Our Immigration Law Committee has been involved in the Law Commission’s investigation of the Immigration Rules for over two years, since before the project was formally launched.
Our input at early stages helped guide the Law Commission on the areas it needed to focus on and highlighted concerns and issues early on, as well as providing historical context for how we got to the current point.
Now that the Commission’s report has been published, we look at the proposed changes and how they reflect our views.
In April 2019, we responded to the official consultation on the simplification of the Immigration Rules.
The Law Commission’s report has now been published, and supports our view that the rules need a complete overhaul to improve legal certainty, transparency and access to justice in immigration law.
The need for simplification
The Law Commission recognised the impact of “overly complex and unworkable” law on our members, as we highlighted that the rules are so incomprehensible that they are inaccessible to many applicants and confuse even expert legal practitioners.
The Commission noted that “the risk of poor-quality advice is exacerbated by the complexity of the Rules”, recommending that they should be suitable for the non-expert user.
Nevertheless, the Commission recognised the importance of ensuring that the simplification exercise should not be reason to further restrict legal aid in immigration matters. It agreed that “where the substantive content of the Rules is complicated, access to good legal advice remains necessary”. It observed that “the substantive content of many Rules itself is complicated” and “clever drafting only goes so far”.
Real-life experiences of our members were quoted in the report to demonstrate the problems that the rules can cause. An example was the slight misinterpretation of unclear wording relating to financial requirements, which resulted in a married couple being separated for almost 12 months.
The overall savings across government if the proposals are implemented are predicted to be £70 million over ten years, as set out in the impact assessment.
Prescriptive versus discretionary approach
We were pleased to see the Law Commission recommending what we feel is a level of sensible prescription within the rules, having referenced our 2017 visit to the Home Office in Sheffield.
During this visit, we saw in practice the danger of a discretionary approach via the ‘enrichment’ process whereby an algorithm assigns a level of risk to a case pre-consideration. This results in some nationalities arbitrarily being treated more harshly than others.
This is compounded by the difficulties of being too prescriptive. We highlighted this in the case of evidential requirements relating to payslips. The Commission recognised this issue, and recommended that the secretary of state should “make the list of evidence contained in the Rules non-exhaustive” in the areas which he or she considers appropriate.
This ‘checklist approach’ would give our members legal certainty balanced with a degree of reasonable discretion.
Content of overviews
The Commission amended its proposed drafting guide in relation to how the government should approach the overviews that appear at the start of each chapter in the rules.
This followed our recommendation that these should be limited to factual content, and use a ‘table of contents’ format as opposed to free text. This would prevent unclear, often inconsistent “policy objectives” from being inserted into the Rules, promoting legal certainty.
The Commission also cited our contributions on the extensive difficulties created by the complexities of immigration guidance and the lack of cross-referencing. It recommended that an overhaul of the rules take place alongside the simplification of the system in which they operate.
Use of technology
We gave our views on the potential to simplify the immigration system through use of modern technology, citing the outsourcing of visa application services which have caused significant issues for our members and their clients.
These include technological issues during uploading documents, anomalies in form requirements and the inability to check whether documents have been uploaded.
In our opinion, significantly more preparatory work, testing and consultation are vital in the future to ensure that the use of modern technology results in progress as opposed to regression.
The role of consultation
Our views on the importance of greater consultation were adopted, as we suggested a “dedicated arena for feedback” for the Home Office to receive and react to live issues in an effective, timely manner.
Recognising that consultation with expert groups “could play an important role in controlling complexity and promoting consistency and certainty”, the Commission suggested an online portal and “a more structured process for… user feedback” alongside an “advisory” monitoring review committee.
As quoted in the report, it is important that the Home Office is receptive to both positive and negative feedback.
We look forward to the government’s response to this report and commend the Law Commission on this urgently needed review of the Immigration Rules.