The Law Commission, a statutory independent body which conducts research and consultations in order to make recommendations to the Government, is reviewing how to simplify the Immigration Rules. On 21 January 2019, a public consultation will open.
The Law Commission is made up of experienced judges, barristers, solicitors and teachers of law. The body, in general, reviews areas of law in need of reform as referred to by Government departments. Views from judges, lawyers, Government departments, voluntary sectors, business sectors and the public can be taken into account during this process.
At the end of the review the Law Commission submits a report outlining recommendations and advice to the relevant Secretary of State. Although the Government is not obliged to makes changes in light of the report, in many cases it does.
Complex Immigration Rules
The Immigration Rules are the basis for regulating the entry and stay of those who do not have the right of abode in the UK. They apply to those seeking to work, study, join family members and to many other categories of people who wish to enter or remain in the UK. The Law Commission reports that the Immigration Rules now total 1133 pages and have quadrupled in length in the last 10 years.
The Immigration Rules can be complex for applicants and legal representatives alike. In some sections the numbering systems are extremely poor, in other areas there are large sections of repetition and the language used throughout can often lead to confusion.
The policy and caseworker guidance documents, which are published for each category of leave under the Immigration Rules, are supposed to provide greater clarity. However, these documents can add more confusion, especially when the document does not sufficiently explain the requirements of the Immigration Rules or conflicts with the Immigration Rules.
In the case of Pokhriyal v Secretary of State for the Home Department  EWCA Civ 1568, the judge even went so far as to state that the “provisions have now achieved a degree of complexity which even the Byzantine emperors would have envied”.
It is interesting to note that the Law Commission is already suggesting that a less prescriptive approach could be utilised. In the Consultation Paper it is set out that in appropriate places the Immigration Rules could be expressed in flexible and general terms with ‘structure exercises of discretion’ for caseworkers. This is an interesting suggestion that seems to conflict with the increasing rigidity of the Immigration Rules and guidance documents.
In its Consultation Paper, available here, the Law Commission has outlined that it will not consider substantive immigration policy and its terms of reference will be to:
- review the Immigration Rules to identify principles under which they could be redrafted to make them simpler and more accessible to the user; and
- consider structure and drafting of the Rules, the timing and frequency of amendments to the Rules and the division of material between Immigration Rules and guidance.
The inclusion of EU citizens in the Immigration Rules
When the UK leaves the EU, the regulation of EU citizens and their family members who come to the UK will be regulated by the Immigration Rules rather than EU law, as now. A brand new future immigration system is being designed.
Appendix EU has already been incorporated into the Immigration Rules and relates to EU citizens and family members who apply, on a voluntary basis for now, under the EU Settlement Scheme.
This is therefore an opportune moment for a review of the Immigration Rules in light of the increased number of people who will use them.
We encourage employers, education providers and individuals who must navigate the Immigration Rules to take part in the consultation. Responses must be filed by 26 April 2019.
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