Law Commission recommends complete redrafting of immigration rules

Jan 22, 2020

According to the Law Commission’s report Simplification of the Immigration Rules, published on the 14th of January 2020, improvements to the way immigration rules are written and presented would make it easier for applicants to follow and save the government almost £70 million over ten years.

written by Judit Adorjan

The report calls for a total rewrite of the rules with the aim of creating simplified and more easily accessible rules that offer increased legal certainty and transparency for applicants. The last such exercise took place in 1994, over 25 years ago, and the current version of the rules has grown hugely and somewhat chaotically since then.

Why is change needed?

In recent years, a policy requiring the rules to be more prescriptive had been implemented, which made the rules longer and more complicated. Introduced in 1973 with 40 pages, by 2019 this had grown to over 1,100 pages. The structure is confusing, and the numbering system inconsistent. There is duplication and unnecessary repetition, all of which make it difficult for applicants.

What are the recommended changes?

The report’s 41 recommendations include improvements to the structure, drafting and maintenance as well as a twice-yearly limit to updates. These also extend to how the rules interact with supporting guidance and application forms.

Consultation on the simplification project launched this time last year and set out two possible approaches to the structure of the rules. The first was to put “common provisions” up front, followed by particular rules for each route. The second was the “booklet” approach i.e. to put all rules applying to a given route under one heading, even if that means a lot of repetition. The Law Commission has not indicated a choice between these two options in the final report.

The recommendations do not extend to changing any of the policies expressed in the rules. However, the report does recommend that “suitability for the non-expert user” be among the priorities when redrafting the rules. The Law Commission also suggests reducing the level of “prescription” in the rules, thus allowing caseworkers more flexibility to accept evidence required in support of the application.

The report also looks at how to stop this situation reoccurring and suggests that consultation with an informal review committee. The committee members could include Home Office civil servants, immigration practitioners and organisations representative of non-expert and vulnerable users of the rules and “could play an important role in controlling complexity and promoting consistency and certainty”.

The report goes on to say that “the publication of changes solely as a list of amendments and additions contributes to making the effect of changes difficult to understand”. Therefore, the remedy is for the future statements of changes to include a “Keeling schedule”.

What happens next?

Former Home Secretary Amber Rudd initiated the review by the Law Commission. It is unclear whether the current Home Secretary Priti Patel will implement the recommended changes. There has not been a formal response from the Home Office at this time.