The Immigration Rules are the document that set out the precise criteria for granting or refusing permission to enter and remain in the United Kingdom. It is a massively important document, but often people who use it the most (legal professionals, visa applicants) complain that it is very poorly constructed and difficult to understand.
Due to these ongoing complaints the Law Commission has called for major changes to be made to the 1,100 page document (which was initially a much smaller 40 pages), including a complete restructure and a limit on the amount of alterations that are made to the document in the future, as part of the problem is constant small changes that get made to the rules. It makes it extremely difficult to keep up.
The hope is that by improving the drafting, restructuring the layout and removing inconsistencies, the recommendations will make a positive difference by saving money and increasing public confidence in the rules.
What are the changes?
The amount of recommended changes is vast, here are some of the key points that the Law Commission have recommended:
- A new 24-part structure to the Rules, covering definitions, commons provisions and specific routes
- Giving each paragraph a number, rather than a confusing blend of letters and numbers, making it easier to reference
- A new drafting guide, including advice such as “get straight to the point” and “use simple, everyday English”
- An advisory committee to review the text at regular intervals
- Producing “booklets” of the Rules that apply to each visa category (making it easier to find specific information)
- Simplifying and consolidating Home Office guidance documents in tandem with tackling the Rules themselves
- “A less prescriptive approach to evidential requirements”, with lists of accepted and acceptable evidence provided (similar to the approach in Appendix EU)
- Only two statements of changes to the Rules a year, unless there is “an urgent need for additional change”
There is a heavy focus on how the understandable to the general public the new Rules should be.
The Law Commission recommend that the following principles should underpin the redrafting of the Immigration Rules:
(1) suitability for the non-expert user;
(4) clarity and accessibility;
(6) durability (a resilient structure that accommodates amendments); and
(7) capacity for presentation in a digital form.
Barry O’Leary, a member of the Law Society’s immigration law committee, said he was pleased that the commission has taken on board many points made by Chancery Lane and others: ‘We welcome how far they think we should go in terms of redrafting, and acknowledging that the rules need to be suitable for the non-expert user, accurate, clear and consistent.’
It is predicted that these improvements will mean less unnecessary cases for the immigration tribunals and in Home Office casework costs, resulting in up to £70 million being saved annually.
The Law Commission also considered reducing the level of specificity be reduced regarding things such as lists of possible evidence and circumstances when judging cases, leaving the caseworker with more room to manoeuvre. However, the current thought on this is that it would increase levels of uncertainty in the applicants who sometimes want specific guidance on what the need to provide to be successful.
As a compromise the Law Commission recommend “making the lists of evidence contained in the Rules non-exhaustive”. The idea is that the criteria for a given visa would still be detailed, but there would be more flexibility on the evidence required in support of the application.
Maintenance and future alterations:
It has been recommended that the amount of alterations, and the way they are made, is reduced. The Commission has said that consultations with ‘expert groups’ would be beneficial to any changes being considered, as opposed to the relatively ad-hoc way changes are made now. It becomes very hard to follow.
This committee would include “Home Office civil servants, immigration practitioners and organisations representative of non-expert users of the Rules, including those representing vulnerable applicants”. There would also be an online portal for user feedback.
Change made will also be more obvious to spot. When changes are made, it is suggested that the Home Office release a document containing the changes written in red, with the old rules being written with a line through them. This would make it a lot easier to keep track of what has changed.
We will wait and see…
Currently, this is all just based on the suggestions made by the Law Commission to the Home Office – although they are a highly respected organisation who hold a lot of weight and respect. It is likely that much of these recommendations will become a reality.
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