It is hoped that the rewrite will improve transparency, legal certainty and will cut costs
The Law Commission’s report on the simplification of the Immigration Rules (the “Rules”) has called for the overly complex and unworkable document to be pared down.
The Rules set out the criteria for the grant or refusal of permission to enter and remain in the UK, and is the single most important legal instrument for the day-to-day navigation of immigration law. Having almost quadrupled in size in just the last ten years, the Rules have become unwieldy and, for some time, have been a source of frustration for applicants, lawyers, and judges. The need for simplicity and clarity has become more pressing particularly in light of the fact that more applicants are unrepresented and find it difficult to understand proceedings. It is a basic principle of the rule of law that applicants should understand the requirements they need to fulfil.
The result of a consultation period that was launched a year ago under the direction of the then Home Secretary Amber Rudd, the Law Commission has recommended the restructure and rewrite of the 1,100-page long Rules, that its drafting be improved and that fewer revisions be made to it in the future in the hope that these changes will remove inconsistencies, save money and increase public confidence in immigration procedure. An impact assessment published separately concludes that the financial savings to government, in terms of reductions in unnecessary cases for the immigration tribunals and in Home Office casework costs, would amount to £70 million over ten years.
The report set out two possible approaches for a revised structure: either place the common provisions up front followed by the particular rules for each route, or collect all of the rules that apply to a given route together under a single heading, even though this would mean some information is likely to be repeated. Other recommendations include:
- A new 24-part structure to the Rules, covering definitions, commons provisions and specific routes followed by seven appendices.
- Numbering each paragraph rather than using a confusing blend of letters and numbers and avoiding cross-referencing unless strictly necessary.
- The creation of a new drafting guide including the use of simple, everyday English.
- Reducing the level of prescription in the Rules to allow more decision-making power by caseworkers.
- The creation of an informal review committee made up of civil servants, immigration practitioners and organisations, and representatives of non-expert users of the Rules who would review the text at regular intervals in a bid to control its complexity and to promote consistency and certainty.
- The concomitant simplification and consolidation of Home Office guidance documents.
- Making evidence lists non-exhaustive and providing examples of accepted and acceptable evidence.
The Law Commission’s remit did not extend to changing any substantial policies of the Rules, but the report suggests limiting the number of updates to the Rules to two statements of change per year unless there is an urgent need which is intended to prevent the Rules from becoming too complicated. For ease of reference, it has also been suggested that future statements of changes should include a visual record of all tracked changes.
It is likely that the recommendations in the Law Commission’s report will be postponed until after the UK’s new immigration system has been implemented as it would be inefficient to substantially re-write the Rules now if the exercise will have to be undertaken again in the near future.
