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UK Immigration Rules Not Fit For Purpose

"Overly complex and unworkable". This is how the UK's independent legal review body has described the Immigration Rules in a report released on 14 January 2020.

The Law Commission's conclusions following extensive consultations were not positive and highlighted what immigration lawyers, judges, and support groups have been saying for years - the system is not fit for purpose.

Now extending to 1,100 pages, the Immigration Rules is the statutory instrument that governs immigration law in the UK. It sets out the criteria for non-UK citizens being able to enter and remain in the country.

The last time the Immigration Rules were comprehensively redrafted was in 1994. Since then, amendments and changes have been tacked onto various parts and sections, making it virtually incomprehensible for ordinary people.

Public law commissioner Nicholas Paines QC stated of the quadrupling of the size of the Rules in the last ten years: "This has resulted in mistakes that waste time and cost taxpayer money."

Stating that the Rules need to be streamlined, Mr Paine QC commented: "By improving the drafting, restructuring the layout and removing inconsistencies, our recommendations will make a real difference by saving money and increasing public confidence in the rules."

Distrust among migrant groups

Consultation respondents told the Law Commission that many people distrusted the current immigration system.

"Coram Children's Legal Centre and Let Us Learn referred to longstanding and historic distrust of the Home Office amongst their client group, young vulnerable asylum seekers and migrants, with clients in outreach advice sessions expressing anxiety at the decision-making process and the perception that the Home Office tries to refuse applications rather than looking to allow them.

"They referred to the high success rate in tribunal appeals. Similarly, the Joint Council for the Welfare of Immigrants expressed distrust of the culture within the Home Office, and the pressure under which caseworkers operate, saying that 'caseworkers have very little training', are often very short term, and are under clear pressure, even if denied by ministers, to refuse applications."

Last year, figures showed that over half of all immigration and asylum appeals succeeded. This illustrates the poor quality of Home Office decision making. And these incorrect decisions have catastrophic consequences for migrants. Unable to work, access healthcare, rent a home - they often live in limbo for years. Some are unfortunate enough to be left languishing in detention centres for months, waiting for there appeal to progress through the Tribunal.

This is the human cost of the UK's messy, virtually unfathomable Immigration Rules.

Shorter, smarter, simpler

The Law Commission recommends that the Immigration Rules be redrafted using language and structure designed for a non-expert user. However, the Commission pointed out that the term 'non-expert user' did not fit nicely into a specific category. Some migrants may be particularly vulnerable, having been abused or trafficked. Others may not speak English well or have mental health issues. Therefore, there is no "one size fits all" approach".

Most of those who responded to the consultation which proceeded the report stated that the complexity of the Immigration Rules led to mistakes. Bear in mind that respondents included immigration caseworkers deciding on applications.

"The view most clearly expressed was that their complexity results in applicants failing to understand the eligibility criteria and evidential requirements for a successful application. Mistakes not only arise from the internal complexities of the Rules, but also from difficulties in navigating guidance and application forms."

Benefits of shorter, simpler Immigration Rules containing fewer amendments would include easy navigation, reduced costs, and a more common-sense approach to decision-making. However, respondents to the consultation recognised that these benefits would need to be balanced with the requirements for consistent decisions and full transparency.

The Law Commission's recommendations for improving the Immigration Rules

The report makes 41 recommendations, including:

  • "Overhaul" the Immigration Rules.
  • The following principles should underpin the redrafting of the Immigration Rules:
  • suitability for the non-expert user;
  • comprehensiveness;
  • accuracy;
  • clarity and accessibility;
  • consistency;
  • durability (a resilient structure that accommodates amendments); and
  • capacity for presentation in a digital form.
  • A less rigid approach should be given to evidence requirements - for example, non-exhaustive lists can be included in some categories where documentary evidence is required.
  • Where evidence requirements are less prescriptive, there should be details of categories of evidence the decision-maker may consider.
  • The creation of a booklet of definitions.
  • Subheadings should only be used if they add to the clarity and understanding of the text.
  • Each Part should include a table of contents.
  • Drafting should use everyday English and concise language.
  • Reduce Statements of Change (which amend the Rules) to two per year.
  • Avoid cross-referencing paragraphs and ensure the wording "states directly what they [the paragraphs] intend to achieve."
  • A structured process for feedback should be designed to ensure identified problems are swiftly rectified. This could be in the form of an online portal.
  • An exercise of simplification of guidance should be undertaken in tandem with the simplification of the Immigration Rules.
  • The Guidance should not simply repeat the Rules but detail how a particular Rule should be applied.

Protecting future Immigration Rules from becoming unwieldy

The Law Commission recognised that a one-off fix of the Immigration Rules will not be of much use if they are allowed to become monstrously clumsy within a few years. To avoid such an occurrence, it is recommended that discussions with expert groups "could play an important role in controlling complexity and promoting consistency and certainty".

Will the recommendations be implemented?

The Home Office has a LOT of work to contend with at present. An entire new immigration system is being designed to deal with EU/EEA nationals who theoretically, from the end of December 2020, will need to apply for a visa if they wish to stay in the UK to work or live for more than six months.

Given that the recommendations provided by the Law Commission are comprehensive, and that nothing is achieved at speed by Whitehall, we hazard a guess that we will have to live with the Immigration Rules as they are for some time yet.

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