In its recent report, the Law Commission has addressed the issue of the complexity of the Immigration Rules and their gradual evolution over the past forty years, expanding from the original 40+ pages initially to over 1,000 pages today. The overall theme of the report is that the Rules, guidance and the application procedure should be simplified as much as possible. The report advocates a better use of technology, such as developing a user-friendly online platform to deal with applications.
Please note that this blog is not a comprehensive review of the recommendations set out in the report, and highlights only the points that we consider to be of particular interest.
Over the course of 2019, the Law Commission consulted various bodies, ranging from those having to apply under the Rules themselves to lawyers, judges and higher education providers, in order to better understand the problems and issues, and use their input in making its recommendations.
The respondents to the consultation agreed that the Rules should be designed and drafted in a way that did not require a legal background to understand them. The Law Commission recommended that they should be suitable for non-expert use, be comprehensive and accurate, as well as being clear, accessible and consistent. It has also been recommended that their structure should be resilient enough to accommodate future amendments, and have the capacity to be presented in a digital format.
The report highlighted the issue of redrafting the Rules in a user-friendly manner as they are used by millions of people every year and have the potential to affect their lives significantly if not complied with or interpreted correctly. Concentrating on the issue of accessibility and drafting of the Rules rather than their substance, the report signals the need for future reform in light of the Law Society’s view that even some senior judges and legal practitioners admit to struggling to interpret and apply the Rules, let alone people with no legal training whose first language may not be English.
The Commission noted that any newly designed structure might erode over time as more changes to the Rules are introduced. It therefore proposed setting up an informal advisory committee whose primary task would be to ensure that the complexity of the Rules was kept within reasonable bounds. It is envisaged that this advisory committee would concentrated on the simplicity and clear drafting of the Rules, and that it would have no say or input in forming immigration policy itself.
In terms of changing the actual presentation of the Rules, the Commission recommended identifying a core structure to be used by drafters with easily identifiable sections. There are also a series of recommendations on how the Rules should actually be drafted – for example the need to avoid cross-referencing as much as possible. Moreover, it was recommended that the frequency of any changes to the Rules should not exceed two times a year unless there were compelling circumstances justifying immediate changes.
In addition, the Commission proposed appointing a specialist team to produce online booklets for each category of application. These should make the use of the Rules more straightforward, whilst demonstrating a commitment to a more user-friendly approach. It is presumed that these booklets will be regularly updated to include any amendments as and when they are published.
The Commission also emphasised that the impenetrable level of complexity in the existing Rules was, among other things, due to the general policy of articulating every detail in the body of the Rules, especially in respect of the evidence required. The Law Society believe that making clear what is required safeguards the applicant from potential arbitrariness and reducing the possibility of different caseworkers reaching different decisions. While acknowledging this view, the Commission recommended that the Home Office consider introducing, where appropriate, open-ended and non-exhaustive lists of evidence or adopting a tiered approach to indicate what type of evidence will or will not be accepted.
Finally, a major emphasis of the report is on the development of a user-friendly online system that will assist users in navigating their way to the necessary sections of the Rules. The Commission recommended that any set of Rules should be capable of being both effective in an online system and having the flexibility to be reworked into a booklet. There are currently issues with the present system where it is sometimes hard to say under which version of the Rules an application has been made. The Commission recommended that this would need to be addressed in a future system, enabling easy access to earlier versions of the Rules, with a function in place to indicate whether an earlier version of the Rule was available and when that previous version ceased to have effect.
It remains to be seen whether any of these recommendations will actually be implemented. Although scrapping the current system may sound challenging, the benefits that will follow surely make it worth trying.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
© Gherson 2020