The Law Commission Report on Simplification of the Immigration Rules: Proposals to reformat the Immigration Rules fail to tackle the hard issues
The Immigration Rules define the day-to-day administration of the UK’s regime of visas to enter and remain in the UK. The current Immigration Rules, which have increased in length from 300 pages in 2008 to 1133 pages in 2018 (Simplification of the Immigration Rules Report (Report), 4.1), are ‘overly complex and unworkable’ and their structure, drafting style and cross referencing is ‘impenetrable’ (1.1). The Report investigates the drivers of complexity and identifies them as the frequency of changes to the rules (4.11), alongside the introduction of the Points Based System, the codification of Article 8 ECHR family life and the judgment in Alvi (4.12). But complexity and inaccessibility of the rules is a conscious policy decision, not just a product of litigation (Manning and Collinson, 2019), and tackling this policy is beyond the scope of the report (1.4). Thus while the Law Commission’s proposals tackle the Immigration Rules’ lack of accessibility and accuracy (with recommendations as to their clarity, presentation and oversight), these fail to address the underlying threat to the rights of migrants from the Home Office’s refusal culture and the lack of judicial oversight.
Terms of reference
The complexity of the Immigration Rules was identified to cause problems, including mistakes made by applicants, particularly in failing to understand the eligibility and evidential criteria in the rules (3.4). Confusion between the rules and guidance was reported alongside difficulties in identifying the correct application form (3.15). Mistakes are not confined to applicants but also made by other groups, including legal professionals and the Home Office (3.17-18). While the Home Office view prescription as commensurate with consistency, even a Home Office Presenting Officer admitted that the policy caused more problems that it solved (para 4.26).
The Law Commission’s terms of reference include identifying principles to make the rules simpler and more accessible, reviewing their drafting and structure, as well as tackling the underlying causes of complexity. They do not address immigration policy or the statute underlying the rules (1.4). However, many respondents noted that immigration policy itself is a cause of complexity, alongside the leadership and culture directing decision-makers (4.12). We argued that it is insufficient to merely simplify the rules without changing the policy of prescription if any lasting impact is to be ensured (4.20).
The recommendations of the report relate more to structure and form, rather than significant changes to the content of the rules. Recommendations are made to overhaul the rules with reference to their comprehensiveness, accuracy, accessibility, consistency, durability, ability to be presented digitally and suitability for users (2.3 and 2.58). Changes of content include a less prescriptive approach to the evidential requirements, in the form of non-exhaustive lists of suitable evidence (5.133). These lists will include evidence that will always be accepted and evidence that is potentially suitable when adopting a more purposive approach to the rules (5.134).
The later recommendations relate more to the structure of the rules, increasing clarity and keeping the rules under review. Recommendations are made to make the rules more user friendly, including dividing the subject matter differently (6.31), identifying inconsistencies (6.45), and highlighting differences in the guidance (6.100).Consolidation into a single set of immigration rules is propounded (6.91) and producing paper and digital booklets for each category of applicant (6.92). Further recommendations relate to consistency of titles and subheadings (7.7 and 7.13), tables of contents for each part of the rules (7.27), simplified numbering (7.38, 7.43, and 7.60), use of hyperlinks and signposting (7.43 and 7.77) and providing statements of the date on which a rule comes into effect (9.20).
The report explores the tensions between a more prescriptive approach and greater discretion in this important area of administrative law. Less prescription may improve ease of navigation, make time and cost savings and permit a more purposive approach to decision-making. However, it could also reduce certainty, clarity and transparency. Inconsistency between caseworkers was viewed as a risk, alongside complexity returning to the guidance, possibly breaching Alvi (5.4). Whilst increased subjectivity in decision-making could trigger greater litigation (5.4), Judicial Review is insufficient to compensate for the curtailment of appeal rights in the Immigration Act 2014 (5.112). Wednesbury unreasonableness is too high a threshold to prevent irrational decision-making (5.113).
The Commission analyse different approaches to prescription in the report (5.5-5.13). These range from retaining a highly prescriptive approach to permitting significant subjectivity, neither of which is ideal. A more nuanced approach is propounded, with flexibility to alter the level of prescription in accordance with the immigration category under consideration (5.12). While some categories lend themselves well to greater discretion (such as the more discretionary provisions in Appendix EU: 5.18 and 5.20) other highly discretionary provisions (such as genuineness and intention to leave at the end of a visit visa) have resulted in some harsh decision-making which could not be overturned unless irrational (5.31 and 5.38). The Commission identify a need to build trust in decision-making and to create a more accessible and transparent system before reducing prescription more extensively than is proposed (1.44).
The Law Commission’s report does acknowledge that the Immigration Rules exist in a much wider context. There is a universe of policy, politics, application forms, and real-life applicants, with which the Immigration Rules interact. At the outset of the report, the Commission decide to expand their implied terms of reference as it:
could not properly consider the complexity of the Rules from the perspective of the user in isolation from complexity in the system of guidance and application form in which they are embedded. (1.5)
The Report recommends that the guidance is simplified alongside the rules (10.60), producing only a single document for each topic (10.61) and providing an index of guidance documents conspicuous within the rules (10.62). Greater co-ordination between the rules, guidance and application forms is suggested, including use of hyperlinks to increase accessibility (10.103, 11.17, and 11.29).
To reduce amendments, a policy restricting rule changes to twice a year is suggested (8.90) and an internal review committee is proposed (8.47). Alerts are recommended to identify pending amendments to the rules, whilst referring to the rules that they will affect. Explanatory memoranda accompanying amendments should be sufficiently detailed and accessible to non-expert users (8.66). Additionally, a more structured approach to receiving and responding to feedback from users to rectify problems is recommended (8.48).
The debate as between discretion versus prescription in the Immigration Rules takes place in a broader political context. In our evidence to the Commission, we highlighted that ‘a discretionary Immigration Rule can only work well if the decision-makers approach their decision-making task in good faith, with adequate training and appropriate insight.’ Home Office decision-makers are under pressure: ‘deep cuts and downgrading in Home Office staff’ (York, 2018; 364); a targets culture; a ‘bullying’ and ‘toxic’ work environment; and poor training and overwork. Furthermore, legal oversight is lacking as appeal rights have been withdrawn or reduced.
The Law Commission’s report recognises this in part and recommends that greater discretionary decision-making is limited to discretion to accept a greater range of possible evidence ‘with a view to deciding whether the underlying requirement of the Immigration Rules is satisfied.’ (12.4). This is similar to the system in New Zealand, which the Commission’s Consultation seemed particularly influenced by (Consultation, 6.50). However, the Commission’s proposal for greater discretion for UK immigration decision-makers does not adequately answer the critiques raised by lawyers operating in New Zealand, and quoted by the Commission itself:
Officers have “absolute discretion” in decision-making. This means that they can simply decline an application because they choose not to believe an applicant, or trust a document, or accept on face value a statement made. Basically, decision-making is based on assumptions, rather than facts.” (Consultation, 6.51)
Like other consultation responders (Report, 5.116), we have witnessed first-hand how poor Home Office decision-making can have an impact on our client’s rights and wellbeing. We chose to disagree that there should be more discretion in the Immigration Rules, not because we have a fundamental objection to discretionary decision-making, but because a superficial reformatting of the Immigration Rules cannot address the systemic problems which underlie the UK’s immigration system. Only changes to the policy and political context can do this, and that is beyond the scope of the Law Commission’s remit.
However, the Law Commission have taken the concerns of respondents into account to an extent, acknowledging that:
The clear view of respondents was that, in the absence of safeguard to ensure high quality and consistent decision-making, reduced prescription should be confined to evidential requirements. (1.26).
We are pleased that the Law Commission has taken these views into account in building its recommendations, but even restricting the discretion of the decision-maker to evidential requirements can lead to the loss of rights by migrants if decision-making is incompetent or taken in bad faith.
Where decision-makers are put under pressure because of staff cuts, and target chasing, migrants’ rights become vulnerable to a culture of disbelief and refusal culture. This culture is already well documented in the Home Office’s asylum decision-making, and in the Windrush scandal. It is a fundamental cultural shift in the Home Office that is necessary: one that reformatting the Immigration Rules cannot achieve by itself. The Law Commission report obliquely references this, arguing that:
Training is needed for caseworkers to make the shift from a mandatory mindset to the more flexible evaluative approach needed in applying more open-ended evidential requirements. (1.44)
This acknowledgement does not go far enough to challenge the negative internal culture of the Home Office. Furthermore, it is disappointing that this brief recognition of the refusal culture is not supported by a formal recommendation, either for a change in mindset or for training. The Law Commission’s recommendations do too little to address the refusal culture, and in order to safely and confidently reform the immigration rules, rights of appeal need to be reinstated. The Immigration Act 2014 abolished appeals on the grounds of ‘not in accordance with the immigration rules’ and ‘that a discretion should have been exercised differently’ (in the former section 84 Nationality Immigration and Asylum Act 2002). Remaining rights of appeal on human rights grounds fail to offer protection against poor administrative decision-making in many cases (as evident in Adjei, for example). Without effective rights of appeal, a much less prescriptive approach will open more applicants to negative effects of the refusal culture and reformatting the Immigration Rules will be limited to ‘tinkering around the edges’ of the real issues (5.67).
However, we acknowledge the Law Commission’s need to balance setting recommendations that are achievable and politically palatable, and its statutory independent role to propose law reform. As academics, we have a much greater freedom to observe the broader political context, and to directly critique the politics of immigration law in the UK as deplorable. But (as we argued in our Consultation response and in Judicial Review) because the Law Commission have sought to view the Immigration Rules almost entirely outside of their political context, the most important dimensions have been missed. The resulting recommendations represent only superficial change and a short term rather than long term response to the underlying issues.
Gemma Manning, Senior Lecturer, University of Huddersfield. Gemma’s research interests are in asylum, immigration and human rights law. Her research and writing focus on human rights and asylum law as well as issues surrounding immigration rules and policy in the public law context. Email: email@example.com
Dr Jonathan Collinson, Senior Lecturer, University of Huddersfield. Jonathan’s research interests are in immigration and asylum law, and his research and writing are informed by the methodologies of human rights law and of administrative law. He is also interested in issues related to citizenship, identity and exclusion. Email: firstname.lastname@example.org