The Law Commission Report
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
The Law Commission has published a report on simplifying the Immigration Rules. The problem with the Immigration Rules is that hundreds of thousands of life-changing decisions are made under these Rules, but the Rules are widely criticised for being long, complex and difficult to use. In 2019 the Rules totalled over 1,100 pages with poor drafting. The Law Commission headed by Nicholas Paines QC had a project to consider how the Rules can be made simpler and more accessible to the users. The project began in 2017, the Consultation Paper was published on 21st January 2019 and the Government responded to it on 25th March 2020. The report recommended a complete re-drafting of the Rules with the aim of creating simplified and more easily accessible Rules that offer increased legal certainty and transparency for applicants. The recommended changes included improvements on how the Rules are structured, drafted and maintained.
The report also recommended that the Home Office considers introducing a less prescriptive approach to evidence required from applicants. By reducing the level of detail and prescription, there was hope that there would be a need for less frequent amendments of the Rules.
At Danielle Cohen Solicitors we are familiar with the Immigration Rules and the problems they present to our clients. The purpose of this article is to highlight a few of the difficulties and the recommendations made by the Commission.
Introduction to the Immigration Rules
The Immigration Rules regulate the entry into and stay in the UK of people who are subject to Immigration control. The Rules have become longer and more complicated in the last 10 years and they have been criticised by Senior Judges. The structure is confusing, the numbering inconsistent, provisions overlap and the drafting style is poor. The basic principal of the Rule of Law is that applicants should be able to understand what the requirements are so that they can fulfil them. If the Rules were simpler the Home Office would also benefit as immigration officers could make better and speedier decisions. They would have to defend less refusals, appeals and Judicial Reviews.
Recommendations of the Law Commission
The Commission suggested that accessible Rules need to be linked to guidance and application forms so as to build transparency and improve decision making. In addition they recommended that training for caseworkers was necessary to make the shift from the mandatory mind-set to a more flexible evaluation approach. Decision making structures need to build in quality assurance control to ensure consistency of approach and with enhanced trust in decision making, there might be scope to reduce the level of prescription in the Rules further. Whatever the cost of doing so, the impact will be to save time and money for the Judicial system as a result and a reduced number of appeals. As solicitors, we would like to emphasise the need to save money for the applicants and all the non-financial benefits which will be generated to our clients by having the ease of navigating the system and not having errors made on their applications.
One of reasons for mistakes being made by applicants is their inability to correctly identify the evidence required for the applications. One of the reasons that the Rules are so complicated is the frequency of the changes to the Immigration Rules themselves and because of the difficulty of keeping up with the changes. A Judge stated “The Rules have become lengthier and more complex by frequent additions and alterations with lettering and numbering that does not follow sequentially”. Another reason that the Rules are so complicated is the attempted codification of Article 8 ECHR within the Rules. The Home Office try to put the qualifying criteria into the Rules, however, in our view there is a limit to what can be achieved to re-drafting the Rules in order to take into account human rights arguments.
Lord Scott of Foscote already stated in the case of Chikwamba “Policies that involve people cannot be, and should not be allowed to become, rigid inflexible Rules.” We share the observations of Amnesty International UK that Rules do not achieve justice if they are made and applied without due consideration to their impact on people. In addition, the Commission found the reason policy and Rules have become so complex is because it has not been in the mind of those responsible for setting the policy how it will later be implemented.
We are very concerned that the complexity and length of the Rules can be used by the Home Office to refuse applications. It may be an end in itself, but to have Rules which are so complex is to in effect ban a category from ever existing. A key example is the ‘adult dependent relative category’ which is now extremely complex and usually requires intervention by practitioners and by the Tribunal. The Joint Council for the Welfare of Immigrants commented on Appendix FM-SE as an example of what might be considered the reactive drafting, which leads to highly prescriptive and arguably over detailed requirements. The idea behind the policy is that those who have a family life in the UK should be able to integrate without recourse to public funds and therefore will not be a burden on the state. However, at the moment we have a non-sensical example that wages paid cash in hand and not immediately paid into a Bank account cannot be recognised and the evidential requirements appear to undermine the whole purpose of the Rules. In our view the complexity that is generated by requiring so much evidence results in litigation, and should be separated from the political desire to exercise control over the number of applications which are successful.
We support the suggestions by JCWI who suggested that there should be greater flexibility, and that the Rules should set out the forms of evidence, which if met, require the decision maker to accept the criteria as satisfied and in the absence of specified evidence, to allow any other evidence to be submitted and to require the decision maker to take a holistic view and decide on the balance of probabilities.
The Commission findings consist of 232 pages and the response from the Home Office was published in March 2020, which stated that the Home Office would look at the drafting and structure of the Rules and a new committee would ensure the simplification principles put into place.