within Rule. The exercise of decoding proposed changes is a time consuming task even for the most seasoned of immigration lawyers.

The Law Commission proposes a limit of two Statements of Changes per year, in which all alterations are grouped. We would urge careful consideration of this before implementation, as having a mechanism by which Rules may be adapted responsively to errors and a changing political, social and technological landscape benefits the Home Office and applicants alike, provided it is used reasonably.

We suggest better use of technology to place Rule changes within the context of the live Immigration Rules themselves (eg display proposed changes alongside the current Rules, effective after a certain date) could increase transparency and accessibility of the changes for everyone.

We strongly agree with the Law Commission’s other recommendation to create a quicker and more efficient feedback system to eliminate and correct technical or practical issues which arise from Rule changes as soon as possible.

5. Create a one-stop reference system

The Immigration Rules preside over a complex system of application forms and separate policy documents which provide interpretative, procedural and operational guidance to applicants and caseworkers. Presently, an applicant should read and comply with all of these sources to make a successful application, yet none of these items are located in the same place or refer directly to each other and may be easily missed by the non-expert.

We agree with the Law Commission’s recommendation of a central index and connect these resources to each other in an easily accessible way. However, there is a justifiable purpose and need for dedicated technical guidance for caseworkers, separate to that used for applicants, provided that the requirements and terms within them are consistent.

Conclusion

The Law Commission was sharp in pointing out deficiencies and recommendations for improvement on the current Immigration Rules.

Moreover, once EEA nationals fall within the planned new universal immigration system, clear and accessible Rules will be essential to avoid unnecessary litigation and a crisis of confidence in the UK Government by applicants, businesses, schools, universities and British citizens and their migrant family members, all of whom rely on the Rules’ clarity, certainty and fair and proper application to function.

We invite the Government to treat these recommendations as a solid starting point in its structuring of the new immigration system intended for 2021.