The Immigration Rules meet the Law Commission

20 February 2020

Last month the Law Commission issued Report 388 on Simplification of the Immigration Rules. This followed a year of consultation and examination of the rules with a view to their improvement. It will come as no surprise to anyone who has had even a casual relationship with the Rules that it took the Law Commission 41 Recommendations to express the urgent need for reform and provide guidance for that process. 
 

In its 19 February 2020 policy paper on the future of the UK immigration system the government states that “Alongside this policy statement we will shortly be publishing our response to the Law Commission Report on Simplification of the Immigration Rules which will set out how we propose to provide the foundations for a streamlined and simplified system.”  It is good to see the government acknowledges it should not wait until next year to carefully consider the Law Commission’s report.

The UK immigration system has been under substantial pressure for many years. Indeed, a former Home Secretary, John Reid, stated to a Select Committee on 23 May 2006 that the immigration directorate was ‘not fit for purpose’. The claim has not gone away either. On 29 April 2018, a Home Secretary, Amber Rudd, resigned because of failures to account of her role in the Windrush scandal which led to hundreds of people who had long been resident in the UK being treated as illegally present (with immediate loss of employment, social benefits, access to the NHS etc) or inadmissible to the UK when they sought to return from holidays abroad.  On 6 May 2018, a Scottish Minister, Fiona Hyslop, repeated the criticism – the system is not fit for purpose. This sustained litany of complaints about the immigration directorate and the system run by it has not gone unnoticed. The influential Institute for Government issued a report in March 2019 recommending, in light of the new challenges which Brexit would bring, that immigration responsibilities should be taken away from the Home Office which has proven inadequate in too many respects. This list of bodies which have lined up over the years to criticise the management of the immigration system is long, and this is without the stark criticisms frequently levelled at it by the courts. 

The Law Commission, established in 1965 by statute with the purpose of promoting the reform of the law, has stepped into the fray. Recognising that one of the problems of the immigration system and its management might lie in the law which it administers, the Commission undertook a root and branch review of the Immigration Rules. UK immigration law consists of a variety of levels of legislation and guidance starting with the Immigration Act 1971, which even now, forms the basis of the whole system. Yet, ten further immigration, borders and citizenship acts have been passed since then, none of them replacing the 1971 Act and all of them adding bits and pieces to the framework, amending here, adding there, deleting only occasionally. However, this legislative feeding-frenzy looks most restrained when compared with the next important legislative component of the British immigration system: the Immigration Rules. The Rules are statutory instruments which must be laid before Parliament and are subject to a negative vote procedure. According to one newspaper report, the Immigration Rules have been amended more than 5,700 times between 2010 and 2018 (The Guardian, 27 August 2018) and doubled in size. But UK immigration regulation does not stop there, it also contains Operational Guidance issued by the Home Office which runs to hundreds of pages and is designed to clarify the rules (which give effect to the Acts). Faced with such a welter of material, the Law Commission restricted itself to examining the simplification of the Rules and the Guidance. 

One word dominates the whole report: complexity. According to the Law Commission, the biggest problem lies here and it is because of this complexity that the system is in such shambles. The Commission identifies as the basic principle which the rule of law requires of the Immigration Rules is that applicants should be able to understand the requirements they need to fulfil. This is impossible because of the complexity of the rules themselves. Two themes run through the whole report – first how to build trust in the decision-making process to which immigration applications are subjected (including the pressing need for transparency) and secondly how to transform the Immigration Rules and guidance into a discrete body which is both coherent and consistent in all its parts. To achieve these objectives, the Law Commission recommends seven principles which should underpin the overhaul of the system. The redraft should aim for: suitability for the non-expert user; comprehensiveness; accuracy; clarity and accessibility; consistency; durability and capacity for presentation in a digital form. The list itself gives some indication of the problems which the Commission discovered in its investigation. These include instances where the Guidance contradicts the Rules rendering it impossible for the user to know how to comply with the law; the lack of any system to search an archive of earlier versions of the Rules, a necessity for any user with a long immigration history; no clear or consistent approach to providing information about the date when a change to the rules comes into effect; incoherent number of provisions of the Rules and a lack of uniformity in the number of Appendices; failure to follow standard legislative drafting practice for insertions into the Rules, the list goes on. 

Some of the recommendations of the Commission are particularly chilling as they indicate practices which are most dubious. For example, the Commission recommends that a team of officials at the Home Office should be given responsibility for maintaining drafting consistency in the Rules. This indicates that there is no such body in existence at the moment. It also recommends that there should be a straightforward and consistent approach to the location of definitions. Further, it proposes that any differences in wording and effect between Rules covering the same subject matter should make clear what, if any, difference in effect is intended. An audit of overlapping provisions is suggested as the way to resolve this problem, which appears to be rife throughout the Rules. 

The issues identified by the Law Commission are no doubt challenging for the Home office, but the cost of failure to address them is high indeed. Not only does the Law Commission suggest that financial savings of £70 million over ten years are likely to accrue from an overhaul along the lines it proposes, but it also considers the human cost of the complexity of the system which creates anxiety and can have devastating consequences for applicants and their families. 

The 41 Recommendations which the Law Commission makes are designed to help the Home Office regain the trust of users of the system as well as the public at large that UK immigration decision-making is both compliant with the rule of law and fair. They deserve to be embraced by the Home Office and steps should be taken as quickly as possible to start implementing them.  

Once the government responds to the Law Commission’s report, we will keep you updated on developments.

About the Authors

Elspeth Guild is a partner in the immigration team best known for her expertise in the field of European Union free movement of persons, immigration and borders law and practice. She is widely recognised as an expert in her field.  Elspeth is also a law professor at Queen Mary University of London and regularly teaches lawyers and judges in the EU on issues of EU borders and migration law and acts as an expert for international organisations such as the Council of Europe, UNHCR, and the European Commission and Parliament. 

Tim Richards is a professional support lawyer in the immigration team. He is a solicitor with extensive experience in corporate and private client immigration matters and is responsible for the knowledge management and ‘know-how’ development for the immigration team.

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